Exhibit 4.6.1
Dated 22 September 2004
-----------------------
GRANITE MORTGAGES 04-3 PLC
as Current Issuer
and
THE BANK OF NEW YORK
as Note Trustee
-----------------------------------------------
ISSUER TRUST DEED
-----------------------------------------------
SIDLEY AUSTIN BROWN & WOOD
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of
1939, as amended Section of Deed
- ---------------- ---------------
310(a)...................................................................14.2
310(b)...................................................................14.2
310(c)...........................................................Inapplicable
311(a)...............................................................10.3(kk)
311(b)...............................................................10.3(kk)
311(c)...........................................................Inapplicable
312(a)..................................................................5(ee)
312(b)...................................................................19.2
312(c)...................................................................19.2
313..................................................................10.3(jj)
314(a)...................................................................5(u)
314(b)..................................................................5(gg)
314(c).............................................................16.1, 17.1
314(d)...................................................................17.1
314(e)...................................................................16.2
315(a).................................................................. 10.1
315(b)...................................................................10.8
315(c)....................................................................2.7
315(d)..................................................................10.12
316(a)..............................................................7.2, 11.2
316(b).................................................................2.2(d)
316(c)....................................................................7.2
317(a)....................................................................6.1
317(b)...................................................................5(p)
318(a).....................................................................15
318(b)...................................................................17.4
318(c)....................................................................1.4
* This Cross-Reference Table does not constitute part of this Deed and shall
not affect the interpretation of any of its terms or provisions.
i
Table of Contents
Clause Page
1. Definitions.........................................................1
2. Covenant to Repay etc...............................................3
3. Form, Issue and Deposit of Note Certificates........................6
4. Covenant of Compliance..............................................9
5. Covenants by the Current Issuer.....................................9
6. Enforcement........................................................15
7. Proceedings, Actions and Indemnification...........................16
8. Application of Moneys etc..........................................18
9. Remuneration and Indemnification of Note Trustee...................19
10. Supplement to the Trustee Acts.....................................21
11. Modification and Waiver............................................32
12. Entitlement to Treat holder as owner...............................33
13. Currency Indemnity.................................................33
14. Appointment, Removal and Retirement of Note Trustee................34
15. Trust Indenture Act Prevails.......................................36
16. Certificates and Opinions..........................................36
17. Release of Collateral..............................................37
18. Rights Cumulative..................................................38
19. Notices............................................................38
20. Third Party Rights.................................................39
21. Execution in Counterparts; Severability............................39
22. Governing Law and Jurisdiction; Appropriate Forum..................39
SCHEDULE 1 FORMS OF GLOBAL NOTE CERTIFICATES................................40
SCHEDULE 2 FORMS OF INDIVIDUAL NOTE CERTIFICATES............................85
SCHEDULE 3 CURRENT ISSUER CONDITIONS OF THE NOTES..........................119
SCHEDULE 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS..........................120
ii
THIS ISSUER TRUST DEED is made on 22 September 2004
BETWEEN:
(1) GRANITE MORTGAGES 04-3 PLC (registered number 5168395) a public limited
company incorporated under the laws of England and Wales whose registered
office is at Fifth Floor, 100 Wood Street, London EC2V 7EX as Current
Issuer; and
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch at 48th Floor, One Canada Square, Canary Wharf, London E14
5AL in its capacity as Note Trustee.
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Current
Issuer passed on 15 September 2004 the Current Issuer authorised the
creation and issue of the Current Issuer Notes.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the Current Issuer
Conditions.
NOW THIS ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. Definitions
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule Ninth
Amendment Deed made on 22 September, 2004 between, among others, the
Seller, Funding and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen & Overy LLP
on 22 September, 2004,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Deed.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Master Definitions Schedule.
1.2 All references in these presents:
(a) to principal and/or premium and/or interest in respect of the
Current Issuer Notes or to any monies payable by the Current Issuer
under these presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 4(B)
(Payment Dates and Interest Periods) or, if applicable, under any
undertaking or covenant given pursuant to Clause 2.2 (Covenant to
Repay).
1
(b) to "these presents" and/or to "this Deed" means this Trust Deed, the
schedules hereto, any deed expressed to be supplemental hereto and
the Current Issuer Deed of Charge all as from time to time
supplemented or modified in accordance with the provisions contained
in these presents and/or where applicable, therein contained.
(c) to guarantees or to an obligation being guaranteed shall be deemed
to include respectively references to indemnities or to an indemnity
being given in respect thereof.
(d) to any action, remedy or method of proceeding for the enforcement of
the rights of creditors shall be deemed to include, in respect of
any jurisdiction other than England, references to such action,
remedy or method of proceeding for the enforcement of the rights of
creditors available or appropriate in such jurisdiction as shall
most nearly approximate to such action, remedy or method of
proceeding described or referred to in these presents.
(e) to taking proceedings against the Current Issuer shall be deemed to
include references to proving in the winding up of the Current
Issuer.
(f) to DTC, Euroclear and Clearstream, Luxembourg shall be deemed to
include references to any other or additional clearing system as may
be approved in writing by the Note Trustee.
1.3 Unless the context otherwise requires words or expressions used in these
presents shall bear the same meanings as in the Companies Act 1985 of
England.
1.4 Whenever these presents refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made part of these
presents. All other Trust Indenture Act terms used in these presents that
are defined by the Trust Indenture Act, defined in the Trust Indenture
Act by reference to another statute or defined by SEC rule have the
meanings assigned to them in the Trust Indenture Act.
1.5 For the purposes of determining whether a direction, request or consent
has been received from the holders of at least 25 per cent. in Principal
Amount Outstanding of any class of Notes, the Principal Amount
Outstanding of any Note denominated in Dollars or Euro shall be converted
into Sterling at the relevant Dollar Currency Swap Rate or Euro Currency
Swap Rate, as the case may be.
1.6 "outstanding" means, in relation to the Current Issuer Notes, all the
Current Issuer Notes other than:
(a) those which have been redeemed in accordance with these presents;
(b) those in respect of which the date for redemption in accordance with
the provisions of the Current Issuer Conditions has occurred and for
which the redemption moneys (including all interest accrued thereon
to such date for redemption) have been duly paid to the Note Trustee
or the Principal Paying Agent in the manner provided for in the
Current Issuer Paying Agent and Agent Bank Agreement (and, where
appropriate, notice to that effect has been
2
given to the relevant class or classes of Noteholders in accordance
with Condition 14 (Notice to Noteholders)) and remain available for
payment in accordance with the Current Issuer Conditions;
(c) those which have been purchased and surrendered for cancellation as
provided in Condition 5 (Redemption, Purchase and Cancellation) and
notice of the cancellation of which has been given to the Note
Trustee;
(d) those which have become void under Condition 7 (Prescription);
(e) those mutilated or defaced Note Certificates which have been
surrendered or cancelled and in respect of which replacement Note
Certificates have been issued pursuant to Condition 13 (Replacement
of Notes);
(f) (for the purpose only of ascertaining the amount of the Current
Issuer Notes outstanding and without prejudice to the status for any
other purpose of the relevant Current Issuer Notes) those Note
Certificates which are alleged to have been lost, stolen or
destroyed and in respect of which replacements have been issued
pursuant to Condition 13 (Replacement of Notes);
(provided that) for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting (as defined in
Schedule 4 (Provisions for Meetings of Noteholders) hereto);
(ii) the determination of how many and which Current Issuer Notes
are for the time being outstanding for the purposes of Clauses
7 (Proceedings, Actions and Indemnification) and 11.2 (Waiver),
Condition 10 (Enforcement of Notes) and Schedule 4 (Provisions
for Meetings of Noteholders); and
(iii) any discretion, power or authority, whether contained in these
presents or provided by law, which the Note Trustee is required
to exercise in or by reference to the interests of the
Noteholders or any of them,
those Current Issuer Notes (if any) which are for the time being
held by any person (including but not limited to the Current Issuer
or any subsidiary or affiliate of either for the benefit of the
Current Issuer or any subsidiary or affiliate shall (unless and
until ceasing to be so held) be deemed not to remain outstanding.
2. Covenant to Repay etc.
2.1 The Current Issuer Notes: The aggregate principal amount of:
(a) the Series 1 Class A1 Notes is limited to US$981,400,000;
(b) the Series 1 Class A2 Notes is limited to (Euro)494,000,000;
(c) the Series 1 Class A3 Notes is limited to US$1,248,100,000;
(d) the Series 1 Class B Notes is limited to US$59,200,000;
3
(e) the Series 1 Class M Notes is limited to US$31,400,000;
(f) the Series 1 Class C Notes is limited to US$62,700,000;
(g) the Series 2 Class A1 Notes is limited to US$713,700,000;
(h) the Series 2 Class A2 Notes is limited to (Euro)800,150,000];
(i) the Series 2 Class B Notes is limited to (Euro)74,400,000;
(j) the Series 2 Class M Notes is limited to (Euro)57,900,000;
(k) the Series 2 Class C Notes is limited to (Euro)139,050,000;
(l) the Series 3 Class A1 Notes is limited to (GBP)411,250,000;
(m) the Series 3 Class A2 Notes is limited to (GBP)600,000,000;
(n) the Series 3 Class B Notes is limited to (GBP)54,350,000;
(o) the Series 3 Class M Notes is limited to (GBP)42,250,000; and
(p) the Series 3 Class C Notes is limited to (GBP)99,450,000.
2.2 Covenant to Repay: The Current Issuer covenants with the Note Trustee
that it will, in accordance with these presents, on the Final Maturity
Date of the Current Issuer Notes, or on such earlier date as the same or
any part thereof may become due and repayable thereunder in accordance
with the Current Issuer Conditions, pay or procure to be paid
unconditionally to or to the order of the Note Trustee in Sterling, Euro
or US dollars, as applicable, in London or New York City, as applicable,
in immediately available funds or same day funds, as applicable, the
principal amount of the Current Issuer Notes repayable on that date and
shall in the meantime and until all such payments (both before and after
any judgment or other order of a court of competent jurisdiction) are
duly made (subject to the provisions of the Current Issuer Conditions)
pay or procure to be paid unconditionally to or to the order of the Note
Trustee as aforesaid interest (which shall accrue from day to day) on the
Principal Amount Outstanding of the Current Issuer Notes at the rates set
out in or (as the case may be) calculated from time to time in accordance
with Condition 4 (Interest) and on the dates on which such interest
becomes due and payable in accordance with the Current Issuer Conditions
provided that:
(a) every payment of principal or interest in respect of the Current
Issuer Notes or any of them to or to the account of the Paying
Agents in the manner provided in the Current Issuer Paying Agent and
Agent Bank Agreement shall operate in satisfaction pro tanto of the
relative covenant by the Current Issuer in this Clause except to the
extent that there is default in the subsequent payment thereof to
the Noteholders in accordance with the Current Issuer Conditions;
(b) if any payment of principal or interest in respect of the Current
Issuer Notes or any of them is made after the due date, payment
shall be deemed not to have been made until either the full amount
is paid to the Noteholders or, if earlier, the seventh day after
notice has been given to the Noteholders in accordance
4
with the Current Issuer Conditions that the full amount has been
received by the Note Trustee or the Paying Agents, to the extent
that there is a failure in the subsequent payment to Noteholders
under the Current Issuer Conditions;
(c) in any case where payment of the whole or any part of the principal
amount of any Current Issuer Note is improperly withheld or refused
upon due presentation thereof (if so provided in the Current Issuer
Paying Agent and Agent Bank Agreement) interest shall accrue on the
whole or such part of such principal amount which has been so
withheld or refused (both before and after any judgment or other
order of a court of competent jurisdiction) at the rates aforesaid
from and including the date of such withholding or refusal up to and
including the date on which such principal amount due is paid to the
Noteholders or (if earlier) the seventh day after notice is given to
the Noteholders in accordance with the Current Issuer Conditions
that the full amount (including interest as aforesaid) payable in
respect of the principal amount is available for payment, provided
that, upon further due presentation thereof (if so provided in the
Current Issuer Paying Agent and Agent Bank Agreement), such payment
is in fact made; and
(d) notwithstanding any other provision of these presents, pursuant to
Section 316(b) of the Trust Indenture Act the right of any
Noteholder to receive payment of principal and interest on the
Current Issuer Notes, on or after the respective due dates expressed
in the Current Issuer Notes, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Noteholder.
2.3 Additional Interest: The Current Issuer shall pay Additional Interest in
accordance with Condition 4(B) (Payment Dates and Interest Periods).
2.4 On trust: The Note Trustee will hold the benefit of the covenants
contained in this Clause 2 (Covenant to Repay, etc) on trust for the
Noteholders and itself in accordance with these presents.
2.5 Note Trustee's requirements regarding Agents, etc.: At any time after a
Note Event of Default shall have occurred (which shall not have been
waived by the Note Trustee or remedied to its satisfaction) or the
Current Issuer Notes shall otherwise have become due and repayable or
Individual Note Certificates have not been issued when so required in
accordance with these presents and the Global Note Certificates, the Note
Trustee may:
(a) by notice in writing to the Current Issuer, the Principal Paying
Agent, the US Paying Agent, the Agent Bank, the Transfer Agent and
the Registrar require such Agents or any of them pursuant to the
Current Issuer Paying Agent and Agent Bank Agreement:
(i) to act thereafter, and until otherwise instructed by the Note
Trustee, as Agents respectively of the Note Trustee on the
terms provided in the Current Issuer Paying Agent and Agent
Bank Agreement (with consequential amendments as necessary and
save that the Note Trustee's liability under any provisions
thereof for the indemnification, remuneration and payment of
out-of-pocket expenses of the Agents
5
shall be limited to the amounts for the time being held by the
Note Trustee on the trusts of these presents relating to the
Current Issuer Notes and available for such purpose) and
thereafter to hold all Note Certificates and all sums,
documents and records held by them in respect of Current Issuer
Notes on behalf of the Note Trustee; and/or
(ii) to deliver up all Note Certificates and all sums, documents and
records held by them in respect of the Current Issuer Notes to
the Note Trustee or as the Note Trustee shall direct in such
notice provided that such notice shall be deemed not to apply
to any documents or records which the relevant Agent or the
Registrar, as the case may be, is obliged not to release by any
law or regulation; and/or
(b) by notice in writing to the Current Issuer require it to make all
subsequent payments in respect of the Current Issuer Notes to or to
the order of the Note Trustee with effect from the issue of any such
notice to the Current Issuer and until such notice is withdrawn,
Clause 2.2(a) above relating to the Current Issuer Notes shall cease
to have effect.
2.6 Interest following Default: The rate of interest payable in respect of
the Current Issuer Notes if they become immediately repayable pursuant to
a notice given by the Note Trustee pursuant to the Current Issuer
Conditions shall be calculated at three monthly intervals, the first of
which shall commence on the expiry of the Interest Period (as defined in
the Current Issuer Conditions) during which the Current Issuer Notes
become so repayable, in accordance with the Current Issuer Conditions
(with consequential amendments as necessary) except that the rates of
interest need not be published.
2.7 Exercise by Trustee following Default: If a Note Event of Default has
occurred and is continuing, the Note Trustee shall exercise any or all of
the rights and powers vested in it by these presents and use the same
degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs in accordance with Section 315(c) of the Trust Indenture Act.
3. Form, Issue and Deposit of Note Certificates
3.1 Global Note Certificates:
(a) The US Notes will be initially offered and sold pursuant to a
Registration Statement filed with the SEC. Each class of the US
Notes will be issued in fully registered global form and be
initially represented by a US Global Note Certificate and which, in
aggregate, will represent the aggregate Principal Amount Outstanding
of the US Notes.
(b) The Reg S Notes will be initially offered and sold outside the
United States to non-US persons pursuant to Reg S. Each class of the
Reg S Notes will be issued in fully registered global form and be
initially represented by a Reg S Global Note Certificate and which,
in aggregate, will represent the aggregate Principal Amount
Outstanding of the Reg S Notes.
6
(c) The Global Note Certificates shall be issued by the Current Issuer
and (1) in the case of the Dollar Notes, the Dollar Global Note
Certificates will be registered in the name of Cede & Co. as nominee
for DTC, and be deposited with, the DTC Custodian and (2) in the
case of the Euro Notes and the Sterling Notes, the Euro Global Note
Certificates and the Sterling Global Note Certificates will be
registered in the name of Citivic Nominees Limited as nominee for,
and will be deposited with, the Common Depositary.
(d) Interests in the US Global Note Certificates and the Reg S Global
Note Certificates shall be exchangeable, in accordance with their
respective terms and as set out in Clause 3.3 (Individual Note
Certificates) hereof, for Individual Note Certificates.
3.2 Form of Global Note Certificates: The Global Note Certificates shall be
printed or typewritten and shall be in the form or substantially in the
respective forms set out in Schedule 1 (Forms of Global Note
Certificates) and may be a facsimile which the Current Issuer shall
deposit with the DTC Custodian or the Common Depositary, as the case may
be. Each Global Note Certificate shall represent such of the outstanding
Current Issuer Notes of the relevant class as shall be specified therein
and shall be endorsed with the relevant Current Issuer Conditions and
each shall provide that it shall represent the aggregate Principal Amount
Outstanding of the relevant class of Current Issuer Notes from time to
time endorsed on the relevant Global Note Certificate and that the
aggregate Principal Amount Outstanding of the Current Issuer Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases and transfers
of interests therein in accordance with the terms of these presents and
the Current Issuer Paying Agent and Agent Bank Agreement. Any notation on
the Register to reflect the amount of any increase or decrease in the
Principal Amount Outstanding of the Current Issuer Notes represented by a
Global Note Certificate shall be made by or on behalf of the Registrar in
accordance with such Global Note Certificate and the Current Issuer
Paying Agent and Agent Bank Agreement. The Global Note Certificates shall
be issued only in registered form without coupons or talons and signed
manually or in facsimile by a person duly authorised by the Current
Issuer on behalf of the Current Issuer and the Current Issuer shall
procure that the Global Note Certificates shall be authenticated by or on
behalf of the Registrar on the Closing Date. The Global Note Certificates
so executed and authenticated shall be binding and valid obligations of
the Current Issuer, notwithstanding that such duly authorised person no
longer holds that office at the time the Registrar authenticates the
relevant Global Note Certificate. Title to the Current Issuer Notes shall
only pass by and upon the registration in the Register in respect thereof
in accordance with the provisions of the Current Issuer Paying Agent and
Agent Bank Agreement.
3.3 Individual Note Certificates: The Current Issuer shall issue Individual
Note Certificates only if one or more of the following applies while the
Current Issuer Notes are represented by Global Note Certificates. At any
time after the 40th day following the later of the Closing Date and the
date of the issue of such Global Note Certificates:
(a) (i) (in the case of the Dollar Global Note Certificates) DTC has
notified the Current Issuer that it is at any time unwilling or
unable to continue as, or has ceased to be, a clearing agency
registered under the Exchange Act, and a
7
successor to DTC registered as a clearing agency under the Exchange
Act is not able to be appointed by the Current Issuer within 90 days
of such notification; or (ii) (in the case of the Euro Global Note
Certificates and the Sterling Global Note Certificates) both
Euroclear and Clearstream, Luxembourg are closed for business for a
continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) or announce an intention permanently to
cease business and do so cease to do business and no alternative
clearing system satisfactory to the Note Trustee is available; or
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political sub-division
thereof) or of any authority therein or thereof having power to tax
or in the interpretation or administration by a revenue authority or
a court or administration of such laws or regulations which becomes
effective on or after the Closing Date, the Current Issuer or any
Paying Agent is or will be required to make any deduction or
withholding from any payment in respect of the Current Issuer Notes
which would not be required were the Current Issuer Notes
represented by Individual Note Certificates.
If required by this Clause 3.3 (Individual Note Certificates), then the
Current Issuer shall, at its sole cost and expense within 30 days of the
occurrence of the relevant event, issue Individual Note Certificates of
the same class as the class of Current Issuer Notes represented by the
relevant Global Note Certificate.
If Individual Note Certificates are issued, the beneficial interests
represented by the Reg S Global Note Certificate representing each class
shall be exchanged by the Current Issuer for Reg S Individual Note
Certificates of that class and the beneficial interests represented by
the US Global Note Certificate representing each class shall be exchanged
by the Current Issuer for US Individual Note Certificates of that class.
1.4 Form of Individual Note Certificates: The Individual Note Certificates
shall be printed or typewritten in accordance with all applicable legal
and stock exchange requirements and be in the form or substantially in
the relevant form set out in Schedule 2 (Forms of Individual Note
Certificates). Individual Note Certificates will be in the denominations,
and transferable in units, of (i) US$100,000 and integral multiples of
US$1,000 in excess thereof (in the case of the Dollar Notes) and (ii)
(GBP)50,000 and integral multiples of (GBP)1,000 in excess thereof (in
the case of the Sterling Notes) (iii) (Euro)50,000 and integral multiples
of (Euro)1,000 in excess thereof (in the case of the Euro Notes) each,
shall be serially numbered and shall be endorsed with the relevant
Current Issuer Conditions and a form of transfer in the form or
substantially in the relevant form also set out in Schedule 2 (Forms of
Individual Note Certificates). Title to the Individual Note Certificates
shall only pass by and upon the registration in the Register in respect
thereof in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement. The Individual Note Certificates shall be
issued only in registered form and signed manually or in facsimile by a
person duly authorised by or on behalf of the Current Issuer and the
Current Issuer shall procure that the Individual Note Certificates shall
be authenticated by or on behalf of the Registrar. Each Individual Note
Certificate so executed and authenticated shall be a binding and valid
obligation of the Current Issuer notwithstanding that such duly
authorised person no longer holds that office at the time the Registrar
authenticates the relevant Individual Note Certificate.
8
3.5 Indemnity: If the Current Issuer is obliged to issue or procure the issue
of any Individual Note Certificate pursuant to Clause 3.3 (Individual
Note Certificates) but fails to do so within 30 days of the occurrence of
the relevant event described in Clause 3.3 (Individual Note
Certificates), then the Current Issuer shall indemnify the Note Trustee
and the relevant Noteholders and keep them indemnified against any loss
or damage incurred by any of them if the amount received by the Note
Trustee or the relevant Noteholders in respect of the Current Issuer
Notes is less than the amount that would have been received had
Individual Note Certificates been issued in accordance with Clause 3.4
(Form of Individual Note Certificates). If and for so long as the Current
Issuer discharges its obligations under this indemnity, the breach by the
Current Issuer of the provisions of Clause 3.4 (Form of Individual Note
Certificates) shall be deemed to be cured ab initio.
4. Covenant of Compliance
4.1 Covenant: The Current Issuer covenants with the Note Trustee that it will
comply with and perform and observe all the provisions of these presents,
the Current Issuer Notes (including the Current Issuer Conditions), the
Current Issuer Deed of Charge, the Current Issuer Paying Agent and Agent
Bank Agreement, and the documents executed pursuant thereto and the other
Current Issuer Transaction Documents. The Current Issuer Conditions shall
be binding on the Current Issuer, the Noteholders, the Note Trustee and
all persons claiming through or under any of them. The Current Issuer
Notes are subject to the provisions of these presents, all of which shall
be binding on the Current Issuer, the Noteholders, the Note Trustee and
all persons claiming through or under any of them.
4.2 On trust: The Note Trustee shall hold the benefit of the covenants
contained in this Clause 4 (Covenant of Compliance) upon trust for itself
and the Noteholders according to its and their respective interests.
5. Covenants by the Current Issuer
The Current Issuer hereby covenants with the Note Trustee that, so long
as any of the Current Issuer Notes remains outstanding, it will:
(a) Books and Records: at all times keep such books of account and
records as may be necessary to comply with all applicable laws and
so as to enable accounts of the Current Issuer to be prepared and
allow the Note Trustee and any person appointed by the Note Trustee
free access to such books of account and records at all reasonable
times during normal business hours;
(b) Accounts for Stock Exchange: cause to be prepared and certified by
the Auditors of the Current Issuer in respect of each Financial
Year, accounts in such form as will comply with all relevant legal
and accounting requirements and all requirements for the time being
of any stock exchange, competent listing authority and/or quotation
system on which the Current Issuer Notes are listed, quoted and/or
traded;
(c) Noteholder Information: send to the Note Trustee two copies of every
balance sheet, profit and loss account, report, circular and notice
of general meeting and every other document issued or sent to its
shareholders or holders
9
of securities other than its shareholders (including the
Noteholders) (or any class of them) as soon as practicable after the
issue or publication thereof;
(d) Information: so far as permitted by applicable law, give or procure
to be given to the Note Trustee such opinions, certificates,
information and evidence as it shall require and in such form as it
shall require, including without limitation the procurement by the
Current Issuer of all such certificates called for by the Note
Trustee pursuant to these presents or the purpose of the discharge
or exercise of the duties, trusts, powers, authorities and
discretions vested in it under these presents or by operation of
law;
(e) Notice of Note Event of Default: give notice in writing to the Note
Trustee forthwith upon becoming aware of the occurrence of any Note
Event of Default or any Potential Note Event of Default immediately
upon becoming aware thereof, including the status of any such
default or matter and what action the Current Issuer is taking or
proposes to take with respect thereto, and without waiting for the
Note Trustee to take any action;
(f) Certificates Relating to Financial Information: give to the Note
Trustee (a) within 14 days after demand by the Note Trustee therefor
and (b) (without the necessity for any such demand) promptly after
the publication of its audited accounts in respect of each Financial
Year commencing with the Financial Year first ending after the date
hereof and in any event not later than 180 days after the end of
each such Financial Year a certificate signed by two directors of
the Current Issuer to the effect that as at a date not more than
seven days prior to the date of such certificate (the "certification
date") there did not exist and had not existed since the
certification date of the previous certificate (or in the case of
the first such certificate the date hereof) any Note Event of
Default (or if such exists or existed specifying the same) and that
during the period from and including the certification date of the
last such certificate (or in the case of the first such certificate
the date hereof) to and including the certification date of such
certificate the Current Issuer has complied, with all its
obligations contained in these presents and each of the Current
Issuer Transaction Documents to which it is a party or (if such is
not the case) specifying the respects in which it has not so
complied;
(g) Notice of Deferral of Payments: as soon as practicable after
becoming aware that any part of a payment of interest on the Current
Issuer Notes will be deferred or that a payment previously deferred
will be made in accordance with Condition 4 (Interest), give notice
thereof to the Noteholders in accordance with the Current Issuer
Conditions and, for so long as the Current Issuer Notes are listed
on the Official List of the UK Listing Authority and admitted to
trading by the London Stock Exchange and/or such other exchange(s)
or securities market(s) upon which the Current Issuer Notes may
become listed, to the UK Listing Authority and to the London Stock
Exchange and/or such other exchange(s) or securities market(s);
(h) Further Assurances: so far as permitted by applicable law, at all
times execute and do all such further documents, acts and things as
may be necessary at any time or times in the opinion of the Note
Trustee to give effect to these presents and the other Current
Issuer Transaction Documents;
10
(i) Agent Bank, Reference Banks etc.: at all times maintain an Agent
Bank, four Reference Banks, a Paying Agent, a Transfer Agent and a
Registrar in accordance with the Current Issuer Conditions;
(j) Notification of Non-Payment: procure that any Paying Agent notify
the Note Trustee forthwith in the event that (i) such Paying Agent
does not, on or before any Payment Date or due date, as the case may
be, for any payment in respect of any of the Current Issuer Notes,
receive unconditionally pursuant to the Current Issuer Paying Agent
and Agent Bank Agreement the full amount in the requisite currency
of the monies payable on such Payment Date or due date, as the case
may be, on all such Current Issuer Notes, or (ii) there are
insufficient funds in Sterling, Euro or US dollars, as the case may
be, available to the relevant Paying Agent to discharge the amount
of the monies payable on such Payment Date or due date, as the case
may be;
(k) Notification of Late Payment: in the event of the unconditional
payment to the Paying Agents or the Note Trustee of any sum due in
respect of any of the Current Issuer Notes or any of them being made
after the due date for payment thereof, forthwith give or procure to
be given notice to the relevant Noteholders in accordance with the
Current Issuer Conditions that such payment has been made;
(l) Listing and Admission to Trading: use reasonable endeavours to
maintain the listing of the Current Issuer Notes on the Official
List of the UK Listing Authority and their admission to trading by
the London Stock Exchange or, if it is unable to do so having used
reasonable endeavours, use reasonable endeavours to obtain and
maintain a quotation or listing of the Current Issuer Notes on such
other stock exchange or exchanges or securities market or markets as
the Current Issuer may decide (with the prior written approval of
the Note Trustee) and shall also upon obtaining a quotation or
listing of the Current Issuer Notes on such other stock exchange or
exchanges or securities market or markets enter into a trust deed
supplemental to these presents to effect such consequential
amendments to these presents as the Note Trustee may require or as
shall be requisite to comply with the requirements of any such stock
exchange or securities market;
(m) Change of Agents, etc.: subject to the Current Issuer Paying Agent
and Agent Bank Agreement, give notice to the Noteholders in
accordance with the Current Issuer Conditions of any appointment,
resignation or removal of any Agent Bank, Reference Bank, Paying
Agent, Transfer Agent or Registrar (other than the appointment of
the initial Agent Bank, Reference Banks, Paying Agents, Transfer
Agent and Registrar) after, except in the case of resignation,
having obtained the prior written approval of the Note Trustee (not
to be unreasonably withheld or delayed) thereto or any change of the
Specified Office of any Agent Bank, Paying Agent, Transfer Agent or
Registrar provided always that so long as any of the Current Issuer
Notes remains outstanding, in the case of the termination of the
appointment of the Agent Bank, the Transfer Agent or the Registrar,
or so long as any of the Current Issuer Notes remains liable to
prescription, in the case of the termination of the appointment of
the Principal Paying Agent, no such termination shall take effect
until a new Agent Bank, the Transfer Agent,
11
Registrar or Principal Paying Agent (as the case may be) has been
appointed on terms previously approved in writing by the Note
Trustee;
(n) Pre-Approval of Notices: obtain the prior written approval of the
Note Trustee to, and upon publication promptly give to the Note
Trustee and the Rating Agencies two copies of, every notice given to
the Noteholders in accordance with the Current Issuer Conditions
(such approval, unless so expressed, not to constitute approval for
the purposes of Section 21 of the Financial Services and Markets Act
2000 (the "FSMA") of the United Kingdom of any such notice the
content of which is an invitation or inducement to engage in
investment activities within the meaning of Section 21 of the FSMA);
(o) Meetings: from time to time as required or contemplated by these
presents or as reasonably requested by the Note Trustee, make
available through the Paying Agents or otherwise such documents as
may be required by the Noteholders in connection with Meetings;
(p) Compliance with Current Issuer Paying Agent and Agent Bank
Agreement: (A) observe and comply with its obligations and use its
reasonable endeavours to procure that the Agent Bank, the Paying
Agents, the Transfer Agent and the Registrar comply with and perform
all their respective obligations under the Current Issuer Paying
Agent and Agent Bank Agreement and any notice given by the Note
Trustee pursuant to Clause 2.5(a) and not make any amendment or
modification to such agreement or agree to waive or authorise any
breach thereof without the prior written approval of the Note
Trustee and notify the Note Trustee forthwith upon becoming aware of
any breach by any of the Agent Bank, the Paying Agents, the Transfer
Agent and/or the Registrar, and (B) ensure that each Paying Agent
under the Current Issuer Paying Agent and Agent Bank Agreement
agrees in writing to (1) hold funds received by such Paying Agent
for the payment of any sums due in respect of any Current Issuer
Notes for the relevant Noteholders or the Note Trustee in trust to
the extent required by Section 317(b) of the Trust Indenture Act,
and (2) notify the Note Trustee of any default by the Current Issuer
in making any such payment;
(q) Compliance with Current Issuer Transaction Documents: observe and
comply with its obligations and use its reasonable endeavours to
procure that each other party to any of the Current Issuer
Transaction Documents complies with and performs all its respective
obligations under any Current Issuer Transaction Document and not
make any amendment or modification to such agreement or agree to
waive or authorise any breach thereof without the prior written
approval of the Note Trustee and notify the Note Trustee forthwith
upon becoming aware of any breach by such other party to any Current
Issuer Transaction Document;
(r) Individual Note Certificates: notify the Note Trustee upon the
occurrence of any of the events referred to in Clause 3.3
(Individual Note Certificates) and shall promptly give notice
thereto and of its obligations to issue Individual Note Certificates
to the Noteholders in accordance with Condition 14 (Notice to
Noteholders);
12
(s) Exercise of Redemption Rights: subject to paragraph (t) below, in
the event that any notice of prepayment of the Current Issuer
Intercompany Loan is given under Clause 8 (Prepayment) of the
Intercompany Loan Terms and Conditions, the Current Issuer shall
exercise its right to redeem the Current Issuer Notes on the same
Payment Date under Condition 5(D) (Optional Redemption in Full) or,
as applicable, Condition 5(E) (Optional Redemption for Tax and other
Reasons);
(t) Redemption Requirements: not redeem or, as the case may be, give
notice of redemption to Noteholders of all or any part of a class or
classes of Current Issuer Notes pursuant to Condition 5(D) (Optional
Redemption in Full) or Condition 5(E) (Optional Redemption for Tax
and other Reasons) unless it shall first have provided to the Note
Trustee such certificates and opinions as may be required to be
given to the Note Trustee pursuant to and in accordance with
Condition 5(D) (Optional Redemption in Full) or, as the case may be
Condition 5(E)(Optional Redemption for Tax and other Reasons);
(u) United States Reporting Requirements: file with the Note Trustee
copies of the annual reports and of the information, documents, and
other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Current
Issuer is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act within 15 days after it files them with
the SEC and comply with the other provisions of Section 314(a) of
the Trust Indenture Act;
(v) Interest in Current Issuer Charged Property: ensure that, save as
permitted in these presents, the Current Issuer Deed of Charge and
the other Current Issuer Transaction Documents, no person other than
the Current Issuer and the Note Trustee shall have any equitable or
beneficial interest in the Current Issuer Charged Property;
(w) Maintenance of Current Issuer Cash Manager: ensure that there is at
all times a cash manager appointed in accordance with the provisions
of the Current Issuer Cash Management Agreement;
(x) Tax Deduction: take reasonable steps to ensure that it does not
engage in any course of conduct that would lead to a deduction, for
United Kingdom corporation tax purposes, in respect of accrued
interest or discount on the Current Issuer Notes by the Current
Issuer being denied, postponed or restricted (whether such denial,
postponement or restriction results from the application of
paragraph 2 or 13 of Schedule 9 of the Finance Act 1996 or
otherwise);
(y) United Kingdom and United States Tax Status: ensure that it is at
all times solely resident in the United Kingdom for United Kingdom
tax purposes and has no branch, business establishment or other
fixed establishment outside the United Kingdom; and furthermore,
ensure that it will not engage in any activities in the United
States (directly or through agents), will not derive any income from
United States sources as determined under United States income tax
principles, will not hold any property if doing so would cause it to
be engaged or deemed to be engaged in a trade or business within the
United
13
States as determined under United States income tax principles, and
will not (and will use its best efforts to procure that any
affiliate of the Current Issuer, including Funding, will not) take
any position that would contradict the treatment of the Current
Issuer Notes as indebtedness for United States federal income tax
purposes;
(z) Current Issuer Pre-Enforcement Priority of Payments: prior to any
enforcement of the security created under the Current Issuer Deed of
Charge, ensure that amounts standing to the credit of the Current
Issuer Transaction Account on a Payment Date will be applied by the
Current Issuer in or towards satisfaction of such of the obligations
set out in the applicable Current Issuer Pre-Enforcement Priority of
Payments as may be, at any given time, then due and payable (in each
case only if and to the extent that payments or provisions of a
higher order of priority which are also due and payable or, where
relevant, are likely to fall due at that time or prior to the next
succeeding Payment Date have been made or provided for in full);
(aa) Availability of Information: make available for inspection by
Noteholders at the Specified Office of the Principal Paying Agent
during normal business hours on any London Business Day copies of
each balance sheet and profit and loss account sent to the Note
Trustee pursuant to these presents, the Current Issuer Paying Agent
and Agent Bank Agreement and the other Current Issuer Transaction
Documents;
(bb) Ratings: furnish, or procure that there is furnished, from time to
time, any and all documents, instruments, information and
undertakings that may be reasonably necessary in order to maintain
the current ratings of the Current Issuer Notes by the Rating
Agencies (save that when any such document, instrument, information
and/or undertaking is not within the possession or control of the
Current Issuer, the Current Issuer agrees to use its reasonable
efforts to furnish, or procure that there is furnished, from time to
time any such documents, instruments, information and undertakings
as may be reasonably necessary in order to maintain the current
ratings of the Current Issuer Notes by the Rating Agencies);
(cc) Calculations: procure that there are done on its behalf, all
calculations required pursuant to the Current Issuer Conditions;
(dd) DTC, Euroclear and Clearstream, Luxembourg: use its reasonable
endeavours to procure that DTC, Euroclear and/or Clearstream,
Luxembourg (as the case may be) issue(s) any certificate or other
document requested by the Note Trustee acting reasonably pursuant to
these presents as soon as practicable after such request;
(ee) Information Regarding Noteholders: pursuant to Section 312(a) of the
Trust Indenture Act, furnish or cause to be furnished to the Note
Trustee on 31st March and 30th September of each year, commencing
31st March 2005, and at such other times as the Note Trustee may
request in writing, all information in the possession or control of
the Current Issuer or of any of its Paying Agents as to the names
and addresses of the Noteholders, and requiring the Note
14
Trustee to preserve, in as current a form as is reasonably
practicable, all such information so furnished to it;
(ff) Officers' Certificates and Opinions of Counsel; Statements to be
Contained Therein: upon any application, demand or request by the
Current Issuer to the Note Trustee to take any action under any of
the provisions of these presents (other than the issuance of Current
Issuer Notes) and upon request of the Note Trustee, furnish to the
Note Trustee an officers' certificate and opinion of counsel
complying with the provisions of Section 314 of the Trust Indenture
Act (an "Officers' Certificate" and "Opinion of Counsel",
respectively);
(gg) Protection of Security: promptly after the execution and delivery of
these presents and each supplement hereto, pursuant to Section
314(b) of the Trust Indenture Act furnish to the Note Trustee an
Opinion of Counsel stating that in the opinion of such counsel,
appropriate steps have been taken to protect the security interests
of the Note Trustee in the Current Issuer Charged Property under the
Current Issuer Deed of Charge and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary; and the Current Issuer shall furnish annually
to the Note Trustee, not more than three (3) months after the
anniversary of the signing of this Deed, commencing with calendar
year 2005, an Opinion of Counsel stating either that, in the opinion
of such counsel, (i) such action has been taken as is necessary for
the proper protection of the security interests of the Note Trustee
in the Current Issuer Charged Property under the Current Issuer Deed
of Charge and reciting the details of such action or (ii) no such
action is necessary for any of such purposes;
(hh) Authorised Signatories: upon the execution of this Deed and
thereafter forthwith upon any change of the same, deliver to the
Note Trustee (with a copy to the Principal Paying Agent and the
Registrar) a list of the Authorised Signatories of the Current
Issuer, together with certified specimen signatures of the same; and
(ii) Current Issuer Notes: in order to enable the Note Trustee to
ascertain the number and amount of Current Issuer Notes for the time
being outstanding for any of the purposes referred to in the proviso
to the definition of "outstanding" contained in Clause 1.6, deliver
to the Note Trustee forthwith upon being so requested in writing by
the Note Trustee a certificate in writing signed by two Authorised
Signatories of the Current Issuer setting out the total number and
the principal amount of the Current Issuer Notes, if any, which:
(i) up to and including the date of such certificate have been
purchased by the Current Issuer and cancelled; and
(ii) are at the date of such certificate beneficially held by or for
the account of the Current Issuer, any of its subsidiaries or
holding companies or other subsidiaries of such holding
companies.
6. Enforcement
6.1 Proceedings: At any time after the occurrence of a Note Event of Default,
the Note
15
Trustee may, at its discretion and without notice (and in compliance with
Section 317(a) of the Trust Indenture Act), recover judgment in its own
name and as trustee of an express trust against the Current Issuer for
the whole amount of principal and interest remaining unpaid; institute
such proceedings and/or take other action against or in relation to the
Current Issuer or any other person as it may think fit to enforce the
obligations of the Current Issuer under these presents, the Current
Issuer Notes and/or any of the other Current Issuer Transaction Documents
but it shall not be bound to take such action save as provided in Clause
7 (Proceedings, Actions and Indemnification).
6.2 Exercise of Powers: The Note Trustee shall be entitled to enforce the
obligations of the Current Issuer under the Current Issuer Notes
(including the Current Issuer Conditions) and to exercise any other
rights, powers, authorities and discretions conferred upon the Note
Trustee in the Current Issuer Conditions as scheduled to this Trust Deed,
which shall be read and construed as one document with the Current Issuer
Notes.
6.3 Evidence of Default: Unless the contrary be proved, proof that as regards
any specified Current Issuer Note the Current Issuer has made default in
paying any amount due in respect of such Current Issuer Note shall be
sufficient evidence that the Current Issuer has made the like default as
regards all other Current Issuer Notes in respect of which the
corresponding amount is then due and payable in accordance with the
Current Issuer Conditions and for the purposes of this Clause 6.3
(Evidence of Default) an amount shall be a corresponding amount
notwithstanding that it is due in respect of a Current Issuer Note of a
different denomination from that in respect of the above specified
Current Issuer Note. The Note Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Note Trustee and the Noteholders allowed in any
judicial proceedings relative to the Current Issuer, its creditors or its
property.
7. Proceedings, Actions and Indemnification
7.1 The Note Trustee shall not be bound to take any proceedings mentioned in
Clause 6.1 (Proceedings) or any other action in relation to these
presents, the Current Issuer Notes or any documents executed pursuant
thereto or any of the other Current Issuer Transaction Documents to which
the Note Trustee is a party unless:
(a) it shall have been so directed by an Extraordinary Resolution of the
Senior Noteholders or the Mezzanine Noteholders or the Class M
Noteholders or the Junior Noteholders as appropriate; or
(b) it shall have been so requested in writing by the holders of at
least one quarter of the aggregate Principal Amount Outstanding of
the Senior Notes or by the holders of at least one quarter of the
aggregate Principal Amount Outstanding of the Mezzanine Notes or by
the holders of at least one quarter of the aggregate Principal
Amount Outstanding of the Class M Notes or by the holders of at
least one quarter of the aggregate Principal Amount Outstanding of
the Junior Notes; and
(c) in either case it shall have been indemnified and/or secured to its
satisfaction against all liabilities, proceedings, claims, demands,
costs, charges and
16
expenses to which it may thereby become liable or which may be
incurred by it in connection therewith,
provided that:
(i) the Note Trustee shall not be held liable for the consequence
of taking any such action and may take such action without
having regard to the effect of such action on individual
Noteholders or any other Current Issuer Secured Creditor; and
(ii) save to the extent provided otherwise under the Current Issuer
Conditions, the Note Trustee shall not and shall not be obliged
to act at the direction or request of the Mezzanine Noteholders
as aforesaid unless at such time no Senior Notes are then
outstanding;
(iii) save to the extent provided otherwise under the Current Issuer
Conditions, the Note Trustee shall not and shall not be obliged
to act at the direction or request of the Class M Noteholders
as aforesaid unless at such time no Senior Notes and no
Mezzanine Notes are then outstanding; and
(iv) save to the extent provided otherwise under the Current Issuer
Conditions, the Note Trustee shall not and shall not be obliged
to act at the direction or request of the Junior Noteholders as
aforesaid unless at such time there are no Senior Notes, no
Mezzanine Notes and no Class M Notes then outstanding.
7.2 Only Note Trustee to Enforce: Only the Note Trustee may enforce the
provisions of these presents, the Current Issuer Conditions or the
Current Issuer Notes. No Noteholder or other Current Issuer Secured
Creditor shall be entitled to proceed directly against the Current Issuer
or any other party to any of the Transaction Documents unless the Note
Trustee having become bound as aforesaid to institute proceedings has
failed to do so within 30 days of becoming so bound and such failure is
continuing; provided that save to the extent provided in the Current
Issuer Conditions, no Mezzanine Noteholder, no Class M Noteholder and no
Junior Noteholder shall be entitled to take proceedings for the winding
up or administration of the Current Issuer unless there are no
outstanding Current Issuer Notes of a class with higher priority, or if
Current Issuer Notes of a class with higher priority are outstanding,
there is consent of Noteholders of not less than 25 per cent. of the
aggregate principal amount of the Current Issuer Notes outstanding of the
class or classes of Current Issuer Notes with higher priority.
Notwithstanding the foregoing and notwithstanding any other provision of
these presents, consistent with Section 316 of the Trust Indenture Act,
the right of each Noteholder to receive principal and/or interest on its
Current Issuer Notes on or after the due date for payment of such
principal or interest in accordance with the Current Issuer Conditions or
to institute suit for the enforcement of the payment of that principal
and/or interest may not be impaired or affected without the consent of
the such Noteholder. Notwithstanding anything herein to the contrary any
action to be taken under Section 316(a) of the Trust Indenture Act shall
comply with Section 316(c) of the Trust Indenture Act and the record date
for the purpose of Section 316(c) shall be such date as the Current
Issuer shall notify to the relevant Noteholders in accordance with the
Current Issuer
17
Conditions.
8. Application of Moneys etc.
8.1 Application of Moneys: All moneys received by the Note Trustee in respect
of the Current Issuer Notes or amounts payable under these presents will
(including any moneys which represent principal or interest in respect of
Current Issuer Notes which have become void under the Current Issuer
Conditions) be held by the Note Trustee on trust to apply them (subject
to Clause 8.3 (Authorised Investments)) in accordance with the Current
Issuer Priority of Payments.
8.2 Investment of Moneys: If the amount of the moneys at any time available
for payment of principal and interest in respect of the Current Issuer
Notes under Clause 8.1 (Application of Moneys) shall be less than a sum
sufficient to pay at least one-tenth of the principal amount of the
Current Issuer Notes then outstanding, the Note Trustee may, at its
discretion, invest such moneys upon some or one of the investments
hereinafter authorised with power from time to time, with like
discretion, to vary such investments; and such investment with the
resulting income thereof may be accumulated until the accumulations
together with any other funds for the time being under the control of the
Note Trustee and available for the purpose shall amount to a sum
sufficient to pay at least one-tenth of the principal amount of the
Current Issuer Notes then outstanding and such accumulation and funds
(after deduction of any taxes and any other deductibles applicable
thereto) shall then be applied in the manner aforesaid.
8.3 Authorised Investments: Any moneys which under the trusts herein
contained may be invested by the Note Trustee may be invested in the name
or under the control of the Note Trustee in any Authorised Investments
and the Note Trustee may at any time vary or transfer any of such
Authorised Investments for or into other such Authorised Investments as
the Note Trustee in its absolute discretion may determine, and shall not
be responsible (save where any loss results from the Note Trustee's
fraud, wilful default or negligence or that of its officers or employees)
for any loss occasioned by reason of any such investments whether by
depreciation in value or otherwise, provided that such Authorised
Investments were made in accordance with the foregoing provisions.
8.4 Payment to Noteholders: Any payment to be made in respect of the Current
Issuer Notes by the Current Issuer or the Note Trustee may be made in the
manner provided in the Current Issuer Conditions and any payment so made
shall be a good discharge, to the extent of such payment, to the Current
Issuer or the Note Trustee, as the case may be.
8.5 Production of Note Certificates: Upon any payment under Clause 8.4
(Payment to Noteholders) of principal or interest, the Note Certificate
representing the relevant Current Issuer Note in respect of which such
payment is made shall, if the Note Trustee so requires, be produced to
the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall, in the case of part payment, require the
Registrar to make a notation in the Register of the amount and date of
payment thereon or, in the case of payment in full, shall cause such Note
Certificate to be surrendered or shall cancel or procure the same to be
cancelled and shall certify or procure the certification of such
cancellation, in each case subject to
18
and in accordance with the Current Issuer Paying Agent and Agent Bank
Agreement.
9. Remuneration and Indemnification of Note Trustee
9.1 Normal Remuneration: The Current Issuer shall (subject as hereinafter
provided) pay to the Note Trustee remuneration of such amount as shall
from time to time be agreed by the Current Issuer and the Note Trustee.
The rate of remuneration in force from time to time may upon the final
redemption of the whole of the Current Issuer Notes of any Series be
reduced by such amount as shall be agreed between the Current Issuer and
the Note Trustee, such reduced remuneration to be calculated from such
date as shall be agreed as aforesaid. Such remuneration shall be payable
in priority to payments to Noteholders and other Current Issuer Secured
Creditors on each Payment Date subject to and in accordance with the
relevant Current Issuer Priority of Payments. Such remuneration shall
accrue from day to day and be payable up to and including the date when,
all the Current Issuer Notes having become due for redemption, the
redemption monies and interest thereon to the date of redemption have
been paid to the Principal Paying Agent or, as the case may be, the Note
Trustee PROVIDED THAT if upon due presentation of any Note Certificate or
any cheque payment of the monies due in respect thereof is improperly
withheld or refused, remuneration will commence again to accrue until
payment to Noteholders is made.
9.2 Extra Remuneration: In the event of the occurrence of a Note Event of
Default or the Note Trustee considering it expedient or necessary or
being requested by the Current Issuer to undertake duties which the Note
Trustee and the Current Issuer agree to be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note Trustee
under these presents, the Current Issuer shall pay to the Note Trustee
such additional remuneration as shall be agreed between them;
9.3 Failure to Agree: In the event of the Note Trustee and the Current Issuer
failing to agree:
(a) (in a case to which Clause 9.1 (Normal Remuneration) applies) upon
normal remuneration; or
(b) (in a case to which Clause 9.2 (Extra Remuneration) applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee under
these presents, or upon such additional remuneration;
such matters shall be determined by an investment bank (acting as an
expert and not as an arbitrator) selected by the Note Trustee and
approved by the Current Issuer or, failing such approval, nominated (on
the application of the Note Trustee) by the President for the time being
of The Law Society of England and Wales (the expenses involved in such
nomination and the fees of such investment bank being payable by the
Current Issuer) and the determination of any such investment bank shall
be final and binding upon the Note Trustee and the Current Issuer.
9.4 Expenses: In addition to the remuneration hereunder, the Current Issuer
shall on written request, pay all other costs, charges and expenses
(against production of invoices) which the Note Trustee may properly
incur in relation to:
19
(a) the negotiation, preparation and execution of, the exercise of its
powers and discretions and the performance of its duties under these
presents and any other Current Issuer Transaction Documents
including, but not limited to legal and travelling expenses; and
(b) any other action taken by or on behalf of the Note Trustee to
enforce the obligations of the Current Issuer under or resolving any
doubt in respect of these presents and/or any of the other Current
Issuer Transaction Documents.
9.5 Indemnity: The Current Issuer shall indemnify the Note Trustee in respect
of all proceedings, claims, demands, losses, costs, charges, expenses and
liabilities to which it (or any person appointed by it to whom any trust,
power, authority or discretion may be delegated by it in the execution or
purported execution of the trusts, powers, authorities or discretions
vested in it by or pursuant to these presents and any of the other
Current Issuer Transaction Documents) may be or become liable or which
may be properly incurred by it (or any such person as aforesaid) in the
execution or purported execution of any of its trusts, powers,
authorities and 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 these presents and any of the other Current Issuer
Transaction Documents provided that it is expressly stated that Clause
10.12 (Note Trustee Liable for Negligence etc.) shall apply in relation
to these provisions.
9.6 Stamp Duties: The Current Issuer shall, pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of doubt
any duty levied under the Stamp Act 1891 as amended and supplemented, (if
any) payable in the United Kingdom and/or Jersey on or arising out of or
in consequence of:
(a) the execution and delivery of these presents and any other Current
Issuer Transaction Document to which the Note Trustee is a party;
(b) the constitution and issue of the Current Issuer Notes;
(c) the initial delivery of the Note Certificates representing the
Current Issuer Notes; and
(d) any action in any jurisdiction taken by or on behalf of the Note
Trustee. If the Note Trustee (or any Noteholder or Current Issuer
Secured Creditor) where permitted under these presents so to do)
shall take any proceedings against the Current Issuer in any other
jurisdiction and if for the purpose of any such proceedings these
presents or any Note Certificates are taken into any such
jurisdiction and any stamp duties or other duties or taxes become
payable thereon in any such jurisdiction, the Current Issuer will
pay (or reimburse the person making payment of) such stamp duties or
other duties or taxes (including penalties).
9.7 VAT: The Current Issuer shall in addition pay to the Note Trustee an
amount equal to any value added tax or similar tax chargeable in respect
of its remuneration under these presents.
9.8 Interest: Subject as provided in Clause 9.9 (Payment), all sums payable
by the Current Issuer under this Clause 9 (Remuneration and
Indemnification of Note
20
Trustee) shall be payable on demand or, in the case of any remuneration
payable under Clause 9.1 (Normal Remuneration) on the due date specified
therein and shall carry interest at the rate per annum, which is one per
cent. per annum above the base rate from time to time of the National
Westminster Bank Plc from the date on which they were paid, charged or
incurred by the Note Trustee or, in the case of remuneration, the due
date for payment thereof, to the date of actual payment, and in all other
cases shall (if not paid on the date specified in such demand or, if
later, within three days after such demand and, in either case, the Note
Trustee so requires) carry interest at such rate from the date specified
in such demand.
9.9 Payment: Notwithstanding the other provisions of this Deed, any amount
owing by the Current Issuer pursuant to this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall only be payable by the Current
Issuer subject to and in accordance with the applicable Current Issuer
Priority of Payments which applies at such time.
9.10 Apportionment: The Note Trustee shall be entitled in its absolute
discretion to determine in respect of which Series of Current Issuer
Notes any costs, charges, expenses or liabilities incurred under these
presents have been incurred or to allocate such costs, charges, expenses
or liabilities between two or more Series of Current Issuer Notes.
9.11 Survival: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 9 (Remuneration and Indemnification
of Note Trustee) shall continue in full force and effect notwithstanding
such discharge.
10. Supplement to the Trustee Acts
10.1 Trustee Act 1925 and Trustee Act 2000: The Note Trustee shall have all
the powers conferred upon trustees by the Trustee Act 1925 and the
Trustee Act 2000 of England and Wales and by way of supplement thereto it
is expressly declared as set out in the remaining provisions of this
Clause 10 (Supplement to Trustee Acts) (which provisions, except as
expressly provided therein, shall be in lieu of the provisions contained
in Section 315(a) of the Trust Indenture Act).
10.2 Reliance on Information:
(a) The Note Trustee may in relation to these presents or the Current
Issuer Transaction Documents act and rely upon the opinion or advice
of, or a certificate or a report or any information obtained from,
any lawyer, banker, valuer, surveyor, securities company, broker,
auctioneer, accountant or other expert in the United Kingdom or
elsewhere, whether obtained by the Current Issuer, the Note Trustee
or otherwise, whether or not any of the aforesaid or any engagement
letter or other document entered into by the Note Trustee and the
relevant person in connection therewith contains any monetary or
other limit on the liability of the relevant person and the Note
Trustee shall not be responsible for any loss occasioned by so
acting or relying on. Any such opinion, advice, certificate or
information may be sent or obtained by letter, facsimile
reproduction or in any other form and the Note Trustee shall not be
liable for acting in good faith on any opinion, advice, certificate
or information purporting to be so conveyed although the same shall
contain some error or
21
shall not be authentic provided that such error or lack of
authenticity is not manifest.
(b) Except in the event of wilful default or manifest error, the Note
Trustee may call for and shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of the Current
Issuer or any other person in respect of every matter and
circumstance for which a certificate is expressly provided for under
these presents, the Current Issuer Conditions or any other Current
Issuer Transaction Document and to call for and rely upon a
certificate of the Agent Bank, any Paying Agent, Registrar, Transfer
Agent, any Reference Bank or any other person reasonably believed by
it to be genuine as to any other fact or matter prima facie within
the knowledge of such Agent Bank, Paying Agent, Registrar, Transfer
Agent, Reference Bank or such other person as sufficient evidence
thereof and the Note Trustee shall not be bound in any such case to
call for further evidence or be responsible for any loss, liability,
costs, damages, expenses or inconvenience that may be caused by it
failing to do so.
10.3 Powers and Duties:
(a) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be liable
whatsoever for the nature, status, creditworthiness or solvency of
the Current Issuer. Each Noteholder and each other Current Issuer
Secured Creditor shall be solely responsible for making its own
independent appraisal of and investigation into the financial
condition, creditworthiness, affairs, status and nature of the
Current Issuer and the Note Trustee shall not at any time have any
responsibility for the same and each Noteholder and other Current
Issuer Secured Creditors shall not rely on the Note Trustee in
respect thereof.
(b) Save as required for the purposes of the Trust Indenture Act, the
Note Trustee shall not be responsible for the execution, legality,
effectiveness, adequacy, genuineness, validity or enforceability or
admissibility in evidence of any Current Issuer Transaction Document
or any other document entered into in connection therewith or any
security thereby constituted or purported to be constituted thereby
nor shall it be responsible or liable to any person because of any
invalidity of any provision of such documents or the
unenforceability thereof, whether arising from statute, law or
decision of any court.
(c) The Note Trustee shall not be responsible for the scope or accuracy
of any recitals, statements, warranty, representation or covenant of
any party (other than the Note Trustee) contained herein or in any
other Current Issuer Transaction Document or any other document
entered into in connection therewith and shall assume the accuracy
and correctness thereof.
(d) The Note Trustee may accept without enquiry, requisition or
objection such title as the Current Issuer may have to the Current
Issuer Charged Property or as Funding may have to the Funding
Charged Property or any part thereof from time to time and shall not
be required to investigate or make any enquiry into or be liable for
any defect in the title of the Current Issuer to the Current Issuer
Charged Property or of Funding to the Funding Charged Property or
any part thereof from time to time whether or not any defect was
known to the
22
Note Trustee or might have been discovered upon examination, inquiry
or investigation and whether or not capable of remedy.
(e) The Note Trustee shall not be bound to give notice to any person of
the execution of these presents or of an Event of Default under the
Current Issuer Intercompany Loan Agreement nor shall it have any
duty to make any investigation in respect of or in any way be liable
whatsoever for the registration, filing, protection or perfection of
any security constituted by any Current Issuer Transaction Document
relating to the Current Issuer Charged Property or the priority of
the security created thereby and shall not be liable for any
failure, omission or defect in perfecting, protecting, procuring the
registration of or further assuring the security created or
purported to be created thereby.
(f) The Note Trustee shall not have any duty to make any investigation
in respect of or in any way be liable whatsoever for the failure to
call for delivery of documents of title to or require any transfers,
legal mortgages, charges or other further assurances in relation to
any of the assets the subject matter of any of these presents or any
other document.
(g) The Note Trustee shall be under no obligation to monitor or
supervise and shall not have any duty to make any investigation in
respect of or in any way be liable whatsoever for the performance or
observance by the Current Issuer or any other person of the
provisions of these presents or any other Current Issuer Transaction
Document and shall be entitled to assume that each person is
properly performing and complying with its obligations.
(h) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be liable
whatsoever for the existence, accuracy or sufficiency of any legal
or other opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered or
obtained at any time in connection with the Current Issuer Charged
Property or any Current Issuer Transaction Document.
(i) The Note Trustee shall have no responsibility whatsoever to any
Current Issuer Secured Creditor as regards any deficiency which
might arise because the Note Trustee is subject to any Tax in
respect of the Current Issuer Charged Property or any part thereof
or any income therefrom or any proceeds thereof or is required by
law to make any withholding or deduction from any payment to any
Current Issuer Secured Creditor.
(j) The Note Trustee will not be responsible or liable for any
inadequacy or unfitness of any Current Issuer Charged Property as
security or any decline in value of any loss realised upon any
disposition of the Current Issuer Charged Property.
(k) The Note Trustee shall not be responsible for, nor shall it have any
liability with respect to, any loss or theft of the Current Issuer
Charged Property.
(l) The Note Trustee shall not be liable or responsible for any loss,
cost, damage, expense or inconvenience which may result from
anything done or omitted to
23
be done by it under these presents or under any of the other Current
Issuer Transaction Documents save where the same arises as a result
of the Note Trustee's fraud, wilful default or negligence.
(m) The Note Trustee shall not be responsible for the receipt or
application by the Current Issuer of the proceeds of the Current
Issuer Notes, the exchange of any Global Note Certificate for
another Global Note Certificate or Individual Note Certificates or
the exchange of any Individual Note Certificate for another
Individual Note Certificate or the delivery of any Global Note
Certificate or Individual Note Certificates to the person(s)
entitled to it or them.
(n) The Note Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets of the
trust as the Note Trustee may determine, including for the purpose
of depositing with a custodian this Deed or any Current Issuer
Transaction Document and the Note Trustee shall not be responsible
for any loss, liability, expense, demand, cost, claim or proceedings
incurred by reason of the misconduct, omission or default on the
part of any person appointed by it hereunder or be bound to
supervise the proceedings or acts of any such person.
(o) The Note Trustee shall (save as expressly otherwise provided in
these presents or in any other Current Issuer Transaction Document)
as regards all rights, powers, authorities and discretions vested in
it by these presents or any other Current Issuer Transaction
Document, or by operation of law, have absolute and uncontrolled
discretion as to the exercise or non-exercise thereof and whenever
the Note Trustee is bound to act at the request or direction of the
Noteholders or any class of them, the Note Trustee shall
nevertheless not be so bound unless first indemnified to its
satisfaction against all actions, proceedings, claims and demands to
which it may render itself liable and all costs, expenses, damages
and liabilities which it may incur by so doing.
(p) The Note Trustee as between itself and the Noteholders or any class
of them shall have full power to determine all questions and doubts
arising in relation to any of the provisions of these presents
and/or any other Current Issuer Transaction Document and every such
determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Note Trustee, shall be
conclusive and shall bind the Note Trustee, the Noteholders and the
other Current Issuer Secured Creditors.
(q) In connection with the exercise by it of any of its trusts, powers,
authorities and discretions under these presents (including without
limitation any power to authorise any amendment or to waive any
breach or to make any determination) the Note Trustee shall always
have regard to all the Noteholders, provided that:
(i) without prejudice to the provisions of sub-paragraph (ii) below
where it is required to have regard to the interests of the
Noteholders, it shall have regard to the interests of the
Noteholders as a class and, in particular but without prejudice
to the generality of the foregoing, shall not have regard to,
or be in any way liable for, the consequences of any
24
exercise thereof for any individual Noteholder resulting from
their being domiciled or resident or otherwise connected with
or subject to the jurisdiction of, any particular territory or
any political sub-division thereof and the Note Trustee shall
not be entitled to require, nor shall any Noteholder be
entitled to claim, from the Current Issuer, the Note Trustee or
any other person any indemnification or payment in respect of
any tax consequence of any such exercise upon individual
Noteholders;
(ii) except where expressly provided otherwise in these presents or
any other Current Issuer Transaction Document, the Note Trustee
shall solely have regard to the interests of the Noteholders
provided that (a) if in the opinion of the Note Trustee there
is a conflict between the interests of the Senior Noteholders,
on the one hand and the interests of the Mezzanine Noteholders,
the Class M Noteholders and/or the Junior Noteholders on the
other hand, the Note Trustee shall have regard only to the
interests of the Senior Noteholders or (b) if in the opinion of
the Note Trustee there is a conflict between the interests of
the Mezzanine Noteholders on the one hand and the interests of
the Class M Noteholders and/or the Junior Noteholders on the
other hand, the Note Trustee shall have regard only to the
interests of the Mezzanine Noteholders or (c) if in the opinion
of the Note Trustee there is a conflict between the interests
of the Class M Noteholders on the one hand and the interests of
the Junior Noteholders on the other hand the Note Trustee shall
have regard only to the interests of the Class M Noteholders,
but so that this proviso shall not apply in the case of powers,
authorities or discretions in relation to which it is expressly
stated that they may be exercised by the Note Trustee only if
in its opinion the interests of all the Noteholders would not
be materially prejudiced thereby; and
(iii) it shall not have regard to, or be in any way liable for, the
consequences of any exercise thereof for any other Current
Issuer Secured Creditor or any other person.
(r) The Note Trustee may determine whether or not a default in the
performance by the Current Issuer of any obligation under the
provisions of this Deed or any other Current Issuer Transaction
Document or a default in the performance by Funding of any
obligation under the Current Issuer Intercompany Loan Agreement is
capable of remedy and/or whether the same is materially prejudicial
to the interests of the Noteholders or any class or classes of them
and if the Note Trustee shall certify that any such default is, in
its opinion, not capable of remedy and/or materially prejudicial to
the interests of the Noteholders or any class or classes of them,
such certificate shall be conclusive and binding upon the Current
Issuer, the Noteholders and the other Current Issuer Secured
Creditors.
(s) The Note Trustee may, in the conduct of its trust business, instead
of acting personally, employ and pay an agent on any terms, whether
or not a lawyer or other professional person, to transact or
conduct, or concur in transacting or
25
conducting, any business and to do or concur in doing all acts
required to be done by the Note Trustee (including the receipt and
payment of monies).
(t) In relation to any asset held by the Note Trustee under these
presents, the Note Trustee may appoint any person to act as its
nominee on any terms.
(u) Any trustee of these presents being a lawyer, accountant, broker or
other person engaged in any profession or business shall be entitled
to charge and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in connection
with the trusts of this Deed and the Current Issuer Transaction
Documents and also his charges in addition to disbursements for all
other work and business done and all time spent by him or his firm
in connection with matters arising in connection with this Deed and
the Current Issuer Transaction Documents, including matters which
might or should have been attended to in person by a trustee not
being a banker, lawyer, broker or other professional person.
(v) The Note Trustee may, in the execution of all or any of the trusts,
powers, authorities and discretions vested in it by these presents
or any of the other Current Issuer Transaction Documents, act by
responsible officers or a responsible officer for the time being of
the Note Trustee. The Note Trustee may also, whenever it thinks
expedient in the interests of the Noteholders, whether by power of
attorney or otherwise, delegate to any person or persons all or any
of the trusts, rights, powers, duties, authorities and discretions
vested in it by these presents or any of the other Current Issuer
Transaction Documents. Any such delegation may be made upon such
terms and subject to such Current Issuer Conditions and subject to
such regulations (including power to sub-delegate) as the Note
Trustee may think fit in the interests of the Noteholders. The Note
Trustee shall give prompt notice to the Current 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 Current Issuer.
(w) If the Note Trustee exercises reasonable care in selecting any
custodian, agent, delegate, nominee or any other person appointed
under this Clause 10.3 (Powers and Duties) (each, an "Appointee") it
will not have any obligation to supervise such Appointee or be
responsible for any loss, liability, costs, claim, proceedings or
expenses incurred by reason of such Appointee's misconduct, omission
or default or the misconduct, omission or default of any substitute
lawfully appointed by such Appointee.
(x) Where it is necessary or desirable for any purpose in connection
with these presents to convert any sum from one currency to another
it shall (unless otherwise provided by this Deed or required by law)
be converted at such rate or rates in accordance with such method
and as at such date for the determination of such rate of exchange,
as may be specified by the Note Trustee in its absolute discretion
but having regard to current rates of exchange if available and the
Note Trustee shall not be liable for any loss occasioned by the said
conversion under this paragraph (x) and any rate mentioned and date
so specified shall be binding on the Current Issuer Secured
Creditors.
26
(y) Any consent given by the Note Trustee for the purposes of these
presents or any of the other Current Issuer Transaction Documents
may be given on such terms and subject to such conditions (if any)
as the Note Trustee thinks fit and may be given retrospectively.
(z) The Note Trustee shall not be liable for any error of judgment made
in good faith by any officer or employee of the Note Trustee
assigned by the Note Trustee to administer its corporate trust
matters unless the Note Trustee was negligent in ascertaining the
pertinent facts.
(aa) The Note Trustee shall not (unless required by law or ordered to do
so by a court of competent jurisdiction) be required to disclose to
any Noteholder or any other person any information made available to
the Note Trustee by the Current Issuer or any other person in
connection with the trusts of these presents or any other Current
Issuer Transaction Documents and no Noteholder or any other person
shall be entitled to take any action to obtain from the Note Trustee
any such information. The Note Trustee shall not be responsible for
exercising the rights of any of the parties under the Current Issuer
Transaction Documents or considering the basis upon which the
approvals or consents are granted by any of the parties under the
Current Issuer Transaction Documents.
(bb) Notwithstanding anything else in these presents, the Current Issuer
Notes or any other Current Issuer Transaction Document, the Note
Trustee may refrain from doing anything which would or might in its
opinion be contrary to any law of any jurisdiction or any directive
or regulation of any governmental agency or which would or might
otherwise render it liable to any person and may do anything which
is, in its opinion, necessary to comply with any such law, directive
or regulation.
(cc) The Note Trustee shall not be liable to any person by reason of
having acted upon an Extraordinary Resolution in writing or any
Extraordinary Resolution or other resolution whether in writing or
purporting to have been passed at any Meeting of all or any class or
classes in respect whereof minutes have been made and signed even
though subsequent to its acting it may be found that there was some
defect in the constitution of the Meeting or the passing of the
resolution or (in the case of an Extraordinary Resolution or other
resolution in writing) that not all Noteholders had signed the
Extraordinary Resolution or other resolution or that for any reason
the resolution was not valid or binding upon such Noteholders.
(dd) Without prejudice to the right of the Note Trustee to require and/or
accept any other evidence, the Note Trustee may accept as conclusive
evidence of any fact or matter in relation to the Current Issuer or
required to be certified by the Current Issuer under the Current
Issuer Conditions, a certificate signed by two directors of the
Current Issuer and the Note Trustee shall not be bound in any such
case to call for further evidence or be responsible for any
liability that may be occasioned by it or any other person acting on
such certificate.
27
(ee) The Note Trustee shall not be liable to any person by reason of
having accepted as valid or not having rejected any Note Certificate
purporting to be such and subsequently found to be forged or not
authentic.
(ff) The Note Trustee shall not be liable to the Current Issuer or any
Noteholder by reason of having accepted as valid or not having
rejected any entry on the Register later found to be forged or not
authentic and can assume for all purposes in relation hereto that
any entry on the Register is correct.
(gg) The Note Trustee shall be entitled to assume, for the purposes of
exercising any power, right, trust, authority, duty or discretion
under or in relation to these presents or any of the other Current
Issuer Transaction Documents, (i) that such exercise will not be
materially prejudicial to the interests of any class of Senior
Noteholders if each of the Rating Agencies has confirmed that the
then current rating by it of the Senior Notes would not be adversely
affected by such exercise, (ii) that such exercise will not be
materially prejudicial to the interests of any class of Mezzanine
Noteholders if each of the Rating Agencies has confirmed that the
then current rating by it of the Mezzanine Notes would not be
adversely affected by such exercise, (iii) that such exercise will
not be materially prejudicial to the interests of the Class M
Noteholders if each of the Rating Agencies has confirmed that the
then current rating by it of the Class M Notes would not be
adversely affected by such exercise and (iv) that such exercise will
not be materially prejudicial to the interests of any class of
Junior Noteholders if each of the Rating Agencies has confirmed that
the then current rating by it of the Junior Notes will not be
adversely affected by such exercise.
(hh) The Note Trustee may call for any certificate or other document to
be issued by DTC, Euroclear or Clearstream, Luxembourg as to the
Principal Amount Outstanding of the Current Issuer Notes standing to
the account of any person. Any such certificate or other document
shall be conclusive and binding for all purposes. The Note Trustee
shall not be liable to any person by reason of having accepted as
valid or not having rejected any certificate or other document to
such effect purporting to be issued by DTC, Euroclear or
Clearstream, Luxembourg and subsequently found to be forged or not
authentic.
(ii) The Note Trustee shall have no responsibility for the maintenance of
any rating of any of the Current Issuer Notes by the Rating Agencies
or any other person.
(jj) If required by Section 313(a) of the Trust Indenture Act, within 60
days after 31st December of any year and commencing 31 December
2004, the Note Trustee shall deliver to each Noteholder a brief
report dated as of such 31st December that complies with Section
313(a) of the Trust Indenture Act. The Note Trustee also shall
comply with Sections 313(b), 313(c) and 313(d) of the Trust
Indenture Act. Reports delivered pursuant to this paragraph (jj)
shall be sent as provided in Clause 19 (Notices).
(kk) The Note Trustee shall comply with Trust Indenture Act Section
311(a), excluding any creditor relationship listed in Trust
Indenture Act Section 311(b). A Note Trustee who has resigned or
been removed shall be subject to
28
Trust Indenture Act Section 311(a) to the extent indicated therein.
The provisions of Trust Indenture Act Section 311 shall apply to the
Current Issuer as the obligor of the Current Issuer Notes.
(ll) If a Note Event of Default occurs and is continuing and if it is
known to an Authorised Officer of the Note Trustee, the Note Trustee
shall mail to each Noteholder notice of such Note Event of Default
within 90 days after it occurs.
(mm) The Note Trustee has no responsibility to verify or monitor the
contents of, or (if applicable) to check any calculations contained
in, any reports, information, documents, Officers' Certificates and
Opinions of Counsel delivered to the Note Trustee in accordance with
paragraphs (u) (United States Reporting Requirements), (ee)
(Information Regarding Noteholders) or (ff) (Officers' Certificates
and Opinions of Counsel; Statements to be Contained Therein) of
Clause 5 (Covenants by Current Issuer) or Clause 16 (Certificates
and Opinions), and is under no obligation to inform Noteholders of
the contents of any such reports, information, documents, Officers'
Certificates and Opinions of Counsel, other than allowing
Noteholders upon reasonable notice, to inspect such reports,
information, documents, Officers' Certificates and Opinions of
Counsel.
(nn) The powers conferred by these presents upon the Note Trustee or any
Receiver shall be in addition to and not in substitution for any
powers which may from time to time be conferred on the Note Trustee
or any such Receiver by statute or under common law.
(oo) The Note Trustee has no duties or responsibilities except those
expressly set out in this Deed or in the other Current Issuer
Transaction Documents.
(pp) In the absence of knowledge or express notice to the contrary, the
Note Trustee may assume without enquiry (other than requesting a
certificate of the Current Issuer) that no Current Issuer Notes are
for the time being held by or for the benefit of the Current Issuer.
(qq) The Note Trustee may, without the consent of the Current Issuer or
the Noteholders prescribe such regulations regarding the giving of
directions by the Noteholders as provided in the Current Issuer
Conditions, as the Note Trustee may in its sole discretion
determine.
(rr) Without prejudice to the provisions of any Current Issuer
Transaction Documents relating to insurance, the Note Trustee shall
not be under any obligation to insure any of the Current Issuer
Charged Property or the Funding Charged Property or any deeds or
documents of title or other evidence in respect of the Current
Issuer Charged Property or the Funding Charged Property or to
require any other person to maintain any such insurance or monitor
the adequacy of any such insurance and shall not be responsible for
any liability which may be suffered by any person as a result of the
lack of or inadequacy of any such insurance.
(ss) The Note Trustee shall have no liability whatsoever for any loss,
cost, damages or expenses directly or indirectly suffered or
incurred by a person as
29
a result of the delivery by the Note Trustee to the Current Issuer
or to any other party to the Current Issuer Transaction Documents of
a certificate as to material prejudice pursuant to the Current
Issuer Conditions or any Current Issuer Transaction Documents on the
basis of an opinion formed by it in good faith.
(tt) For the purpose of either Condition 5(D) (Optional Redemption in
Full) or Condition 5(E) (Optional Redemption for Tax and other
Reasons), the Note Trustee shall not be satisfied that the Current
Issuer will be in a position to fulfil its obligations referred to
therein unless, inter alia, either (i) the Current Issuer has
available to it sufficient cash in the Current Issuer Transaction
Account and/or in Authorised Investments which will mature on or
before the relevant Payment Date or (ii) the Current Issuer has
entered into a legally binding contract with an entity (a) the long
term unsecured debt of which is rated at least as high as the then
current rating of the Current Issuer Notes by the Rating Agencies or
(b) any of whose short term unsecured debt is rated A-1 by S&P and
P-1 by Moody's to provide sufficient cash on or before the relevant
Payment Date, in each case to enable the Current Issuer to fulfil
its obligations as aforesaid.
10.4 No Financial Liability: Notwithstanding any other provision of these
presents or of any other Current Issuer Transaction Document, nothing
shall require the Note Trustee to risk its own funds or otherwise incur
any financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers or otherwise in connection
with these presents or any other Current Issuer Transaction Document
(including, without limitation, forming any opinion or employing any
legal, financial or other adviser), if it shall believe that repayment
of such funds or adequate indemnity against such risk or liability is
not assured to it. The Note Trustee shall not be responsible for
exercising the rights of any of the parties under the Current Issuer
Transaction Documents or considering the basis upon which the approvals
or consents are granted by any of the parties under the Current Issuer
Transaction Documents.
10.5 Ascertaining Default: The Note Trustee shall not be responsible or
liable for:
(a) exercising any rights or powers which are assigned to it by any
party to the Current Issuer Transaction Documents, including,
without limitation, any servicing, administration and management
functions in relation to the Mortgage Loans and shall not be liable
to any person for the exercise or non-exercise of any such rights
and powers;
(b) ascertaining whether a default has occurred under the terms of any
of the Current Issuer Transaction Documents and nor is the Note
Trustee responsible for taking any action in connection with any
such default or alleged default;
10.6 Rating of Current Issuer Notes: The Note Trustee shall have no
responsibility for the maintenance of any rating of the Current Issuer
Notes by the Rating Agencies or any other credit-rating agency or any
other person.
10.7 Delivery of Certificates: The Note Trustee shall have no liability
whatsoever for any loss, cost damages or expenses directly or
indirectly suffered or incurred by the
30
Current Issuer, any Noteholder or any other person as a result of the
delivery by the Note Trustee of a certificate, or the omission by it to
deliver a certificate, to the Current Issuer as to material prejudice,
or the basis of an opinion formed by it in good faith.
10.8 Assumption of No Default: Except to the extent required pursuant to
Section 315(b) of the Trust Indenture Act, the Note Trustee shall not
be bound to ascertain whether any Current Issuer Note Event of Default
or Potential Current Issuer Event of Default has happened and, until it
shall have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Current Issuer Note
Event of Default or Potential Current Issuer Event of Default has
happened and that the Current Issuer is observing and performing all
the obligations on its part under the Current Issuer Notes and these
presents and no event has happened as a consequence of which any
Current Issuer Notes may become repayable.
10.9 Assumption of no Intercompany Loan Default: The Note Trustee shall not
be bound to ascertain whether any Intercompany Loan Event of Default or
Potential Intercompany Loan Event of Default has happened and, until it
shall have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Intercompany Loan
Event of Default or Potential Intercompany Loan Event of Default has
happened and that Funding is observing and performing all the
obligations on its part;
10.10 Commercial Transactions: The Note Trustee shall not, and no director,
officer or employee of any corporation being a Note Trustee hereof
shall by reason of the fiduciary position of the Note Trustee be in any
way precluded from making any commercial contracts or entering into any
commercial transactions with any party to the Current Issuer
Transaction Documents, whether directly or through any subsidiary or
associated company, or from accepting the trusteeship of any other
debenture stock, debentures or securities of any party to the Current
Issuer Transaction Documents, and without prejudice to the generality
of these provisions, it is expressly declared that such contracts and
transactions include any contract or transaction in relation to the
placing, underwriting, purchasing, subscribing for or dealing with or
lending monies upon or making payments in respect of or any stock,
shares, debenture stock, debentures or other securities of any party to
the Current Issuer Transaction Documents or any contract of banking or
insurance of any party to the Current Issuer Transaction Documents and
neither the Note Trustee nor any such director, officer or employee
shall be accountable to any Noteholder or to any party to the Current
Issuer Transaction Documents for any profit, fees, commissions,
interest, discounts or share of brokerage earned, arising or resulting
from any such contracts or transactions, and the Note Trustee and any
such director, officer or employee shall also be at liberty to retain
the same without accounting therefor.
10.11 Disapplication: Section 1 of the Trustee Act 2000 shall not apply to
the duties of the Note Trustee in relation to the trusts constituted by
this Deed. Where there are any inconsistencies between the Trustee Acts
and the provisions of this Deed, the provisions of this Deed shall, to
the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Act 2000, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that
Act.
10.12 Note Trustee Liable for Negligence etc.: Notwithstanding any other
provision of
31
these presents, in compliance with Section 315(d) of the Trust
Indenture Act, none of the provisions of these presents shall, in any
case in which the Note Trustee has failed to show the degree of care
and diligence required of it as trustee under these presents (including
any requirement under the Trust Indenture Act), having regard to the
provisions of these presents conferring on the Note Trustee any powers,
authorities or discretions, relieve the Note Trustee from or indemnify
the Note Trustee against any liabilities which by virtue of any rule of
law (including any provision of the Trust Indenture Act) would
otherwise attach to it in respect of any negligence, default, breach of
duty or breach of trust of which it may be guilty in relation to its
duties under these presents.
11. Modification and Waiver
11.1 Modification: The Note Trustee may without the consent or sanction of
relevant class or classes of the Noteholders at any time and from time
to time concur with the Current Issuer in making any modification
(except a Basic Terms Modification (as defined in Schedule 4
(Provisions for Meetings of Noteholders) hereto)) (i) to these
presents, the Current Issuer Notes or any of the other Current Issuer
Transaction Documents, provided that the Note Trustee is of the opinion
that such modification will not be materially prejudicial to the
interests of the relevant class or classes of Noteholders; or (ii) to
these presents, the Current Issuer Notes or any of the other Current
Issuer Transaction Documents, if in the opinion of the Note Trustee
such modification is of a formal, minor or technical nature or to
correct a manifest error or proven error; or (iii) to any of the
Current Issuer Transaction Documents which it may be necessary to make
or which are required by the Rating Agencies in respect of any New
Issuer or any other person who has executed an Accession Undertaking
pursuant to Clause 3.11 (New Intercompany Loans) of the Funding Deed of
Charge or Clause 2.2 (New Intercompany Loan Agreement) of the
Intercompany Loan Terms and Conditions. Any such modification may be
made on such terms and subject to such conditions (if any) as the Note
Trustee may determine, shall be binding upon the Noteholders and,
unless the Note Trustee agrees otherwise, shall be notified by the
Current Issuer to the Noteholders and the Rating Agencies in accordance
with the Current Issuer Conditions as soon as practicable thereafter.
So long as any of the Current Issuer Notes are rated by the Rating
Agencies, the Current Issuer shall notify the Rating Agencies in
writing as soon as reasonably practicable thereafter of any
modification to the provisions of these presents, the Current Issuer
Notes or any of the other Current Issuer Transaction Documents. The
Note Trustee may also agree, without the consent of the Noteholders, to
a change of the laws governing the Current Issuer Notes and/or the
Current Issuer Transaction Documents provided that such change would
not, in the opinion of the Note Trustee, be materially prejudicial to
the interests of the Noteholders.
11.2 Waiver: Subject as expressly provided otherwise in the Current Issuer
Notes or in any other Current Issuer Transaction Document, the Note
Trustee may from time to time and at any time without the consent or
sanction of the relevant class or classes of Noteholders and without
prejudice to its rights in respect of any subsequent breach, but only
if and in so far as in its opinion the interests of the relevant class
or classes of Noteholders shall not be materially prejudiced thereby,
waive or authorise any breach or proposed breach by the Current Issuer
or any other party thereto of any of the covenants or provisions
contained in these presents or in any of the other Current
32
Issuer Transaction Documents or determine that any Note Event of
Default shall not be treated as such for the purposes of these presents
and the Current Issuer Notes provided always that the Note Trustee
shall not exercise any powers conferred on it by this Clause in
contravention of any express direction given by an Extraordinary
Resolution, or of a request in writing made by the holders of not less
than 25 per cent. in aggregate principal amount of the relevant class
of Current Issuer Notes then outstanding, in accordance with the
Current Issuer Conditions (but so that no such direction or request
shall affect any waiver, authorisation or determination previously
given or made). Any such waiver, authorisation or determination may be
given or made on such terms and subject to such conditions (if any) as
the Note Trustee may determine, shall be binding on the Noteholders
and, if, but only if, the Note Trustee shall so require, shall be
notified by the Current Issuer to the Noteholders in accordance with
the Current Issuer Conditions as soon as practicable thereafter. The
provisions of this Clause 11.2 (Waivers) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from these presents
and the Current Issuer Notes, as permitted by the Trust Indenture Act.
11.3 Material prejudice: For the avoidance of doubt (in the context of
deciding material prejudice in respect of Clauses 11.1 (Modifications)
and 11.2 (Waiver)), if the Note Trustee considers in its sole opinion
that the Noteholders of the same class of any or all series to which
the modification or waiver relates are materially prejudiced by such
waivers, the Note Trustee will not be able to sanction such
modification or waiver itself, and will instead require an
Extraordinary Resolution of the Noteholders of the Current Issuer Notes
of such class outstanding to be passed by means of a Meeting. In
accordance with the general provision contained herein, such
Extraordinary Resolution must also be ratified by the Noteholders of
the Current Issuer Notes of the higher class or classes in order for
the Extraordinary Resolution which seeks approval of the modification
or waiver to be valid and effective.
12. Entitlement to Treat holder as owner
The Current Issuer, the Note Trustee and any Paying Agent may (to the
fullest extent permitted by applicable laws) deem and treat the holder
of any Note Certificate as the absolute owner of such Note Certificate,
for all purposes (whether or not such Current Issuer Note represented
by such Note Certificate shall be overdue and notwithstanding any
notation of ownership or other writing thereon or any notice of loss or
theft of such Note Certificate), and, except as ordered by a court of
competent jurisdiction or as required by applicable law, the Current
Issuer, the Note Trustee and the Paying Agents shall not be affected by
any notice to the contrary. All payments made to any such holder shall
be valid and, to the extent of the sums so paid, effective to satisfy
and discharge the liability for the monies payable in respect of such
Current Issuer Note.
13. Currency Indemnity
13.1 Currency and Indemnity: The sole currency of account and payment (the
"Contractual Currency") for all sums payable by the Current Issuer
under or in connection with these presents, the Current Issuer Notes
and the other Current Issuer Secured Obligations including damages is
(a) in relation to any class of Current Issuer Notes, the currency in
which such class of Current Issuer Notes is denominated and
33
(b) in relation to Clauses 9.1 (Normal Remuneration), 9.2 (Extra
Remuneration), 9.3 (Failure to Agree), 9.4 (Expenses), 9.5 (Indemnity),
9.7 (VAT) and 9.8 (Interest), pounds sterling. An amount received or
recovered in a currency other than the Contractual Currency (whether as
a result of, or of the enforcement of, a judgment or order of a court
of any jurisdiction, in the winding-up or dissolution of the Current
Issuer or otherwise), by the Note Trustee or any Noteholder or other
Current Issuer Secured Creditors in respect of any sum expressed to be
due to it from the Current Issuer will only discharge the Current
Issuer to the extent of the Contractual Currency amount which the
recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if
it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do so). If the Contractual Currency
amount is less than the Contractual Currency amount expressed to be due
to the recipient under these presents or the Current Issuer Notes, or
the other Current Issuer Transaction Documents the Current Issuer will
indemnify the recipient against any loss sustained by it as a result.
In any event, the Current Issuer will indemnify the recipient against
the cost of making any such purchase.
13.2 Indemnities Separate: The indemnities in these presents constitute
separate and independent obligations from the other obligations in
these presents and the other Current Issuer Transaction Documents, will
give rise to separate and independent causes of action, will apply
irrespective of any indulgence granted by the Note Trustee and/or any
Noteholder or other Current Issuer Secured Creditor and will continue
in full force and effect despite any judgment, order, claim or proof
for a liquidated amount in respect of any sum due under these presents,
the Current Issuer Notes, any other Current Issuer Transaction
Documents or any other judgment or order. Any such loss as referred to
in Clause 13.1 (Currency and Indemnity) shall be deemed to constitute a
loss suffered by the Note Trustee, the Noteholders or the relevant
Current Issuer Secured Creditors and no proof or evidence of any actual
loss shall be required by the Current Issuer or its liquidator or
liquidators.
14. Appointment, Removal and Retirement of Note Trustee
14.1 Power of Current Issuer: Subject to the provisions of this Clause 14
(Appointment, Removal and Retirement of Note Trustee), the power of
appointing a new Note Trustee in place of an existing Note Trustee
shall be vested in the Current Issuer but such appointment or removal
must be approved by (save to the extent otherwise provided in the
Current Issuer Conditions) an Extraordinary Resolution of the Senior
Noteholders, the Mezzanine Noteholders, the Class M Noteholders and the
Junior Noteholders of the Notes then outstanding. A trust corporation
may be appointed sole trustee hereof but subject thereto there shall be
at least two trustees hereof, one at least of which shall be a trust
corporation. Any appointment of a new Note Trustee and any retirement
of an existing Note Trustee hereof shall as soon as practicable
thereafter be notified by the Current Issuer to the Noteholders. Any
new Note Trustee must meet the requirements set out in Clause 14.2
(Eligibility and Disqualification) and Clause 14.6 (Retirement or
Removal Not Effective).
14.2 Eligibility and Disqualification: This Deed shall always have a Note
Trustee which shall be eligible to act as Note Trustee under Trust
Indenture Act Sections 310(a)(1) and 310(a)(2). The Note Trustee shall
have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. If the
34
Note Trustee has or shall acquire any "conflicting interest" within the
meaning of Trust Indenture Act Section 310(b), the Note Trustee and the
Current Issuer shall comply with the provisions of Trust Indenture Act
Section 310(b); provided, however, that there shall be excluded from
the operation of Trust Indenture Act Section 310(b)(1) any deed or
deeds under which other securities or certificates of interest or
participation in other securities of the Current Issuer are outstanding
if the requirements for such exclusion set forth in Trust Indenture Act
Section 310(b)(1) are met. If at any time the Note Trustee shall cease
to be eligible in accordance with the provisions of this Clause 14.2
(Eligibility and Disqualification), the Note Trustee shall resign
promptly in the manner and with the effect specified in Clause 14.5
(Retirement or Removal of Note Trustee).
14.3 Powers of Note Trustee to appoint: Notwithstanding the provisions of
Clause 14.1 (Power of Current Issuer), the Note Trustee may (as
attorney for the Current Issuer) upon giving prior notice to the
Current Issuer but without the consent of the Current Issuer or the
Noteholders appoint any person established or resident in any
jurisdiction (whether a trust corporation or not) to act either as a
separate trustee or as a co-trustee jointly with the Note Trustee:
(a) if the Note Trustee considers such appointment to be in the
interests of the Noteholders; or
(b) for the purposes of conforming to any legal requirements,
restrictions or Current Issuer Conditions in any jurisdiction in
which any particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of these presents or any of
the other Current Issuer Transaction Documents against the
Current Issuer or any other party thereto.
The Current Issuer hereby irrevocably appoints the Note Trustee to be
its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of these presents and any other Current Issuer Transaction
Document to which the Note Trustee is a party) have such trusts,
powers, authorities and discretions (not exceeding those conferred on
the Note Trustee by these presents or any of the other Current Issuer
Transaction Documents to which the Note Trustee is a party) and such
duties and obligations as shall be conferred or imposed on it by the
instrument of appointment. The Note Trustee shall have power in like
manner to remove any such person. Such proper remuneration as the Note
Trustee may pay to any such person, together with any attributable
costs, charges and expenses incurred by it in performing its function
as such separate trustee or co-trustee, shall for the purposes of these
presents be treated as costs, charges and expenses incurred by the Note
Trustee.
14.4 Multiple Trustees: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and discretions vested by these
presents and any of the other Current Issuer Transaction Documents in
the Note Trustee generally.
35
14.5 Retirement or Removal of Note Trustee: Subject as provided in Clause
14.6 (Retirement or Removal not Effective), any Note Trustee for the
time being of this Deed may retire at any time upon giving not less
than three months' prior notice in writing to the Current Issuer
without assigning any reason therefor and without being responsible for
any costs resulting from such retirement. The Noteholders may by
Extraordinary Resolution of each class of Noteholders remove any
trustee or trustees for the time being of these presents
14.6 Retirement or Removal not Effective: The retirement or removal of any
Note Trustee shall not become effective unless (i) there remains at
least one trustee hereof being a trust corporation in office upon such
retirement or removal and (ii) while the Bank of New York remains Note
Trustee, the Bank of New York, in its capacity as Security Trustee
shall also retire or be removed simultaneously. The Current Issuer
covenants that, in the event of a trustee (being a sole trustee or the
only trust corporation) giving notice or being removed under Clause
14.5 (Retirement or Removal of Note Trustee) it shall use its best
endeavours to procure a new Note Trustee of these presents (being a
trust corporation) to be appointed as soon as reasonably practicable
thereafter (for the avoidance of doubt, on the same terms as these
presents). If within 30 days of having given notice of its intention to
retire, the Current Issuer has failed to appoint a replacement Note
Trustee, the outgoing Note Trustee will be entitled to appoint its
successor provided that the Rating Agencies confirm that the then
current ratings of the Current Issuer Notes shall not be either
downgraded or reviewed as a result of such appointment.
15. Trust Indenture Act Prevails
If any provision of these presents limits, qualifies or conflicts with
another provision which is required to be included in these presents
by, and is not subject to a contractual waiver under, the Trust
Indenture Act, the required provision of the Trust Indenture Act shall
be deemed to be incorporated into these presents and shall prevail.
16. Certificates and Opinions
16.1 Evidence of Compliance as to Conditions Precedent: Upon any request or
application by the Current Issuer to the Note Trustee to take any
action under this Trust Deed or these presents, the Current Issuer
shall furnish to the Note Trustee in accordance with Section 314(c) of
the Trust Indenture Act:
(a) an Officers' Certificate (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in these presents
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below) stating that, in the opinion of such counsel,
all such conditions precedent, if any, provided for in these
presents relating to the proposed action have been complied
with.
16.2 Statements required in Certificates and Opinions: Each certificate and
opinion with respect to compliance with a condition or covenant
provided for in these presents or these presents, in accordance with
Section 314(e) of the Trust Indenture Act, shall
36
include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions relating
thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
17. Release of Collateral
17.1 Limitation on Release: Except to the extent expressly provided in this
Clause 17 (Release of Collateral), the Note Trustee shall release the
property from the security constituted by the Current Issuer Deed of
Charge only upon receipt of a request from the Current Issuer
accompanied by an Officers' Certificate, an Opinion of Counsel and
certificates of independent parties in accordance with Trust Indenture
Act Sections 314(c) and 314(d)(1) ("Independent Certificates") or an
Opinion of Counsel in lieu of such Independent Certificates to the
effect that the Trust Indenture Act does not require any such
Independent Certificates.
17.2 Fair Value: Prior to the release of any property or securities subject
to the lien of the Current Issuer Deed of Charge, the Current Issuer
shall, in addition to any obligation imposed in this Clause 17 (Release
of Collateral) or elsewhere in these presents, furnish to the Note
Trustee an Officers' Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value to the
Current Issuer of the property or securities to be so released. The
officers so certifying may consult with, and may conclusively rely upon
a certificate as to the fair value of such property provided to such
officers by an internationally recognised financial institution with
expertise in such matters. Whenever the Current Issuer is required to
furnish to the Note Trustee an Officers' Certificate certifying or
stating the opinion of any signer thereof as to the matters described
in this Clause 17.2 (Fair Value), the Current Issuer shall also deliver
to the Note Trustee an Independent Certificate as to the same matters,
if the fair value to the Current Issuer of the property to be so
released and of all other such property made the basis of any such
release since the commencement of the then current fiscal year of the
Current Issuer, as set forth in the certificates delivered pursuant to
this Clause 17 (Release of Collateral), is 10% or more of the Principal
Amount Outstanding of the Current Issuer Notes, but such a certificate
need not be furnished with respect to any property so released if the
fair value thereof to the Current Issuer as set forth in the related
Officers' Certificate is less than $25,000 (or its equivalent) or less
than one per cent. of the Principal Amount Outstanding of the Current
Issuer Notes.
17.3 No Impairment: Whenever any property is to be released from the
security
37
constituted by the Current Issuer Deed of Charge, the Current Issuer
shall also furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each person signing such
certificate that in the opinion of such person the proposed release
will not impair the security under the Current Issuer Deed of Charge in
contravention of the provisions hereof.
17.4 Payments under Current Issuer Transaction Documents: Notwithstanding
anything to the contrary contained herein, the Current Issuer may (a)
make cash payments out of the Current Issuer Bank Accounts relating to
the Current Issuer Notes as and to the extent permitted or required by
the Current Issuer Transaction Documents (b) act in relation to the
Current Issuer Charged Property as permitted under the Current Issuer
Deed of Charge and (c) take any other action not inconsistent with the
Trust Indenture Act.
18. Rights Cumulative
The respective rights of the Note Trustee and the Noteholders to these
presents are cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Note Trustee or any
Noteholder to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies in these
presents are cumulative and not exclusive of any remedies provided by
law.
19. Notices
19.1 Any notices or other communication or document to be given or delivered
pursuant to these presents to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on
the day of delivery if delivered before 17.00 hours on a London
Business Day or on the next London Business Day if delivered thereafter
or (in the case of first class post) when it would be received in the
ordinary course of the post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 04-3 plc
c/o Fifth Floor, 100 Wood Street, London EC2V 7EX (facsimile
number 020 7606 0643) for the attention of The Company Secretary
with a copy to Northern Rock plc, Northern Rock House, Gosforth,
Newcastle upon Tyne NE3 4PL (facsimile number 0191 213 2203) for
the attention of the Group Secretary;
(b) in the case of the Note Trustee, to The Bank of New York, 48th
Floor, One Canada Square, London E14 5AL (facsimile number 020
7964 6061/6399) for the attention of (Corporate Trust) Global
Structured Finance;
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by fifteen days prior written notice in accordance
with the provisions of this Clause 19 (Notices).
38
19.2 Communications by Noteholders with other Noteholders: Noteholders may
communicate pursuant to Trust Indenture Act Section 312(b) with other
Noteholders with respect to their rights under these presents or the
Current Issuer Notes. The Current Issuer and the Note Trustee shall
have the protection of Trust Indenture Act Section 312(c).
19.3 Notices to Noteholders: Any notice or communication mailed to
Noteholders hereunder shall be transmitted by mail to (a) all
Noteholders as the names and addresses of such Noteholders appear upon
the Register and (b) such Noteholders to whom Trust Indenture Act
Section 313(c) requires reports to be transmitted.
20. Third Party Rights
A person who is not a party to these presents may not enforce any of
its terms under the Contracts (Rights of Third Parties) Act 1999, but
this shall not affect any right or remedy of a third party which exists
or is available apart from that Act.
21. Execution in Counterparts; Severability
21.1 Counterparts: This Trust Deed may be executed in any number of
counterparts (manually or by facsimile) and by different parties hereto
in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall
constitute one and the same instrument.
21.2 Severability: Where any provision in or obligation under these presents
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under these presents, or of such provision or obligation in
any other jurisdiction, shall not be affected or impaired thereby.
22. Governing Law and Jurisdiction; Appropriate Forum
22.1 Governing Law: These presents and the Current Issuer Notes are governed
by, and shall be construed in accordance with, English law.
22.2 Jurisdiction: Each of the parties hereto agrees for the benefit of the
Note Trustee and the Noteholders that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
these presents and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
22.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and
to settle any disputes, and agrees not to claim that any such court is
not a convenient or appropriate forum.
IN WITNESS of which these presents has been executed by the parties hereto as
a deed which has been delivered on the date first appearing on page one.
39
SCHEDULE 1
FORMS OF GLOBAL NOTE CERTIFICATES
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales
with registered number 5168395)
SERIES 1 CLASS [o] GLOBAL NOTE CERTIFICATE
representing
US$[o] Series 1 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 1 Class [o] Global Note Certificate is issued in respect of
the US$[o] Series 1 Class [o] Floating Rate Notes due [o] (the "Notes")
of Granite Mortgages 04-3 plc (the "Current Issuer"), and is limited to
the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] US Dollars
(US$[o])
40
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] US Dollars (US$[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the custodian for DTC of this Global Note Certificate) in arrear on
each Payment Date at the rates determined in accordance with the
Current Issuer Conditions together with such premium and other amounts
(if any) as may be payable, all subject to and in accordance with the
Current Issuer Conditions and the provisions of the Current Issuer
Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) The Depository Trust
Company ("DTC") has notified the Current Issuer that it is at any time
unwilling or unable to continue as, or ceases to be, a clearing agency
under the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and a successor to DTC registered as a clearing
agency under the Exchange Act is not appointed by the Current Issuer
within 90 days of such notification, or (ii) as a result of any
amendment to, or change in, the laws or regulations of the United
Kingdom (or of any political subdivision thereof), or of any authority
therein or thereof having power to tax, or in the interpretation or
administration by a revenue authority or a court or administration of
such laws or regulations which becomes effective on or after the
Closing Date, the Current Issuer or any Paying Agent is or will be
required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant
Notes Individual Note Certificates. Such exchange shall be effected in
accordance with paragraph 6 (Delivery of Individual Note Certificates)
below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder and/or DTC, to the Registrar of such
information as is required to complete and deliver such Individual Note
Certificates (including, without limitation, the names and addresses of
the persons in whose names the Individual Note Certificates are to be
registered and the principal amount of each such person's holding)
against the surrender of this Global Note Certificate at the Specified
Office (as defined in the Current Issuer Conditions) of the Registrar.
Such exchange shall be effected in accordance with the provisions of
the Current Issuer Paying Agent and Agent Bank Agreement and the
regulations concerning the transfer and registration of Notes scheduled
thereto and, in particular,
41
shall be effected without charge to any Holder or the Note Trustee, but
against such indemnity as the Registrar may require in respect of any
tax or other duty of whatsoever nature which may be levied or imposed
in connection with such exchange. In this paragraph, "business day"
means a day on which commercial banks are open for business in the city
in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each Holder of a Note, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.
10. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of DTC or any other clearing
system (an "Alternative Clearing System") notices to Holders of Notes
represented by this Global Note Certificate may be given by delivery of
the relevant notice to DTC or (as the case may be) such Alternative
Clearing System.
11. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
12. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
13. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
42
14. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
15. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
43
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
44
FORM OF TRANSFER
FOR VALUE RECEIVED ....................................., being the registered
holder of this Global Note Certificate, hereby transfers to....................
of.............................................................................
................................................................................
US$ ............................... in principal amount of the US$[amount]
Series 1 Class [o] Floating Rate Notes due [maturity] (the "Notes") of Granite
Mortgages 04-3 plc (the "Current Issuer") and irrevocably requests and
authorises Citibank, N.A., in its capacity as Registrar in relation to the
Notes (or any successor to Citibank, N.A., in its capacity as such) to effect
the relevant transfer by means of appropriate entries in the Register kept by
it.
Dated: ..............................
By: ..................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$100,000 or an
integral multiple of U.S.$1,000 in excess thereof.
45
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
46
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
47
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales
with registered number 5168395)
SERIES 1 CLASS A2 GLOBAL NOTE CERTIFICATE
representing
(Euro)[o] Series 1 Class A2 Floating Rate Notes due [o]
1. Introduction
This Series 1 Class A2 Global Note Certificate is issued in respect of
the (Euro)[o] Series 1 Class A2 Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"), and is
limited to the aggregate principal amount of
[o] Euro
((Euro)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] Euro
((Euro)[o])
in aggregate principal amount of the Notes.
48
4. Promise to pay
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] Euro ((Euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently cease business and do so cease to do
business and no alternative clearing system satisfactory to the Note
Trustee is available or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
subdivision thereof), or of any authority therein or thereof having
power to tax, or in the interpretation or administration by a revenue
authority or a court or administration of such laws or regulations
which becomes effective on or after the Closing Date, the Current
Issuer or any Paying Agent is or will be required to make any deduction
or withholding from any payment in respect of the Notes which would not
be required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg,
to the Registrar of such information as is required to complete and
deliver such Individual Note Certificates (including, without
limitation, the names and addresses of the persons in whose names the
Individual Note Certificates are to be registered and the principal
amount of each such person's holding) against the surrender of this
Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
49
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on which commercial banks are open for
business in the city in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "Alternative Clearing
System"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear and Clearstream, Luxembourg or (as the case may be) such
Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
50
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
51
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
52
FORM OF TRANSFER
FOR VALUE RECEIVED ........................, being the registered holder of
this Global Note Certificate, hereby transfers to .............................
................................................................................
of ............................................................................
................................................................................
........................, (Euro) ................................ in principal
amount of the (Euro)[amount] Series 1 Class A2 Floating Rate Notes due
[maturity] (the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer")
and irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (Euro)50,000 or an
integral multiple of (Euro)1,000 in excess thereof.
53
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
54
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 2 CLASS A1 GLOBAL NOTE CERTIFICATE
representing
US$[o] Series 2 Class A1 Floating Rate Notes due [o]
1. Introduction
This Series 2 Class A1 Global Note Certificate is issued in respect of
the US$[o] Series 2 Class A1 Floating Rate Notes due [o] (the "Notes")
of Granite Mortgages 04-3 plc (the "Current Issuer"), and is limited to
the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] US Dollars
(US$[o])
in aggregate principal amount of the Notes.
55
4. Promise to pay
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] US Dollars (US$[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the custodian for DTC of this Global Note Certificate) in arrear on
each Payment Date at the rates determined in accordance with the
Current Issuer Conditions together with such premium and other amounts
(if any) as may be payable, all subject to and in accordance with the
Current Issuer Conditions and the provisions of the Current Issuer
Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) The Depository Trust
Company ("DTC") has notified the Current Issuer that it is at any time
unwilling or unable to continue as, or ceases to be, a clearing agency
under the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and a successor to DTC registered as a clearing
agency under the Exchange Act is not appointed by the Current Issuer
within 90 days of such notification, or (ii) as a result of any
amendment to, or change in, the laws or regulations of the United
Kingdom (or of any political subdivision thereof), or of any authority
therein or thereof having power to tax, or in the interpretation or
administration by a revenue authority or a court or administration of
such laws or regulations which becomes effective on or after the
Closing Date, the Current Issuer or any Paying Agent is or will be
required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant
Notes Individual Note Certificates. Such exchange shall be effected in
accordance with paragraph 6 (Delivery of Individual Note Certificates)
below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder and/or DTC, to the Registrar of such
information as is required to complete and deliver such Individual Note
Certificates (including, without limitation, the names and addresses of
the persons in whose names the Individual Note Certificates are to be
registered and the principal amount of each such person's holding)
against the surrender of this Global Note Certificate at the Specified
Office (as defined in the Current Issuer Conditions) of the Registrar.
Such exchange shall be effected in accordance with the provisions of
the Current Issuer Paying Agent and Agent Bank Agreement and the
regulations concerning the transfer and registration of Notes scheduled
thereto and, in particular, shall be effected without charge to any
Holder or the Note Trustee, but against such indemnity as the Registrar
may require in respect of any tax or other duty of
56
whatsoever nature which may be levied or imposed in connection with
such exchange. In this paragraph, "business day" means a day on which
commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each Holder of a Note, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.
10. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of DTC or any other clearing
system (an "Alternative Clearing System") notices to Holders of Notes
represented by this Global Note Certificate may be given by delivery of
the relevant notice to DTC or (as the case may be) such Alternative
Clearing System.
11. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
12. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
13. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
57
14. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
15. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
58
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
59
FORM OF TRANSFER
FOR VALUE RECEIVED .................., being the registered holder of this
Global Note Certificate, hereby transfers to...................................
of.............................................................................
................................................................................
US$ ..................................... in principal amount of the
US$[amount] Series 2 Class A1 Floating Rate Notes due [maturity] (the "Notes")
of Granite Mortgages 04-3 plc (the "Current Issuer") and irrevocably requests
and authorises Citibank, N.A., in its capacity as Registrar in relation to the
Notes (or any successor to Citibank, N.A., in its capacity as such) to effect
the relevant transfer by means of appropriate entries in the Register kept by
it.
Dated: .............................................
By: ................................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$100,000 or an
integral multiple of U.S.$1,000 in excess thereof.
60
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
61
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
62
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 2 CLASS [o] GLOBAL NOTE CERTIFICATE
representing
(Euro)[o] Series 2 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 2 Class [o] Global Note Certificate is issued in respect of
the (Euro)[o] Series 2 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"), and is
limited to the aggregate principal amount of
[o] Euro
((Euro)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] Euro
((Euro)[o])
in aggregate principal amount of the Notes.
4. Promise to pay
63
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] Euro ((Euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently cease business and do so cease to do
business and no alternative clearing system satisfactory to the Note
Trustee is available or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
subdivision thereof), or of any authority therein or thereof having
power to tax, or in the interpretation or administration by a revenue
authority or a court or administration of such laws or regulations
which becomes effective on or after the Closing Date, the Current
Issuer or any Paying Agent is or will be required to make any deduction
or withholding from any payment in respect of the Notes which would not
be required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg,
to the Registrar of such information as is required to complete and
deliver such Individual Note Certificates (including, without
limitation, the names and addresses of the persons in whose names the
Individual Note Certificates are to be registered and the principal
amount of each such person's holding) against the surrender of this
Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on
64
which commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "Alternative Clearing
System"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear and Clearstream, Luxembourg or (as the case may be) such
Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
14. Governing law
65
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note
Certificate to be signed manually or in facsimile by a person duly
authorised on its behalf.
GRANITE MORTGAGES 04-3 PLC
By:
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
66
FORM OF TRANSFER
FOR VALUE RECEIVED ............................, being the registered holder of
this Global Note Certificate, hereby transfers to
of
.................., (Euro) .............................. in principal amount of
the (Euro)[amount] Series 2 Class [o] Floating Rate Notes due [maturity] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in
relation to the Notes (or any successor to Citibank, N.A., in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
Register kept by it.
Dated:
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (Euro)50,000 or an
integral multiple of (Euro)1,000 in excess thereof.
67
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
68
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
69
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 3 CLASS [o] GLOBAL NOTE CERTIFICATE
representing
(GBP)[o] Series 3 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 3 Class [o] Global Note Certificate is issued in respect of
the (GBP)[o] Series 3 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"), and is
limited to the aggregate principal amount of
[o] Pounds Sterling
((GBP)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] Pounds Sterling
((GBP)[o])
in aggregate principal amount of the Notes.
70
4. Promise to pay
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] Pounds Sterling ((GBP)[o]))
on the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently cease business and do so cease to do
business and no alternative clearing system satisfactory to the Note
Trustee is available or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
subdivision thereof), or of any authority therein or thereof having
power to tax, or in the interpretation or administration by a revenue
authority or a court or administration of such laws or regulations
which becomes effective on or after the Closing Date, the Current
Issuer or any Paying Agent is or will be required to make any deduction
or withholding from any payment in respect of the Notes which would not
be required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg,
to the Registrar of such information as is required to complete and
deliver such Individual Note Certificates (including, without
limitation, the names and addresses of the persons in whose names the
Individual Note Certificates are to be registered and the principal
amount of each such person's holding) against the surrender of this
Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
71
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on which commercial banks are open for
business in the city in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "Alternative Clearing
System"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear and Clearstream, Luxembourg or (as the case may be) such
Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
72
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
73
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
74
FORM OF TRANSFER
FOR VALUE RECEIVED ........................, being the registered holder of
this Global Note Certificate, hereby transfers to .............................
................................................................................
of.............................................................................
................................................................................
................................................................................
.................., (GBP) ..................................... in principal
amount of the (GBP)[amount] Series 3 Class [o] Floating Rate Notes due
[maturity] (the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer")
and irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (GBP)50,000 or an
integral multiple of (GBP)1,000 in excess thereof.
75
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
76
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
77
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 3 CLASS A2 GLOBAL NOTE CERTIFICATE
representing
(GBP) [o] Series 3 Class A2 Fixed Rate Notes due [o]
1. Introduction
This Series 3 Class A2 Global Note Certificate is issued in respect of
the (GBP) [o] Series 3 Class A2 Fixed Rate Notes due [o] (the "Notes")
of Granite Mortgages 04-3 plc (the "Current Issuer"), and is limited to
the aggregate principal amount of
[o] Pounds Sterling
((GBP)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] Pounds Sterling
((GBP)[o])
in aggregate principal amount of the Notes.
78
4. Promise to pay
Subject only as provided in this Global Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Global Note
Certificate (being at the date hereof [o] Pounds Sterling ((GBP)[o]))
on the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently cease business and do so cease to do
business and no alternative clearing system satisfactory to the Note
Trustee is available or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
subdivision thereof), or of any authority therein or thereof having
power to tax, or in the interpretation or administration by a revenue
authority or a court or administration of such laws or regulations
which becomes effective on or after the Closing Date, the Current
Issuer or any Paying Agent is or will be required to make any deduction
or withholding from any payment in respect of the Notes which would not
be required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by
or on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg,
to the Registrar of such information as is required to complete and
deliver such Individual Note Certificates (including, without
limitation, the names and addresses of the persons in whose names the
Individual Note Certificates are to be registered and the principal
amount of each such person's holding) against the surrender of this
Global Note Certificate at the Specified Office (as defined in the
Current Issuer Conditions) of the Registrar. Such exchange shall be
effected in accordance with the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement and the regulations concerning the
transfer and registration of Notes scheduled thereto and, in
particular, shall be effected without charge to any Holder or the Note
Trustee, but against such indemnity as the Registrar may require in
79
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on which commercial banks are open for
business in the city in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Global Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Global Note Certificate
shall be valid and, to the extent of the sums so paid, effectual to
satisfy and discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "Alternative Clearing
System"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear and Clearstream, Luxembourg or (as the case may be) such
Alternative Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
80
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
81
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.......................................................
[manual signature]
(duly authorised)
FORM OF TRANSFER
FOR VALUE RECEIVED ....................., being the registered holder of
this Global Note Certificate, hereby transfers to .............................
................................................................................
of ............................................................................
................................................................................
................................................................................
...................................., (GBP).................... in principal
amount of the (GBP)[amount] Series 3 Class A2 Fixed Rate Notes due [maturity]
(the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer") and
irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (GBP)50,000 or an
integral multiple of (GBP)1,000 in excess thereof.
82
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
84
SCHEDULE 2
FORMS OF INDIVIDUAL NOTE CERTIFICATES
- -------------------------------------------------------------------------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
- -------------------------------------------------------------------------------
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 1 CLASS [o] INDIVIDUAL NOTE CERTIFICATE
representing
US$[o] Series 1 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 1 Class [o] Individual Note Certificate is issued in
respect of the US$[o] Series 1 Class [o] Floating Rate Notes due [o]
(the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"),
limited to the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
85
US$[o]
US Dollars [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] US Dollars (US$[o])) on
the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such
premium and other amounts (if any) as may be payable, all subject to
and in accordance with the Current Issuer Conditions and the provisions
of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
86
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each holder of a Note, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
12. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
87
FORM OF TRANSFER
FOR VALUE RECEIVED ........................., being the registered holder of
this Individual Note Certificate, hereby transfers to .........................
................................................................................
of ............................................................................
................................................................................
.............................., US$ ........................................ in
principal amount of the US$[amount] Series 1 Class [o] Floating Rate Notes due
[maturity] (the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer")
and irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agency and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$100,000 or an
integral multiple of U.S.$1,000 in excess thereof.
88
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
89
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
90
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 1 CLASS A2 INDIVIDUAL NOTE CERTIFICATE
representing
(Euro)[o] Series 1 Class A2 Floating Rate Notes Due [o]
1. Introduction
This Series 1 Class A2 Individual Note Certificate is issued in respect
of the (Euro)[o] Series 1 Class A2 Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o] Euro
((Euro)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
91
(Euro)[o]
Euro[amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Euro ((Euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such
premium and other amounts (if any) as may be payable, all subject to
and in accordance with the Current Issuer Conditions and the provisions
of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
92
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
93
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................., being the registered
holder of this Individual Note Certificate, hereby transfers to ...............
................................................................................
of ............................................................................
...............................................................................,
(Euro) ..................................... in principal amount of the
(Euro)[amount] Series 1 Class A2 Floating Rate Notes due [maturity] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in
relation to the Notes (or any successor to Citibank, N.A., in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (Euro)50,000 or an
integral multiple of (Euro)1,000 in excess thereof.
94
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
95
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 2 CLASS A1 INDIVIDUAL NOTE CERTIFICATE
representing
US$[o] Series 2 Class A1 Floating Rate Notes Due [o]
1. Introduction
This Series 2 Class A1 Individual Note Certificate is issued in respect
of the US$[o] Series 2 Class A1 Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o]US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
96
US$[o]
US Dollars [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o]US Dollars (US$[o])) on
the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such
premium and other amounts (if any) as may be payable, all subject to
and in accordance with the Current Issuer Conditions and the provisions
of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
97
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each Holder of a Note, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
12. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
98
FORM OF TRANSFER
FOR VALUE RECEIVED ............................., being the registered holder
of this Individual Note Certificate, hereby transfers to ......................
................................................................................
of ............................................................................
...............................................................................,
US$ ..................................... in principal amount of the
US$[amount] Series 2 Class A1 Floating Rate Notes due [maturity] (the "Notes")
of Granite Mortgages 04-3 plc (the "Current Issuer") and irrevocably requests
and authorises Citibank, N.A., in its capacity as Registrar in relation to the
Notes (or any successor to Citibank, N.A., in its capacity as such) to effect
the relevant transfer by means of appropriate entries in the Register kept by
it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$100,000 or an
integral multiple of US$1,000 in excess thereof.
99
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
100
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
101
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 2 CLASS [o] INDIVIDUAL NOTE CERTIFICATE
representing
(Euro)[o] Series 2 Class [o] Floating Rate Notes Due [o]
1. Introduction
This Series 2 Class [o] Individual Note Certificate is issued in
respect of the (Euro)[o] Series 2 Class [o] Floating Rate Notes due [o]
(the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"),
limited to the aggregate principal amount of
[o] Euro
((Euro)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
102
(Euro)[o]
Euro[amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Euro ((Euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such
premium and other amounts (if any) as may be payable, all subject to
and in accordance with the Current Issuer Conditions and the provisions
of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
103
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
104
FORM OF TRANSFER
FOR VALUE RECEIVED ......................, being the registered holder of
this Individual Note Certificate, hereby transfers to .........................
................................................................................
of ............................................................................
................................................................................
......................, (Euro) ............................. in principal amount
of the (Euro)[amount] Series 2 Class [o] Floating Rate Notes due [maturity]
(the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer") and
irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (Euro)50,000 or an
integral multiple of (Euro)1,000 in excess thereof.
105
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
106
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
107
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 3 CLASS [o] INDIVIDUAL NOTE CERTIFICATE
representing
(GBP) [o] Series 3 Class [o] Floating Rate Notes Due [o]
1. Introduction
This Series 3 Class [o] Individual Note Certificate is issued in
respect of the (GBP) [o] Series 3 Class [o] Floating Rate Notes due [o]
(the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"),
limited to the aggregate principal amount of
[o] Pounds Sterling
((GBP)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
(GBP) [o]
108
Pounds Sterling [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Pounds Sterling
((GBP)[o])) on the Payment Date falling in [o] (or on such earlier date
as the said principal amount may become repayable in accordance with
the Current Issuer Conditions or the Current Issuer Trust Deed) and to
pay interest on the principal amount from time to time of this
Individual Note Certificate in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
109
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
110
FORM OF TRANSFER
FOR VALUE RECEIVED ........................, being the registered holder of
this Individual Note Certificate, hereby transfers to..........................
of ............................................................................
................................................................................
.............................., (GBP) ........................... in principal
amount of the (GBP) [amount] Series 3 Class [o] Floating Rate Notes due
[maturity] (the "Notes") of Granite Mortgages 04-3 plc (the "Current Issuer")
and irrevocably requests and authorises Citibank, N.A., in its capacity as
Registrar in relation to the Notes (or any successor to Citibank, N.A., in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (GBP)50,000 or an
integral multiple of (GBP)1,000 in excess thereof.
111
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
112
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
113
GRANITE MORTGAGES 04-3 PLC
(Incorporated with limited liability in England and Wales with
registered number 5168395)
SERIES 3 CLASS A2 INDIVIDUAL NOTE CERTIFICATE
representing
(GBP) [o] Series 3 Class A2 Fixed Rate Notes Due [o]
1. Introduction
This Series 3 Class A2 Individual Note Certificate is issued in respect
of the (GBP) [o] Series 3 Class A2 Fixed Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o] Pounds Sterling
((GBP)[o])
The Notes are constituted by, are subject to, and have the benefit of,
a trust deed dated 22 September 2004 (as amended or supplemented from
time to time, the "Current Issuer Trust Deed") between the Current
Issuer and The Bank of New York as trustee (the trustee for the time
being thereof being herein called the "Note Trustee") and are the
subject of a paying agent and agent bank agreement dated 22 September
2004 (as amended or supplemented from time to time, the "Current Issuer
Paying Agent and Agent Bank Agreement") between the Current Issuer, the
Principal Paying Agent, the Agent Bank, Citibank, N.A. as registrar
(the "Registrar", which expression includes any successor registrar
appointed from time to time in connection with the Notes), the Transfer
Agent, the US Paying Agent and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any
particular numbered Condition) shall be to the Current Issuer
Conditions (or that particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this
Individual Note Certificate in the aggregate principal amount of:
(GBP) [o]
114
Pounds Sterling [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Pounds Sterling
((GBP)[o])) on the Payment Date falling in [o] (or on such earlier date
as the said principal amount may become repayable in accordance with
the Current Issuer Conditions or the Current Issuer Trust Deed) and to
pay interest on the principal amount from time to time of this
Individual Note Certificate in arrear on each Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of
Notes represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar
by reference to the Register and only the Holder is entitled to payment
in respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank,
N.A. as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
115
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-3 PLC
By: ............................................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
......................................................
[manual signature]
(duly authorised)
116
FORM OF TRANSFER
FOR VALUE RECEIVED ..................., being the registered holder of this
Individual Note Certificate, hereby transfers to...............................
of ............................................................................
................................................................................
.........................., (GBP) ........................ in principal amount
of the (GBP) [amount] Series 3 Class A2 Fixed Rate Notes due [maturity] (the
"Notes") of Granite Mortgages 04-3 plc (the "Current Issuer") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in
relation to the Notes (or any successor to Citibank, N.A., in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ............................................
By: ............................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (GBP)50,000 or an
integral multiple of (GBP)1,000 in excess thereof.
117
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
118
SCHEDULE 3
CURRENT ISSUER CONDITIONS OF THE NOTES
119
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1 (A) Definitions
As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
"Basic Terms Modification" means any of the following matters,
namely:
(i) any reduction or cancellation of the amount payable or,
where applicable, any modification, except where such
modification is in the opinion of the Note Trustee bound to
result in an increase, of the method of calculating the
amount payable or any modification of the date of payment
or, where applicable, of the method of calculating the date
of payment in respect of any principal, premium or interest
in respect of the Current Issuer Notes;
(ii) any alteration in the priority in which payments are made to
Noteholders pursuant to any Current Issuer Priority of
Payments;
(iii) any alteration of the currency in which payments under the
Current Issuer Notes are to be made;
(iv) any alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(v) any alteration of this proviso or the proviso to paragraph 6
below;
"Block Voting Instruction" shall mean, in relation to any Meeting,
an English language document issued by the Registrar and dated in
which:
(a) it is certified that:
(i) certain specified Current Issuer Notes (each a
"Blocked Note") have been blocked in an account with a
clearing system and will not be released until the
conclusion of the Meeting and that the holder of each
Blocked Note or a duly authorised person on its behalf
has instructed the Registrar that the votes
attributable to such Blocked Note are to be cast in a
particular way on each resolution to be put to the
Meeting; or
(ii) each registered holder of such Current Issuer Notes or
a duly authorised person on its behalf has instructed
the Registrar that the vote(s) attributable to the
Current Issuer Note or Current Issuer Notes so held
(each a "Relevant Note") should be cast in a
particular way in relation to the resolution or
resolutions to be put to such Meeting or any adjourned
such Meeting;
120
(iii) and in each case that, all such instructions are,
during the period commencing 48 hours prior to the
time for which such Meeting or any such adjourned
Meeting is convened and ending at the conclusion or
adjournment thereof, neither revocable nor capable of
amendment;
(b) the aggregate principal amount of the Blocked Notes and
Relevant Notes so held are listed distinguishing with regard
to each such resolution between those in respect of which
instructions have been given as aforesaid that the votes
attributable thereto should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the votes attributable thereto should be
cast against the resolution; and
(c) one or more persons named in such document is or are
authorised and instructed by such Registrar to cast the
votes attributable to such Blocked Note and Relevant Notes
so listed in accordance with the instructions referred to in
(a) above as set out in such document;
"Chairman" means, in relation to any Meeting, the individual who
takes the chair in accordance with paragraph 4 (Chairman);
"Extraordinary Resolution" means (a) a resolution passed at a
Meeting duly convened and held in accordance with the provisions
of this Schedule 4 by a majority consisting of not less than
three-fourths of the persons voting thereat upon a show of hands
or if a poll is duly demanded by a majority consisting of not less
than three-fourths of the votes cast on such poll or (b) a
resolution in writing signed by or on behalf of all the
Noteholders of a particular class of Current Issuer Notes which
resolution may be contained in one document or several documents
in like form each signed by or on behalf of one or more of the
relevant Noteholders;
"Form of Proxy" means, in relation to any Meeting, a document in
the English language available from the Registrar signed by a
Noteholder or, in the case of a corporation, executed under its
seal or signed on its behalf by a duly authorised officer of the
corporation and delivered to the Registrar not later than 48 hours
before the time fixed for such Meeting, appointing one or more
persons who is or are authorised and instructed to vote in respect
of the Current Issuer Notes held by such Noteholder;
"Meeting" shall mean a meeting of Noteholders (whether originally
convened or reviewed following an adjournment);
"Proxy" means, in relation to any Meeting, a person appointed to
vote under a Block Voting Instruction or a Form of Proxy other
than:
(a) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing
of such revocation by the time which is 48 hours before the
time fixed for such Meeting; and
121
(b) any such person appointed to vote at a Meeting which has
been adjourned for want of a quorum and who has not been
re-appointed to vote at a Meeting when it is resumed;
"Current Issuer Notes" and "Noteholders" shall mean:
(a) in connection with a Meeting of Senior Noteholders, Senior
Notes and Senior Noteholders, respectively;
(b) in connection with a Meeting of Mezzanine Noteholders,
Mezzanine Notes and Mezzanine Noteholders respectively;
(c) in connection with a Meeting of the Class M Noteholders,
Class M Notes and Class M Noteholders respectively; and
(d) in connection with a Meeting of Junior Noteholders, Junior
Notes and Junior Noteholders respectively;
"Written Resolution" means a resolution in writing signed by or on
behalf of all holders of a class of Current Issuer Notes who for
the time being are entitled to receive notice of a Meeting in
accordance with the provisions of this Schedule, whether contained
in one document or several documents in the same form, each signed
by or on behalf of one or more such holders of the relevant class
of Current Issuer Notes;
"24 hours" means a period of 24 hours including all or part of a
day upon which banks are open for business in both the place where
the relevant Meeting is to be held and in each of the places where
the Paying Agents have their Specified Offices (disregarding for
this purpose the day upon which such Meeting is to be held) and
such period shall be extended by one period or, to the extent
necessary, more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are open for
business in all of the places as aforesaid; and
"48 hours" means 2 consecutive periods of 24 hours.
(B) Issue of Block Voting Instructions
The holder of a Current Issuer Note may require the Registrar to issue a
Block Voting Instruction by arranging (to the satisfaction of the
Registrar) for such Current Issuer Note to be blocked in an account with
a clearing system not later than 48 hours before the time fixed for the
relevant Meeting. The holder of a Current Issuer Note may require the
Registrar to issue a Block Voting Instruction by delivering to the
Registrar written instructions not later than 48 hours before the time
fixed for the relevant Meeting. Any holder of a Current Issuer Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting Instruction and a Form of Proxy cannot be outstanding
simultaneously in respect of the same Current Issuer Note.
122
(C) References to Blocking/Release of Current Issuer Notes
Where Current Issuer Notes are represented by Global Note Certificates
or are held in individual certificated form within a Clearing System)
references to blocking or release, of Current Issuer Notes shall be
construed in accordance with the usual practices (including blocking the
relevant account) of the relevant Clearing System.
(D) Issue of Forms of Proxy
(i) A holder of Current Issuer Notes may obtain an uncompleted and
unexecuted Form of Proxy from the Registrar.
(ii) Any holder of Current Issuer Notes which is a corporation may by
resolution of its directors or other governing body authorise any
person to act as its representative (a "Representative") in
connection with any Meeting.
(iii) Any Proxy or Representative shall, so long as such appointment
remains in force, be deemed for all purposes in connection with
the relevant Meeting, to be the holder of the Current Issuer Notes
to which such appointment relates and the holder of the Current
Issuer Notes shall be deemed for such purposes not to be the
holder.
2. Convening of Meeting
The Current Issuer or the Note Trustee may convene a Meeting at any
time, and the Note Trustee shall be obliged to do so subject to it being
indemnified to its satisfaction upon a request in writing of Noteholders
holding not less than one-tenth in principal amount of the outstanding
Current Issuer Notes of any class or classes entitled to vote and, if
the Current Issuer defaults for a period of seven days in convening such
a Meeting, the same may be convened by the Note Trustee or the
requisitionists. Every such Meeting shall be held on such date and at
such time and place as the Note Trustee may appoint or approve.
3. Notice
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the Meeting is to be held) specifying the
place, day and hour of Meeting shall be given to the Noteholders or, as
the case may be the Noteholders of any class of Current Issuer Notes
entitled to vote, the Paying Agents, the Agent Bank and the Registrar
prior to any Meeting. Such notice, which shall be in the English
language, shall state generally the nature of the business to be
transacted at the Meeting thereby convened and shall specify the terms
of any resolution to be proposed. Such notice shall include statements,
if applicable, to the effect that (a) Current Issuer Notes may be
blocked in clearing systems for the purposes of appointing Proxies under
Block Voting Instructions until 48 hours before the time fixed for the
Meeting and (b) a Noteholder may appoint a Proxy either (i) under a
Block Voting Instruction by delivering written instructions to the
Registrar or (ii) by executing and delivering a Form of Proxy to the
Specified Office of the Registrar, in either case until 48 hours before
the time fixed for the Meeting. A copy of the notice shall be sent by
post to the Note Trustee (unless the Meeting is convened by the Note
Trustee) and, to the Current Issuer (unless the Meeting is convened by
the Current Issuer).
123
4. Chairman
A person (who may, but need not be, a Noteholder) nominated in writing
by the Note Trustee shall be entitled to take the chair at the relevant
Meeting, but if no such nomination is made or if at any Meeting the
person nominated shall not be present within 15 minutes after the time
appointed for holding the Meeting the Noteholders present shall choose
one of their number to be Chairman, failing which the Current Issuer may
appoint a Chairman. The Chairman of an adjourned Meeting need not be the
same person as was Chairman of the Meeting from which the adjournment
took place.
5. Quorum
Subject as provided in the Current Issuer Conditions:
(a) any such Meeting of two or more persons present holding Current
Issuer Notes or being Proxies or Representatives and holding or
representing in the aggregate not less than one-twentieth of the
principal amount of the Current Issuer Notes of the relevant class
or classes for the time being outstanding (or, at any adjourned
Meeting, two or more persons being or representing Noteholders
whatever the aggregate Principal Amount Outstanding of the Current
Issuer Notes of the relevant class or classes) shall (except for
the purpose of passing an Extraordinary Resolution) form a quorum
for the transaction of business and no business (other than the
choosing of a Chairman) shall be transacted at any Meeting unless
the requisite quorum be present at the commencement of the
relevant business;
(b) the quorum at any such Meeting for passing an Extraordinary
Resolution other than an Extraordinary Resolution to sanction a
Basic Term Modification shall (subject as provided below) be two
or more persons present holding or representing Current Issuer
Notes or being Proxies or Representatives and holding or
representing in the aggregate more than half of the aggregate
principal amount of the Current Issuer Notes outstanding (as
defined in Clause 1.6 of the Current Issuer Trust Deed) of the
Current Issuer Notes of the relevant class of classes (or, at any
adjourned Meeting, two or more persons being or representing
Noteholders whatever the aggregate principal amount of the Current
Issuer Notes outstanding (as defined in Clause 1.6 of the Current
Issuer Trust Deed) of the relevant class or classes so held or
represented); or
(c) at any Meeting the business of which includes the passing of an
Extraordinary Resolution to sanction a Basic Terms Modification,
the quorum for passing the requisite Extraordinary Resolution
shall be two or more persons present holding Current Issuer Notes
or being Proxies or Representatives and holding or representing in
the aggregate not less than three quarters in aggregate principal
amount of the Current Issuer Notes outstanding (as defined in
Clause 1.6 of the Current Issuer Trust Deed) of the relevant class
or classes (or, at any adjourned Meeting, two or more persons
present holding or representing in the aggregate not less than one
quarter in aggregate principal amount of the Current Issuer Notes
outstanding (as defined in Clause 1.6 of the Current Issuer Trust
Deed) of the relevant class or classes);
124
Provided always that so long as at least the relevant fraction of
the aggregate Principal Amount Outstanding of the relevant class
of Current Issuer Notes referred to in sub-paragraph (a), (b) or
(c) above, as the case may be, is represented by a Global Note
Certificate or a single Individual Note Certificate, a single
person being a Proxy or Representative of such class of Current
Issuer Notes represented thereby shall be deemed to be two persons
for the purpose of forming a quorum.
6. Adjournment for want of quorum
If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any Meeting a
quorum is not present for the transaction of any particular business,
then, subject and without prejudice to the transaction of the business
(if any) for which a quorum is present:
(a) if convened upon the requisition of Noteholders, the Meeting shall
be dissolved; and
(b) in any other case, the Meeting shall stand adjourned to the same
day in the next week (or if such day is a public holiday the next
succeeding Business Day) at the same time and place (except in the
case of a Meeting at which an Extraordinary Resolution is to be
proposed in which case it shall stand adjourned for such period,
being not less than 13 clear days nor more than 42 clear days, and
to such place as may be appointed by the Chairman either at or
subsequent to such Meeting and approved by the Note Trustee).
Provided, however, that, if within 15 minutes (or such longer period not
exceeding 30 minutes as the Chairman may decide) after the time
appointed for any adjourned Meeting a quorum is not present for the
transaction of any particular business, then, subject and without
prejudice to the transaction of the business (if any) for which a quorum
is present, the Meeting shall be dissolved as no Meeting may be
adjourned more than once for want of a quorum.
7. Notice following Adjournment
Notice of any adjourned Meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original Meeting as provided in paragraph 3 above, but as if 10 days
notice (exclusive of the day on which the notice is given and the day on
which the Meeting is to be resumed) were substituted for the 21 days
notice as provided in paragraph 3 above, and such notice shall
specifically state the relevant quorum requirements which will apply
when the Meeting resumes. Subject as aforesaid it shall not be necessary
to give any notice of an adjourned Meeting.
8. Show of hands
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he may be entitled as
a Noteholder or as a Proxy or as a Representative.
125
9. Chairman's declaration
At any Meeting, unless a poll is (before or on the declaration of the
result of the show of hands) validly demanded by the Chairman, the
Current Issuer, the Note Trustee or any person present holding a
Individual Note Certificate or being a Proxy or Representative (whatever
the principal amount of the Current Issuer Notes so held or represented
by him) a declaration by the Chairman that a resolution has been carried
or carried by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of or
against such resolution.
10. Poll
Subject to paragraph 12 (Limitation on Adjournments) below, if at such
Meeting a poll is demanded it shall be taken in such manner and subject
as hereinafter provided either at once or after an adjournment as the
Chairman directs and the result of such poll shall be deemed to be the
resolution of the Meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll shall not prevent the
continuance of the Meeting for the transaction of any business other
than the motion on which the poll has been demanded.
11. Adjourned Meeting
The Chairman may with the consent of (and shall if directed by) any such
Meeting adjourn the same from time to time and from place to place, but
no business shall be transacted at any adjourned Meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the Meeting from which the adjournment took place.
12. Limitation on Adjournments
Any poll demanded at any adjourned Meeting on the election of a Chairman
or on any question of adjournment shall be taken at the Meeting without
adjournment.
13. Participation
Any Proxy and/or Representative, the Note Trustee and its lawyers and
financial advisers and any director, officer or employee of a
corporation being a trustee of the Current Issuer Trust Deed and any
director or officer of the Current Issuer and its lawyers and financial
advisers, the Registrar, and any other person authorised so to do by the
Meeting or the Note Trustee may attend and speak at any Meeting. Save as
aforesaid, but without prejudice to the definition of "Principal Amount
Outstanding", no person shall be entitled to attend and speak nor shall
any person be entitled to vote at any Meeting or join with others in
requesting the convening of such a Meeting or to exercise the rights
conferred on the Noteholders by Clause 7 (Proceedings, Actions and
Indemnification) of the Current Issuer Trust Deed unless he either
produces a Note Certificate or is a Proxy or a Representative or is the
holder of an Individual Note Certificate or Individual Note
Certificates. No person shall be entitled to vote at any Meeting in
respect of Current Issuer Notes held by, for the benefit of, or on
behalf of, the Current Issuer or the Borrowers. Nothing herein shall
prevent any of the Proxies named in any Block Voting Instruction or Form
of Proxy or any
126
Representative from being a director, officer or representative of or
otherwise connected with the Current Issuer.
14. Votes
Subject as provided in paragraph 13 (Participation) hereof at any
Meeting:
(a) on a show of hands every person who is present in person and is a
holder of Current Issuer Notes or is a Proxy or Representative
shall have one vote; and
(b) on a poll every such person who is so present shall have one vote
in respect of each US$1,000 (in the case of the Dollar Notes) or
(GBP)1,000 (in the case of the Sterling Notes) or (Euro)1,000 (in
the case of the Euro Notes) in Principal Amount Outstanding of the
Current Issuer Notes in respect of which he is a Proxy or
Representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction or Form of Proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. Proxies need not be Noteholders
The Proxies named in any Block Voting Instruction or Form of Proxy and
representatives need not be Noteholders.
16. Deposit of votes
Each Block Voting Instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the Registrar and each Form of Proxy shall be
deposited by the Registrar at such place as the Note Trustee shall
approve not less than 24 hours before the time appointed for holding the
Meeting or adjourned Meeting at which the Proxies named in the Block
Voting Instruction or Form of Proxy propose to vote and in default the
Block Voting Instruction or Form of Proxy shall not be treated as valid
unless the Chairman decides otherwise before such Meeting or adjourned
Meeting proceeds to business. A notarially certified copy of each Block
Voting Instruction and Form of Proxy shall be deposited with the Note
Trustee before the commencement of the Meeting or adjourned Meeting but
the Note Trustee shall not thereby be obliged to investigate or be
concerned with the validity of or the authority of the Proxies named in
any such Block Voting Instruction or Form of Proxy.
17. Validity of Votes by Proxies
Any vote by a Proxy given in accordance with the terms of a Block Voting
Instruction or Form of Proxy shall be valid notwithstanding the previous
revocation or amendment of the Block Voting Instruction or the Form of
Proxy or of any of the Noteholders' instructions pursuant to which it
was executed provided that no intimation in writing of such revocation
or amendment shall have been received from the Noteholder by the
Registrar by the time being 24 hours before the time appointed for
holding the Meeting or adjourned Meeting at which the Block Voting
Instruction or Form of Proxy is to be used. Unless revoked, any
appointment of a Proxy under a Block Voting Instruction or Form of Proxy
in relation to a Meeting shall remain in force in relation to any
resumption of such Meeting following an adjournment; provided, however,
that no such appointment of a Proxy in relation to a Meeting originally
convened which has been adjourned for want of a quorum shall remain in
127
force in relation to such Meeting when it is resumed. Any person
appointed to vote at such a Meeting must be re-appointed under a Block
Voting Instruction or Form of Proxy to vote at the Meeting when it is
resumed.
18. Record Date
The Current Issuer may fix a record date for the purposes of any Meeting
or any resumption thereof following its adjournment for want of a quorum
provided that such record date is not more than 10 days prior to the
time fixed for such Meeting or (as the case may be) its resumption. The
person in whose name a Current Issuer Note is registered in the Register
on the record date at close of business in the city in which the
Registrar has its Specified Office shall be deemed to be the holder of
such Current Issuer Note for the purposes of such Meeting and
notwithstanding any subsequent transfer of such Current Issuer Note or
entries in the Register; and provided that any Proxy appointed pursuant
to a Form of Proxy shall so long as such appointment remains in force,
be deemed for all purposes in connection with any Meeting or proposed
Meeting specified in such appointment, to be the holder of the Current
Issuer Note to which such appointment relates and the holder of the
Current Issuer Note shall be deemed for the purposes not to be the
holder.
19. Powers
Subject always to the provisions of Clause 11 (Modification and Waiver)
of the Current Issuer Trust Deed and the Current Issuer Conditions, a
Meeting shall, in addition to the powers hereinbefore given, have the
following powers exercisable only by Extraordinary Resolution (subject
to the provisions relating to quorum contained in paragraphs 5 (Quorum)
and 6 (Adjournment for want of Quorum) above) namely:
(A) power to sanction any compromise or arrangement proposed to be
made between the Current Issuer, the Note Trustee, any appointee
of the Note Trustee and the Noteholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Current
Issuer against any other or others of them or against any other
party to any of the Current Issuer Transaction Documents or
against any of their property whether such rights shall arise
under the Current Issuer Trust Deed, any other Current Issuer
Transaction Document or otherwise;
(C) power to assent to any modification of the provisions of the
Current Issuer Conditions, the Current Issuer Trust Deed or any
other Current Issuer Transaction Document which shall be proposed
by the Current Issuer, the Note Trustee, or any Noteholder or any
other person;
(D) power to give any authority or sanction which under the provisions
of the Current Issuer Conditions or the Current Issuer Trust Deed
is required to be given by Extraordinary Resolution;
128
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(F) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of the
Current Issuer Trust Deed;
(G) power to discharge or exonerate the Note Trustee and/or any
appointee of the Note Trustee from all liability in respect of any
act or omission for which the Note Trustee and/or such appointee
may have become responsible under the Current Issuer Trust Deed;
(H) power to remove any trustee;
(I) power to authorise the Note Trustee and/or any appointee of the
Note Trustee to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution;
(J) power to sanction any scheme or proposal for the exchange or sale
of the Current Issuer Notes for or the conversion of the Current
Issuer Notes into or the cancellation of the Current Issuer Notes
in consideration of shares, stock, notes, bonds, debentures,
debenture stock and/or other obligations and/or notes of the
Current Issuer or any other company formed or to be formed, or for
or into or in consideration of cash, or partly for or into or in
consideration of such shares, stock, notes, bonds, debentures,
debenture stock and/or other obligations and/or notes as aforesaid
and partly for or into or in consideration of cash and for the
appointment of some person with power on behalf of the Noteholders
to execute an instrument of transfer of the Individual Note
Certificates held by them in favour of the persons with or to whom
the Current Issuer Notes are to be exchanged or sold respectively,
provided, however, that:
(i) no Extraordinary Resolution of the Senior Noteholders or the
Mezzanine Noteholders or the Class M Noteholders or the Junior
Noteholders to sanction a Basic Terms Modification shall be
effective for any purpose unless it shall have been sanctioned by
an Extraordinary Resolution of (aa) (in the case of an
Extraordinary Resolution of the Senior Noteholders) the Mezzanine
Noteholders, the Class M Noteholders and the Junior Noteholders or
(bb) (in the case of an Extraordinary Resolution of the Mezzanine
Noteholders) the Senior Noteholders (to the extent that any Senior
Notes are then outstanding), the Class M Noteholders and the
Junior Noteholders or (cc) (in the case of an Extraordinary
Resolution of the Class M Noteholders) the Senior Noteholders, the
Mezzanine Noteholders (to the extent that any Senior Notes and/or
Mezzanine Notes are then outstanding) and the Junior Noteholders,
or (dd) (in the case of an Extraordinary Resolution of the Junior
Noteholders) the Senior Noteholders, the Class M Noteholders and
the Mezzanine Noteholders (to the extent that any Senior Notes,
Class M Notes and/or Mezzanine Notes are then outstanding).
129
(ii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the Mezzanine Noteholders shall be effective for any
purpose while any Senior Notes remain outstanding unless either
(aa) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of any or all of the
Senior Noteholders or (bb) it is sanctioned by an Extraordinary
Resolution of the Senior Noteholders.
(iii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the Class M Noteholders shall be effective for any
purpose while any Senior Notes or Mezzanine Notes remain
outstanding unless either (aa) the Note Trustee is of the opinion
that it will not be materially prejudicial to the interests of any
or all of the Senior Noteholders and/or Mezzanine Noteholders (as
the case may be) or (bb) it is sanctioned by an Extraordinary
Resolution of the Senior Noteholders and/or Mezzanine Noteholders.
(iv) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the Junior Noteholders shall be effective for any
purpose while any Senior Notes, Mezzanine Notes or Class M Notes
remain outstanding unless either (aa) the Note Trustee is of the
opinion that it will not be materially prejudicial to the
interests of any or all of the Senior Noteholders, the Mezzanine
Noteholders and/or the Class M Noteholders (as the case may be) or
(bb) it is sanctioned by an Extraordinary Resolution of the Senior
Noteholders, the Mezzanine Noteholders and/or the Class M
Noteholders (as the case may be).
20. Extraordinary Resolution binds all Noteholders
Subject to the provisos to paragraph 19 (Powers), any Extraordinary
Resolution passed at a Meeting duly convened and held in accordance with
the Current Issuer Trust Deed shall be binding upon the Noteholders of
all classes whether present or not present at such Meeting and whether
or not voting and each of them shall be bound to give effect thereto
accordingly and the passing of any such Extraordinary Resolution shall
be conclusive evidence that the circumstances justify the passing
thereof. Notice of the result of the voting on any Extraordinary
Resolution duly considered by the Noteholders shall be given by the
Current Issuer to the Noteholders in accordance with Condition 14
(Notice to Noteholders) within 14 days of such result being known
provided that the non-publication of such notice shall not invalidate
such result.
21. Senior Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Senior Notes:
(i) a single Meeting of the holders of all series of Senior Notes may
be held whether or not there is a conflict of interest between the
holders of such Senior Notes;
(ii) there shall be no provision for a Meeting of the holders of one
series only of the Senior Notes; and
130
(iii) as the Senior Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Senior Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Dollar Currency Swap Rate or Euro Currency Swap Rate, as the case
may be.
22. Mezzanine Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Mezzanine Notes:
(i) a single Meeting of the holders of all series of Mezzanine Notes
may be held whether or not there is a conflict of interest between
the holders of such Mezzanine Notes;
(ii) there shall be no provision for a Meeting of the holders of one
series only of the Mezzanine Notes; and
(iii) as the Mezzanine Notes are not all denominated in the same
currency, the Principal Amount Outstanding of any Mezzanine Note
denominated in Dollars or Euro shall be converted into Sterling at
the relevant Dollar Currency Swap Rate or Euro Currency Swap Rate,
as the case may be.
23. Class M Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Class M Notes:
(i) a single Meeting of the holders of all series of the Class M Notes
may be held whether or not there is a conflict of interest between
the holders of such Class M Notes;
(ii) there shall be no provision for a Meeting of the holders of one
series only of the Class M Notes; and
(iii) as the Class M Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Class M Note denominated
in US Dollars or Euro shall be converted into Sterling at the
relevant Dollar Currency Swap Rate or the Euro Currency Swap Rate,
as the case may be.
24. Junior Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Junior Notes
(i) a single Meeting of the holders of all series of Junior Notes may
be held whether or not there is a conflict of interest between the
holders of such Junior Notes;
(ii) there shall be no provision for a Meeting of the holders of one
series only of the Junior Notes; and
131
(iii) as the Junior Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Junior Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Dollar Currency Swap Rate or Euro Currency Swap Rate, as the case
may be.
25. Minutes
Minutes of all resolutions and proceedings at every Meeting shall be
made and entered in books to be from time to time provided for that
purpose by the Current Issuer and any such minutes as aforesaid if
purporting to be signed by the Chairman of the Meeting at which such
resolutions were passed or proceedings transacted shall be conclusive
evidence of the matters therein contained and until the contrary is
proved every such Meeting in respect of the proceedings of which minutes
have been made shall be deemed to have been duly held and convened and
all resolutions passed or proceedings transacted thereat to have been
duly passed or transacted.
26. Further Regulations
Subject to all other provisions of the Current Issuer Trust Deed, the
Note Trustee may without the consent of the Current Issuer or the
Noteholders:-
(i) prescribe such further regulations regarding the requisitioning
and/or the holding of Meetings of Noteholders and attendance and
voting thereat as the Note Trustee may in its sole discretion
think fit; and
(ii) interpret the Current Issuer Conditions in the context of the more
detailed provisions set out herein.
132
EXECUTION PAGE
The Current Issuer
Executed by
GRANITE MORTGAGES 04-3 PLC
as its deed as follows: By
Signed for and on its -------------------------------------
behalf by one of its directors for and on behalf of LDC
and by another of its directors/its Securitisation Director No.1 Limited
secretary
Name Clive Rakestrow
-------------------------------------
By
--------------------------------------
for and on behalf of LDC
Securitisation Director No.2 Limited
Name Sharon Tyson
-------------------------------------
The Note Trustee
Executed by
THE BANK OF NEW YORK By
as follows: ---------------------------------------
Signed for and on its behalf by Duly Authorised Attorney/Signatory
one of its duly authorised
attorneys/signatories Name_______________________________________
133