Exhibit 4.6.1
Execution Version
Dated 19 January 2005
GRANITE MASTER ISSUER plc
as Master 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
REF:30507-30040/679836
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of
1939, as amended Section of Deed
- ----------------- ---------------
310(a)...............................................................14.2
310(b)...............................................................14.2
310(c).......................................................Inapplicable
311(a)...........................................................10.3(kk)
311(b)...........................................................10.3(kk)
311(c).......................................................Inapplicable
312(a)..............................................................5(ee)
312(b)...............................................................19.2
312(c)...............................................................19.2
313..............................................................10.3(jj)
314(a)...............................................................5(u)
314(b)..............................................................5(gg)
314(c).........................................................16.1, 17.1
314(d)...............................................................17.1
314(e)...............................................................16.2
315(a).............................................................. 10.1
315(b)...............................................................10.8
315(c)................................................................2.7
315(d)..............................................................10.12
316(a)..........................................................7.2, 11.2
316(b).............................................................2.2(d)
316(c)................................................................7.2
317(a)................................................................6.1
317(b)...............................................................5(p)
318(a).................................................................15
318(b)...............................................................17.4
318(c)................................................................1.4
* This Cross-Reference Table does not constitute part of this Deed and shall
not affect the interpretation of any of its terms or provisions.
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CONTENTS
1. Definitions..........................................................1
2. Covenant to Repay etc................................................3
3. Form, Issue and Deposit of Note Certificates.........................7
4. Covenant of Compliance..............................................10
5. Covenants by the Master Issuer......................................10
6. Enforcement.........................................................16
7. Proceedings, Actions and Indemnification............................17
8. Application of Moneys etc...........................................19
9. Remuneration and Indemnification of Note Trustee....................20
10. Supplement to the Trustee Acts......................................23
11. Modification and Waiver.............................................34
12. Entitlement to Treat holder as owner................................36
13. Currency Indemnity..................................................37
14. Appointment, Removal and Retirement of Note Trustee.................37
15. Trust Indenture Act Prevails........................................39
16. Certificates and Opinions...........................................39
17. Rights Cumulative...................................................40
18. Notices.............................................................40
19. Third Party Rights..................................................41
20. Execution in Counterparts; Severability.............................41
21. Governing Law.......................................................41
SCHEDULE 2..........................................................51
SCHEDULE 3 [TERMS AND] CONDITIONS OF THE NOTES......................57
SCHEDULE 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS...................58
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THIS ISSUER TRUST DEED is made on 19 January, 2005
BETWEEN:
(1) GRANITE MASTER ISSUER plc, (registered number 5250668) 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 Master Issuer; and
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch at 48th Floor, One Canada Square, 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 Master
Issuer passed on 18 January, 2005 the Master Issuer resolved to
establish a programme pursuant to which the Master Issuer may, from time
to time, issue Issuer Notes as set out herein.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the Issuer Conditions.
NOW THIS ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. Definitions
1.1 The provisions of:
(a) the Programme Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen & Overy LLP on 19
January, 2005; and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen & Overy LLP on 19
January, 2005,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Deed.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Programme Master Definitions
Schedule.
1.2 All references in these presents:
(a) to principal and/or premium and/or interest in respect of the
Issuer Notes or to any monies payable by the Master Issuer under
these presents shall be deemed to include a reference to any
additional amounts which may be payable under Condition 4(E)
(Deferred Interest) or, if applicable, under any undertaking or
covenant given pursuant to Clause 2.2 (Covenant to Repay);
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(b) to "these presents" and/or to "this Deed" means this Trust Deed,
the schedules hereto, any deed expressed to be supplemental hereto
and the Issuer Notes, the Issuer Conditions and, unless the
context otherwise requires, the Pricing Supplements, all as from
time to time supplemented or modified in accordance with the
provisions contained in these presents and/or where applicable,
therein contained;
(c) to guarantees or to an obligation being guaranteed shall be deemed
to include respectively references to indemnities or to an
indemnity being given in respect thereof;
(d) to any action, remedy or method of proceeding for the enforcement
of the rights of creditors shall be deemed to include, in respect
of any jurisdiction other than England, references to such action,
remedy or method of proceeding for the enforcement of the rights
of creditors available or appropriate in such jurisdiction as
shall most nearly approximate to such action, remedy or method of
proceeding described or referred to in these presents;
(e) to taking proceedings against the Master Issuer shall be deemed to
include references to proving in the winding up of the Master
Issuer; and
(f) to DTC, Euroclear and Clearstream, Luxembourg shall be deemed to
include references to any other or additional clearing system as
may be approved in writing by the Note Trustee.
1.3 Unless the context otherwise requires words or expressions used in these
presents shall bear the same meanings as in the Companies 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 a specified percentage in
Principal Amount Outstanding of any Class of Issuer Notes, the Principal
Amount Outstanding of any Issuer Note not denominated in Sterling shall
be converted into Sterling at the Specified Currency Swap Rate
applicable to such Issuer Note.
1.6 "outstanding" means, in relation to any Series and Class of Issuer
Notes, all the Issuer Notes of such Series and Class other than:
(a) those which have been redeemed in accordance with these presents;
(b) those in respect of which the date for redemption in accordance
with the provisions of the Issuer Conditions has occurred and for
which the redemption moneys (including all interest accrued
thereon to such date for redemption) have been duly paid to the
Note Trustee or the Principal Paying Agent in the manner provided
for in the Issuer Paying Agent and Agent Bank Agreement
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(and, where appropriate, notice to that effect has been given to
the relevant class or classes of Noteholders in accordance with
Condition 14 (Notice to Noteholders)) and remain available for
payment in accordance with the Issuer Conditions;
(c) those which have been purchased and surrendered for cancellation
as provided in Condition 5 (Redemption, Purchase and Cancellation)
and notice of the cancellation of which has been given to the Note
Trustee;
(d) those which have become void under Condition 7 (Prescription);
(e) those mutilated or defaced Note Certificates which have been
surrendered or cancelled and in respect of which replacement Note
Certificates have been issued pursuant to Condition 13
(Replacement of Notes);
(f) (for the purpose only of ascertaining the amount of the Issuer
Notes outstanding and without prejudice to the status for any
other purpose of the relevant Issuer Notes) those Note
Certificates which are alleged to have been lost, stolen or
destroyed and in respect of which replacements have been issued
pursuant to Condition 13 (Replacement of Notes);
(provided that) for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting (as defined in
Schedule 4 (Provisions for Meetings of Noteholders) hereto),
an Extraordinary Resolution in writing as envisaged by part
(b) of the definition of Extraordinary Resolution and any
direction or request by the holders of Issuer Notes;
(ii) the determination of how many and which Issuer Notes are for
the time being outstanding for the purposes of Clauses 7
(Proceedings, Actions and Indemnification) and 11.2
(Waiver), Condition 10 (Enforcement of Notes) and Schedule 4
(Provisions for Meetings of Noteholders); and
(iii) any discretion, power or authority, whether contained in
these presents or provided by law, which the Note Trustee is
required to exercise in or by reference to the interests of
the Noteholders or any of them,
those Issuer Notes (if any) which are for the time being held by,
or for the benefit of, the Master Issuer, any subsidiary or
affiliate thereof, any holding company of the Master Issuer or any
other subsidiary or affiliate of any such holding company shall
(unless and until ceasing to be so held) be deemed not to remain
outstanding.
2. Covenant to Repay etc.
2.1 The Issuer Notes: The Issuer Notes will be issued in Series in an
aggregate nominal amount from time to time outstanding not exceeding the
Programme Limit from time to time and for the purpose of determining
such aggregate nominal amount, clause 3 of the Programme Agreement shall
apply. Each Series will comprise one or more Class A Notes, Class B
Notes, Class M Notes, Class C Notes and Class D Notes issued on a single
issue date.
3
Each Series of Issuer Notes issued by the Master Issuer shall be
constituted by a deed or deeds supplemental to this Trust Deed (each, a
"Supplemental Trust Deed") and will have the benefit of the Issuer
Security created pursuant to the Issuer Deed of Charge. The Master
Issuer shall, prior to each Series of Issuer Notes being so constituted,
execute and deliver to the Note Trustee in respect of that Series:
(i) a deed supplemental to this Deed (if applicable, duly
stamped or denoted and in such form as the Note Trustee may
in its absolute discretion stipulate and require) and
containing a covenant by the Issuer in the form mutatis
mutandis of Clause 2.2 of this Deed in relation to the
principal, premium (if any) and interest in respect of the
Issuer Notes in the Series and such other provisions as the
Note Trustee shall require; and
(ii) an Offering Circular (if required for the purposes of the
Financial Services Authority (in its capacity as competent
authority for the purposes of Part VI of the Financial
Services and Markets Act 2000).
A memorandum of every such supplemental deed shall be endorsed by the
Note Trustee on this Trust Deed and by the Master Issuer on its
duplicate of this Trust Deed.
By no later than 3.00 p.m. (London time) on the second Business Day
preceding each proposed Closing Date, the Master Issuer shall deliver or
cause to be delivered to the Note Trustee and the Issuer Security
Trustee a copy of the applicable Pricing Supplement and drafts of all
(if any) legal opinions to be given in relation to the relevant issue
and shall notify the Note Trustee and the Issuer Security Trustee, in
writing and without delay, of the relevant Closing Date, and the nominal
amount, of a particular Series of Issuer Notes.
The Master Issuer will procure that further legal opinion(s) in such
form and with such consent as the Note Trustee may require from the
legal advisers specified in the Programme Agreement is/are delivered to
the Note Trustee and the Issuer Security Trustee:
(b) before any issue of Issuer Notes after each anniversary of this
Trust Deed; and
(c) on such other occasions as the Note Trustee requires (on the basis
that the Note Trustee considers it necessary in view of a change
(or proposed change) in English law, materially affecting the
Master Issuer, these presents, the [Programme Agreement], the
Issuer Paying Agent and Agent Bank Agreement or the Issuer Deed of
Charge, or the Note Trustee has other grounds which shall not
include the mere lapse of time).
Whenever such a request is made for further legal opinions in accordance
with this Clause 2.1 with respect to any Issuer Notes to be issued, the
receipt of such opinion(s) in a form satisfactory to the Note Trustee
shall be a further condition precedent to the issue of those Issuer
Notes.
2.2 Covenant to Repay: To the extent that it does not so covenant in any
Supplemental Trust Deed in respect of any Series and Class of Issuer
Notes constituted thereby, the
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Master Issuer covenants with the Note Trustee that it will, in
accordance with these presents, on the due date for the final maturity
of any Series and Class of Issuer Notes, or on such earlier date as the
same or any part thereof may become due and repayable thereunder, in
accordance with the Issuer Conditions, pay or procure to be paid
unconditionally to or to the order of the Note Trustee in the Specified
Currency, in immediately available funds or same day funds, as
applicable, the principal amount of such Series and Class of Issuer
Notes, repayable on that date. Except in the case of Zero Coupon Notes,
the Master Issuer shall in the meantime and until all such payments
(both before and after any judgment or other order of a court of
competent jurisdiction) are duly made (subject to the provisions of the
Issuer Conditions), pay or procure to be paid unconditionally to or to
the order of the Note Trustee as aforesaid, interest (which shall accrue
from day to day) on the Principal Amount Outstanding of such Series and
Class of Issuer Notes, at rates and/or in amounts set out in or (as the
case may be) calculated from time to time in accordance with, or
specified in, and on the dates provided for in the Issuer Conditions
(subject to Clause 2.6 below), provided that;
(a) every payment of principal or interest in respect of any Series
and Class of Issuer Notes, made to or to the account of the
Principal Paying Agent in the manner provided in the Issuer Paying
Agent and Agent Bank Agreement, shall satisfy the obligations of
the Master Issuer under this Clause 2.2 (Covenant to Repay), in
respect of such Series and Class of Issuer Notes except to the
extent that there is default in the subsequent payment thereof to
the Noteholders in accordance with the Issuer Conditions;
(b) if any payment of principal in respect of any Series and Class of
Issuer Notes is made after the due date, interest shall continue
to accrue on the principal amount of such Issuer Notes (except in
the case of Zero Coupon Notes to which the provisions of Condition
5(G) (Redemption Amounts) shall apply) (both before and after any
judgment or other order of a court of competent jurisdiction) at
the rates aforesaid up to and including the date which the Note
Trustee determines to be the date on and after which payment is to
be made in respect thereof as stated in a notice given to the
holders of such Issuer Notes (such date to be not later than 30
days after the day on which the whole of such principal amount,
together with an amount equal to the interest which has accrued
and is to accrue pursuant to this proviso up to and including that
date, has been received by the Note Trustee or the Principal
Paying Agent);
(c) in any case where payment of the whole or any part of the
principal amount of any Issuer Note is improperly withheld or
refused upon due presentation thereof (if so provided in the
Issuer Paying Agent and Agent Bank Agreement), interest shall
accrue on the whole, or such part of such principal amount of such
Issuer Note (except in the case of Zero Coupon Notes to which the
provisions of Condition 5(G) (Redemption Amounts) shall apply)
which has been so withheld or refused (both before and after any
judgment or other order of a court of competent jurisdiction), at
the rates aforesaid, from and including the date of such
withholding or refusal up to and including the date on which, upon
further presentation of the relevant Issuer Note, such principal
amount due (including interest as aforesaid) is paid to the
Noteholders or (if earlier) the seventh day after notice is given
to the Noteholders in accordance
5
with the 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 Issuer Paying Agent
and Agent Bank Agreement), such payment is in fact made; and
(d) notwithstanding any other provision of these presents, pursuant to
Section 316(b) of the Trust Indenture Act, the right of any
Noteholder to receive payment of principal and interest on any
Series and Class of Issuer Notes, on or after the respective due
dates expressed for such Issuer Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the
Noteholder.
2.3 Additional Interest: The Master Issuer shall pay Additional
Interest in accordance with Condition 4(E)(Deferred Interest).
2.4 On trust: The Note Trustee will hold the benefit of the covenants
contained in this Clause 2 (Covenant to Repay, etc) on trust for the
Noteholders and itself in accordance with these presents.
2.5 Note Trustee's requirements regarding Agents, etc.: At any time after a
Potential Note Event of Default or a Note Event of Default in respect of
the Issuer Notes or any of them shall have occurred (which shall not
have been waived by the Note Trustee or remedied to its satisfaction) or
the Issuer Notes shall otherwise have become due and repayable or
Individual Note Certificates have not been issued when so required in
accordance with these presents and the Global Note Certificates, the
Note Trustee may:
(a) by notice in writing to the Master Issuer, the Principal Paying
Agent, the US Paying Agent, the other Paying Agents, the Agent
Bank, the Transfer Agent and the Registrar require such Agents or
any of them pursuant to the Issuer Paying Agent and Agent Bank
Agreement:
(i) to act thereafter, and until otherwise instructed by the
Note Trustee, as Agents respectively of the Note Trustee on
the terms provided in the Issuer Paying Agent and Agent Bank
Agreement mutatis mutandis (save that the Note Trustee's
liability under any provisions thereof for the
indemnification, remuneration and payment of out-of-pocket
expenses of the Agents shall be limited to the amount for
the time being held by the Note Trustee on the trusts of
these presents relating to the Issuer Notes which is
available to be applied by the Note Trustee for such
purpose) and thereafter to hold all Note Certificates and
all sums, documents and records held by them in respect of
Issuer Notes on behalf of the Note Trustee; and/or
(ii) to deliver up all Note Certificates and all sums, documents
and records held by them in respect of any 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 document or record which any Agent is obliged
not to release by any law or regulation; and/or
6
(b) by notice in writing to the Master Issuer require it to make all
subsequent payments in respect of the Issuer Notes to or to the
order of the Note Trustee with effect from the issue of any such
notice to the Master Issuer and until such notice is withdrawn,
Clause 2.2(a) above relating to the Issuer Notes shall cease to
have effect.
2.6 Interest following Default: The rate of interest payable in respect of
any Series and Class of Issuer Notes which are Floating Rate Notes or
Index Linked Interest Notes and which become immediately payable upon
receipt by the Master Issuer of an Issuer Enforcement Notice given by
the Note Trustee pursuant to the Issuer Conditions shall be calculated
at the same intervals as if such Notes had not become due and payable,
the first of which shall commence on the expiry of the Interest Period
(as defined in the Issuer Conditions) during which such Issuer Notes
become so repayable, in accordance with the Issuer Conditions (with
consequential amendments as necessary) except that the rates of interest
need not be published.
2.7 Exercise by Note 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 of any Series will be initially offered and sold
pursuant to a Registration Statement filed with the SEC. Each
Series and Class of US Notes will be issued in fully registered
global form and be initially represented by a US Global Note
Certificate and which, in aggregate, will represent the aggregate
Principal Amount Outstanding of such US Notes.
(b) The Reg S Notes of any Series will be initially offered and sold
outside the United States to non-US persons pursuant to Reg S.
Each Series and Class Reg S Notes will be issued in fully
registered global form and be initially represented by a Reg S
Global Note Certificate and which, in aggregate, will represent
the aggregate Principal Amount Outstanding of such Reg S Notes.
(c) Each US Global Note Certificate will be registered in the name of
Cede & Co. as nominee for DTC, and be deposited with, the DTC
Custodian and each Reg S Global Note Certificate 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 Certificate and the Reg S Global
Note Certificate of the same Series and Class of any Series shall
be exchangeable, in accordance with their respective terms and as
set out in Clause 3.3 (Individual Note Certificates) below, for
Individual Note Certificates for such Series and Class.
7
3.2 Form of Global Note Certificates: The Global Note Certificates shall be
printed or typewritten and shall be in the form or substantially in the
form set out in Schedule 1 (Form of Global Note Certificates) and may be
a facsimile, which the Master Issuer shall deposit with the DTC
Custodian or the Common Depositary, as the case may be. Each Global Note
Certificate shall represent such of the outstanding Issuer Notes of the
relevant Series and Class as shall be specified therein and shall have a
copy of the applicable Pricing Supplement attached to it and each Global
Note Certificate shall provide that it shall represent the aggregate
Principal Amount Outstanding of the relevant Series and Class of Issuer
Notes from time to time endorsed on the relevant Global Note Certificate
and that the aggregate Principal Amount Outstanding of the Issuer Notes
represented thereby may, from time to time, be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of
interests therein in accordance with the terms of these presents and the
Issuer Paying Agent and Agent Bank Agreement. Any notation on the
Register to reflect the amount of any increase or decrease in the
Principal Amount Outstanding of any Series and Class of Issuer Notes
represented by a Global Note Certificate shall be made by or on behalf
of the Registrar in accordance with such Global Note Certificate and the
Issuer Paying Agent and Agent Bank Agreement. The Global Note
Certificates shall be issued only in registered form, without coupons or
talons, and signed, manually or in facsimile, by a person duly
authorised by the Master Issuer on behalf of the Master Issuer, and the
Master Issuer shall procure that the Global Note Certificates of any
Series of Issuer Notes shall be authenticated by or on behalf of the
Registrar on the relevant Closing Date. The Global Note Certificates for
such Series of Issuer Notes so executed and authenticated shall be
binding and valid obligations of the Master Issuer, notwithstanding that
such duly authorised person ceases to be so authorised at the time the
Registrar authenticates the relevant Global Note Certificate. Title to
any Series and Class of Issuer Notes shall only pass by, and upon, the
registration in the Register in respect thereof, in accordance with the
provisions of the Issuer Paying Agent and Agent Bank Agreement.
3.3 Individual Note Certificates: The Master Issuer shall issue Individual
Note Certificates only if one or more of the following applies while any
Series or Class of Issuer Notes are represented by a Global Note
Certificate. If, at any time after the fortieth day following the later
of the relevant Closing Date and the date of the issue of such Global
Note Certificates:
(a) (i) (in the case of a US Global Note Certificates) DTC has
notified the Master Issuer that it is at any time unwilling or
unable to continue as, or has ceased to be, a clearing agency
registered under the Exchange Act, and a successor to DTC
registered as a clearing agency under the Exchange Act is not
appointed by the Master Issuer within 90 days of such
notification; or (ii) (in the case of a Reg S Global Note
Certificate both Euroclear and Clearstream, Luxembourg are closed
for business for a continuous period of 14 days (other than by
reason of holiday, statutory or otherwise) or announce an
intention permanently to cease business and do so cease to do
business and no alternative clearing system satisfactory to the
Note Trustee is available; or
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax or in the interpretation or administration
8
by a revenue authority or a court or administration of such laws
or regulations which becomes effective on or after the relevant
Closing Date, the Master Issuer or any Paying Agent is or will be
required to make any deduction or withholding from any payment in
respect of such Issuer Notes which would not be required were such
Issuer Notes represented by Individual Note Certificates,
then the Master Issuer shall, at its sole cost and expense within 30
days of the occurrence of the relevant event, issue Individual Note
Certificates of the same class as the Series and Class of Issuer Notes
represented by the relevant Global Note Certificate.
If Individual Note Certificates are issued, the beneficial interests
represented by the Reg S Global Note Certificate representing a Series
and Class of Issuer Notes shall be exchanged by the Master Issuer for
Reg S Individual Note Certificates for such Issuer Notes and the
beneficial interests represented by the US Global Note Certificate
representing a Series and Class of Issuer Notes shall be exchanged by
the Master Issuer for US Individual Note Certificates for such Issuer
Notes.
3.4 Form of Individual Note Certificates: The Individual Note Certificates
shall be printed or typewritten in accordance with all applicable legal
and stock exchange requirements and be in, or substantially be in, the
form set out in Schedule 2 (Form of Individual Note Certificates).
Individual Note Certificates for a Series and Class of Issuer Notes will
be: (1) in the denominations, and transferable in the units, specified
for such Issuer Notes in the applicable Pricing Supplement, (2) serially
numbered, and (3) endorsed with the Issuer Conditions and have a copy of
the relevant Pricing Supplement annexed to them and a form of transfer
in the form, or substantially in the form, also set out in Schedule 2
(Form of Individual Note Certificates). Title to the Individual Note
Certificates shall only pass by and upon the registration in the
Register in respect thereof in accordance with the provisions of the
Issuer Paying Agent and Agent Bank Agreement. The Individual Note
Certificates shall be issued only in registered form and signed manually
or in facsimile by a person duly authorised by or on behalf of the
Master Issuer and the Master Issuer shall procure that the Individual
Note Certificates shall be authenticated by or on behalf of the
Registrar. Each Individual Note Certificate so executed and
authenticated shall be a binding and valid obligation of the Master
Issuer notwithstanding that such duly authorised person ceases to be so
authorised at the time the Registrar authenticates the relevant
Individual Note Certificate.
3.5 Indemnity: If the Master Issuer is obliged to issue or procure the issue
of any Individual Note Certificate pursuant to Clause 3.3 (Individual
Note Certificates) but fails to do so within 30 days of the occurrence
of the relevant event described in Clause 3.3 (Individual Note
Certificates), then the Master Issuer shall indemnify the Note Trustee
and the relevant Noteholders and keep them indemnified against any loss
or damage incurred by any of them if the amount received by the Note
Trustee or the relevant Noteholders in respect of the Issuer Notes is
less than the amount that would have been received had Individual Note
Certificates been issued in accordance with Clause 3.4 (Form of
Individual Note Certificates). If and for so long as the Master Issuer
discharges its obligations under this indemnity, the breach by the
Master Issuer of the provisions of Clause 3.4 (Form of Individual Note
Certificates) shall be deemed to be cured ab initio.
9
4. Covenant of Compliance
4.1 Covenant: The Master Issuer covenants with the Note Trustee that it will
comply with and perform and observe all the provisions of these
presents, the Issuer Deed of Charge, the Issuer Paying Agent and Agent
Bank Agreement, any documents executed pursuant thereto and the other
Issuer Transaction Documents (as each such documents may be amended,
varied, supplemented or updated from time to time). The Issuer
Conditions shall be binding on the Master Issuer, the Noteholders, the
Note Trustee and all persons claiming through or under any of them. Each
Series and Class of Issuer Notes will be subject to the provisions of
these presents, all of which shall be binding on the Master Issuer, the
Noteholders, the Note Trustee and all persons claiming through or under
any of them.
4.2 On trust: The Note Trustee shall hold the benefit of the covenants
contained in this Clause 4 (Covenant of Compliance) upon trust for
itself and the Noteholders according to its and their respective
interests.
5. Covenants by the Master Issuer
The Master Issuer hereby covenants with the Note Trustee that, so long
as any of the Issuer Notes of any Series 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 Master Issuer to be prepared and
allow the Note Trustee and any person appointed by the Note
Trustee free access to such books of account and records at all
reasonable times during normal business hours;
(b) Accounts for Stock Exchange: cause to be prepared and certified by
the Auditors of the Master Issuer in respect of each Financial
Year, accounts in such form as will comply with all relevant legal
and accounting requirements and all requirements for the time
being of any stock exchange, competent listing authority and/or
quotation system on which the Issuer Notes of any Series are
listed, quoted and/or traded;
(c) Noteholder Information: send to the Note Trustee two copies of
every balance sheet, profit and loss account, report, circular and
notice of general meeting and every other document issued or sent
to its shareholders or holders of securities other than its
shareholders (including the Noteholders) (or any class of them) as
soon as practicable after the issue or publication thereof;
(d) Information: so far as permitted by applicable law, give or
procure to be given to the Note Trustee such opinions,
certificates, information and evidence as it shall require and in
such form as it shall require, including without limitation the
procurement by the Master Issuer of all such certificates called
for by the Note Trustee pursuant to these presents or for the
purpose of the discharge or exercise of the duties, trusts,
powers, authorities and any discretion vested in it under these
presents or by operation of law;
(e) Notice of Note Event of Default: give notice in writing to the
Note Trustee forthwith upon becoming aware of the occurrence of
any Note Event of
10
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 Master Issuer is taking or proposes
to take with respect thereto, and without waiting for the Note
Trustee to take any action;
(f) Certificates Relating to Financial Information: give to the Note
Trustee (a) within 14 days after demand by the Note Trustee
therefor and (b) (without the necessity for any such demand)
promptly after the publication of its audited accounts in respect
of each Financial Year commencing with the Financial Year first
ending after the date hereof and in any event not later than 180
days after the end of each such Financial Year a certificate
signed by two directors of the Master Issuer to the effect that as
at a date not more than seven days prior to the date of such
certificate (the "certification date") there did not exist and had
not existed since the certification date of the previous
certificate (or in the case of the first such certificate the date
hereof) any Note Event of Default or Potential Note of Event of
Default (or if such exists or existed specifying the same) and
that during the period from and including the certification date
of the last such certificate (or in the case of the first such
certificate the date hereof) to and including the certification
date of such certificate the Master Issuer has complied with all
its obligations contained in these presents and each of the Issuer
Transaction Documents to which it is a party or (if such is not
the case) specifying the respects in which it has not so complied;
(g) Notice of Deferral of Payments: as soon as practicable after
becoming aware that any part of a payment of interest on the
Issuer Notes will be deferred or that a payment previously
deferred will be made in accordance with Condition 4 (Interest),
give notice thereof to the Noteholders in accordance with the
Issuer Conditions and, for so long as the Issuer Notes are listed
on the Official List of the UK Listing Authority and admitted to
trading by the London Stock Exchange and/or such other exchange(s)
or securities market(s) upon which the Issuer Notes may become
listed, to the UK Listing Authority and to the London Stock
Exchange and/or such other exchange(s) or securities market(s);
(h) Further Assurances: so far as permitted by applicable law, at all
times execute and do all such further documents, acts and things
as may be necessary at any time or times in the opinion of the
Note Trustee to give effect to these presents and the other Issuer
Transaction Documents;
(i) Agent Bank, Reference Banks etc.: at all times maintain an Agent
Bank, four Reference Banks, a Paying Agent, a Transfer Agent and a
Registrar in accordance with the Issuer Conditions;
(j) Notification of Non-Payment: procure that any Paying Agent notify
the Note Trustee forthwith in the event that (i) such Paying Agent
does not, on or before any Payment Date or due date, as the case
may be, for any payment in respect of any of the Issuer Notes,
receive unconditionally pursuant to the Issuer Paying Agent and
Agent Bank Agreement the full amount in the requisite currency of
the monies payable on such Payment Date or due date, as the case
may be, on all such Issuer Notes, or (ii) there are insufficient
funds in the applicable currency available to the relevant Paying
Agent to discharge the
11
amount of the monies payable on such Payment Date or due date, as
the case may be;
(k) Notification of Late Payment: in the event of the unconditional
payment to the Paying Agents or the Note Trustee of any sum due in
respect of any of the Issuer Notes or any of them being made after
the due date for payment thereof, forthwith give or procure to be
given notice to the relevant Noteholders in accordance with the
Issuer Conditions that such payment has been made;
(l) Listing and Admission to Trading: use reasonable endeavours to
maintain the listing of the Issuer Notes on the Official List of
the UK Listing Authority and their admission to trading by the
London Stock Exchange or, if it is unable to do so having used
reasonable endeavours, use reasonable endeavours to obtain and
maintain a quotation or listing of the Issuer Notes on such other
stock exchange or exchanges or securities market or markets as the
Master Issuer may decide (with the prior written approval of the
Note Trustee) and shall also upon obtaining a quotation or listing
of the Issuer Notes on such other stock exchange or exchanges or
securities market or markets enter into a trust deed supplemental
to these presents to effect such consequential amendments to these
presents as the Note Trustee may require or as shall be requisite
to comply with the requirements of any such stock exchange or
securities market;
(m) Change of Agents, etc.: subject to the Issuer Paying Agent and
Agent Bank Agreement, give notice to the Noteholders in accordance
with the Issuer Conditions of any appointment, resignation or
removal of any Agent Bank, Paying Agent, Transfer Agent or
Registrar (other than the appointment of the initial Agent Bank,
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 Issuer Notes remains outstanding, in the case
of the termination of the appointment of the Agent Bank, the
Transfer Agent or the Registrar, or so long as any of the Issuer
Notes remains liable to prescription, in the case of the
termination of the appointment of the Principal Paying Agent, no
such termination shall take effect until a new Agent Bank,
Transfer Agent, Registrar or Principal Paying Agent (as the case
may be) has been appointed on terms previously approved in writing
by the Note Trustee;
(n) Pre-Approval of Notices: obtain the prior written approval of the
Note Trustee to, and upon publication promptly give to the Note
Trustee and the Rating Agencies two copies of, every notice given
to the Noteholders in accordance with the Issuer Conditions (such
approval, unless so expressed, not to constitute approval for the
purposes of Section 21 of the Financial Services and Markets 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
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Paying Agents or otherwise such documents as may be required by
the Noteholders in connection with Meetings (as defined in
Schedule 4);
(p) Compliance with Issuer Paying Agent and Agent Bank Agreement: (A)
observe and comply with its obligations and use its reasonable
endeavours to procure that the Agent Bank, the Paying Agents, the
Transfer Agent and the Registrar comply with and perform all their
respective obligations under the Issuer Paying Agent and Agent
Bank Agreement and any notice given by the Note Trustee pursuant
to Clause 2.5(a) and not make any amendment or modification to
such agreement or agree to waive or authorise any breach thereof
without the prior written approval of the Note Trustee and notify
the Note Trustee forthwith upon becoming aware of any breach by
any of the Agent Bank, the Paying Agents, the Transfer Agent
and/or the Registrar, and (B) ensure that each Paying Agent under
the Issuer Paying Agent and Agent Bank Agreement agrees in writing
to (1) hold funds received by such Paying Agent for the payment of
any sums due in respect of any Issuer Notes for the relevant
Noteholders or the Note Trustee in trust to the extent required by
Section 317(b) of the Trust Indenture Act, and (2) notify the Note
Trustee of any default by the Master Issuer in making any such
payment;
(q) Compliance with Issuer Transaction Documents: observe and comply
with its obligations and use its reasonable endeavours to procure
that each other party to any of the Issuer Transaction Documents
complies with and performs all its respective obligations under
any Issuer Transaction Document and not make any amendment or
modification to such agreement or agree to waive or authorise any
breach thereof without the prior written approval of the Note
Trustee and notify the Note Trustee forthwith upon becoming aware
of any breach by such other party to any Issuer Transaction
Document;
(r) Individual Note Certificates: notify the Note Trustee upon the
occurrence of any of the events referred to in Clause 3.3
(Individual Note Certificates) and shall promptly give notice
thereto and of its obligations to issue Individual Note
Certificates to the Noteholders in accordance with Condition 14
(Notice to Noteholders);
(s) Exercise of Redemption Rights: subject to paragraph (t) below, in
the event that any notice of prepayment of any Loan Tranche is
given under Clause 9 (Prepayment) of the Global Intercompany Loan
Agreement, the Issuer shall exercise its right to redeem the
related Series and Class of Issuer Notes on the same Payment Date
under Condition 5(D) (Optional Redemption in Full), Condition 5(E)
(Optional Redemption for Tax and other Reasons) or, as applicable,
Condition 5(F) (Optional Redemption for Implementation of Capital
Requirements Directive);
(t) Redemption Requirements: not redeem or, as the case may be, give
notice of redemption to Noteholders of all or any part of a class
or classes of Issuer Notes pursuant to Condition 5[(D)] (Optional
Redemption in Full), 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
13
Condition 5(E) (Optional Redemption for Tax and other Reasons) or,
as applicable, Condition 5(F) (Optional Redemption for
Implementation of Capital Requirements Directive);
(u) United States Reporting Requirements: file with the Note Trustee
copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which
the Master Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act within 15 days after it
files them with the SEC and comply with the other provisions of
Section 314(a) of the Trust Indenture Act;
(v) Interest in Issuer Charged Property: ensure that, save as
permitted in these presents, the Issuer Deed of Charge and the
other Issuer Transaction Documents, no person other than the
Master Issuer and the Issuer Security Trustee shall have any
equitable or beneficial interest in the Issuer Charged Property;
(w) Maintenance of Issuer Cash Manager: ensure that there is at all
times a cash manager appointed in accordance with the provisions
of the Issuer Cash Management Agreement;
(x) Tax Deduction: take reasonable steps to ensure that it does not
engage in any course of conduct that would lead to a deduction,
for United Kingdom corporation tax purposes, in respect of accrued
interest or discount on the Issuer Notes by the Master Issuer
being denied, postponed or 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 States as determined under United
States income tax principles, and will not (and will use its best
efforts to procure that any affiliate of the Master Issuer,
including Funding 2, will not) take any position that would
contradict the treatment of the Issuer Notes as indebtedness for
United States federal income tax purposes;
(z) Issuer Pre-Enforcement Priority of Payments: prior to any
enforcement of the security created under the Issuer Deed of
Charge, ensure that amounts standing to the credit of the Issuer
Transaction Account on a Monthly Payment Date will be applied by
the Master Issuer in or towards satisfaction of such of the
obligations set out in the Issuer Pre-Enforcement Revenue Priority
of Payments or the Issuer Pre-Enforcement Principal Priority of
Payments, as applicable, 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
14
priority which are also due and payable or, where relevant, are
likely to fall due at that time or prior to the next succeeding
Monthly Payment Date have been made or provided for in full);
(aa) Availability of Information: make available for inspection by
Noteholders at the Specified Office of the Principal Paying Agent
during normal business hours on any London Business Day copies of
each balance sheet and profit and loss account sent to the Note
Trustee pursuant to these presents, the Issuer Paying Agent and
Agent Bank Agreement and the other Issuer Transaction Documents;
(bb) Ratings: furnish, or procure that there is furnished, from time to
time, any and all documents, instruments, information and
undertakings that may be reasonably necessary in order to maintain
the current ratings of the Issuer Notes by the Rating Agencies
(save that when any such document, instrument, information and/or
undertaking is not within the possession or control of the Master
Issuer, the Master Issuer agrees to use its reasonable efforts to
furnish, or procure that there is furnished, from time to time any
such documents, instruments, information and undertakings as may
be reasonably necessary in order to maintain the current ratings
of the Issuer Notes by the Rating Agencies);
(cc) Calculations: procure that there are done on its behalf, all
calculations required pursuant to the Issuer Conditions;
(dd) DTC, Euroclear and Clearstream, Luxembourg: use its reasonable
endeavours to procure that DTC, Euroclear and/or Clearstream,
Luxembourg (as the case may be) issue(s) any certificate or other
document requested by the Note Trustee acting reasonably pursuant
to these presents as soon as practicable after such request;
(ee) Information Regarding Noteholders: pursuant to Section 312(a) of
the Trust Indenture Act, furnish or cause to be furnished to the
Note Trustee on 31 [o] March and 30 [o] of each year, commencing
31 [o], and at such other times as the Note Trustee may request in
writing, all information in the possession or control of the
Master Issuer or of any of its Paying Agents as to the names and
addresses of the Noteholders, and requiring the Note Trustee to
preserve, in as current a form as is reasonably practicable, all
such information so furnished to it;
(ff) Officers' Certificates and Opinions of Counsel; Statements to be
Contained Therein: upon any application, demand or request by the
Master Issuer to the Note Trustee to take any action under any of
the provisions of these presents (other than the issuance of
Issuer Notes) and upon request of the Note Trustee, furnish to the
Note Trustee an officers' certificate and opinion of counsel
complying with the provisions of Section 314 of the Trust
Indenture Act (an "Officers' Certificate" and "Opinion of
Counsel", respectively);
(gg) Protection of Security: promptly after the execution and delivery
of these presents and each supplement hereto, pursuant to Section
314(b) of the Trust Indenture Act furnish to the Note Trustee an
Opinion of Counsel stating that in
15
the opinion of such counsel, appropriate steps have been taken to
protect the security interests of the Issuer Security Trustee in
the Issuer Charged Property under the Issuer Deed of Charge and
reciting the details of such action, or stating that in the
opinion of such counsel no such action is necessary; and the
Master Issuer shall furnish annually to the Note Trustee, not more
than three (3) months after the anniversary of the signing of this
Deed, commencing with calendar year 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 Issuer Charged
Property under the Issuer Deed of Charge and reciting the details
of such action or (ii) no such action is necessary for any of such
purposes;
(hh) Authorised Signatories: upon the execution of this Deed and
thereafter forthwith upon any change of the same, deliver to the
Note Trustee (with a copy to the Principal Paying Agent and the
Registrar) a list of the Authorised Signatories of the Master
Issuer, together with certified specimen signatures of the same;
and
(ii) Issuer Notes: in order to enable the Note Trustee to ascertain the
number and amount of Issuer Notes of any Series and Class for the
time being outstanding for any of the purposes referred to in the
proviso to the definition of "outstanding" contained in Clause
1.6, deliver to the Note Trustee forthwith upon being so requested
in writing by the Note Trustee a certificate in writing signed by
two directors of the Master Issuer setting out the total number
and the principal amount of such Issuer Notes, if any, which are
at the date of such certificate beneficially held by, or for the
benefit of, or on behalf of, the Master Issuer, any of its
subsidiaries or affiliates, any holding company of the Master
Issuer or any other subsidiary or affiliate of any such holding
company.
6. Enforcement
6.1 Proceedings: The Note Trustee may, at its discretion and without notice
at any time and from time to time, take such steps and institute such
proceedings against the Master Issuer or any other person as it may
think fit to enforce the obligations of the Master Issuer under these
presents and/or any of the other Issuer Transaction Documents to which
the Master Issuer is a party but it shall not be bound to take such
action save as provided in Clause 7 (Proceedings, Actions and
Indemnification).
6.2 Instruction of Issuer Security Trustee: The Note Trustee may, at its
discretion and without notice, and subject to the provisions of the
Issuer Deed of Charge:
(a) direct the Issuer Security Trustee in the exercise of certain
other of the Issuer Security Trustee's rights, benefits, powers,
trusts, authorities and discretions under the Transaction
Documents; and
(b) at any time after the Issuer Security has become enforceable,
instruct the Issuer Security Trustee to take such steps as it may
think fit to enforce the Issuer Security,
16
but it shall not be bound to give such directions or instructions save
as provided in Clause 7 (Proceedings, Actions and Indemnification). The
Noteholders shall (subject to Clause 7.1) have the exclusive right,
power and authority to direct the Note Trustee to direct the Issuer
Security Trustee to (i) enforce the issuer Security and/or (ii) direct
the Funding 2 Security Trustee to enforce the Funding 2 Security, in
each case when such security has become enforceable.
6.3 Exercise of Powers: The Note Trustee shall be entitled to enforce the
obligations of the Master Issuer under any Series and Class of Issuer
Notes of any Series (including the Issuer Conditions) and to exercise
any other rights, powers, authorities and any discretion conferred upon
the Note Trustee in the Issuer Conditions as scheduled to this Trust
Deed, which shall be read and construed as one document with the Issuer
Notes.
6.4 Evidence of Default: Unless the contrary be proved, proof that as
regards any specified Issuer Note the Master Issuer has made default in
paying any amount due in respect of such Issuer Note shall be sufficient
evidence that the Master Issuer has made the like default as regards all
other Issuer Notes in respect of which the corresponding amount is then
due and payable in accordance with the Issuer Conditions and the
provisions of the applicable Pricing Supplement to such Issuer Note and
for the purposes of this Clause 6.4 (Evidence of Default) an amount
shall be a corresponding amount notwithstanding that it is due in
respect of an Issuer Note of a different denomination from that in
respect of the above specified Issuer Note. The Note Trustee may file
such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Note Trustee and the
Noteholders allowed in any judicial proceedings relative to the Master
Issuer, its creditors or its property.
7. Proceedings, Actions and Indemnification
7.1 Note Trustee not bound to act: The Note Trustee shall not be bound:
(a) to take any action under this Deed or any other Issuer Transaction
Document (including taking any steps or proceedings mentioned in
Clause 6.1 (Proceedings), instructing the Issuer Security Trustee
under Clause 6.2 (Instruction of Issuer Security Trustee) or
exercising any powers under Clause 6.3 (Exercise of Powers))
unless:
(i) it shall have been so directed by an Extraordinary
Resolution (any such resolution in respect of enforcement
action under Condition 9 or Condition 10 being a Programme
Resolution) of the Class A Noteholders, the Class B
Noteholders, the Class M Noteholders, the Class C
Noteholders or the Class D Noteholders as appropriate; or
(ii) it shall have been so requested in writing by the holders of
at least one quarter in aggregate Principal Amount
Outstanding of the Class A Notes of all Series, the Class B
Notes all of Series, the Class M Notes of all Series, the
Class C Notes of all Series or the Class D Notes of all
Series then outstanding, and
17
in either case it shall have been indemnified and/or secured
to its satisfaction against all Liabilities to which it may
thereby become liable or which may be incurred by it in
connection therewith, provided that:
(A) the Note Trustee shall not be held liable for the
consequence of taking any such action and may take
such action without having regard to the effect of
such action on individual Noteholders;
(B) the Note Trustee shall not, and shall not be bound to,
act at the direction of the Class B Noteholders as
aforesaid unless either to do so would not in its
opinion be materially prejudicial to the interests of
the Class A Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class A
Noteholders; or
(C) the Note Trustee shall not, and shall not be bound to,
act at the direction of the Class M Noteholders as
aforesaid unless:
(i) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class A
Noteholders; and
(ii) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class B
Noteholders;
(D) the Note Trustee shall not, and shall not be bound to,
act at the direction of the Class C Noteholders as
aforesaid unless:
(i) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class A
Noteholders;
(ii) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class B
Noteholders; and
(iii) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class M Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class M
Noteholders.
(E) shall not, and shall not be bound to, act at the
direction of the Class D Noteholders as aforesaid
unless:
(i) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class A Noteholders or
18
such action is sanctioned by an Extraordinary
Resolution of the Class A Noteholders;
(ii) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class B
Noteholders;
(iii) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class M Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class M
Noteholders; and
(iv) either to do so would not in its opinion be
materially prejudicial to the interests of the
Class C Noteholders or such action is sanctioned
by an Extraordinary Resolution of the Class C
Noteholders.
7.2 Only Note Trustee to Enforce: Only the Note Trustee may enforce the
provisions of these presents. No Noteholder shall be entitled to proceed
directly against the Issuer or any other party to any of the Transaction
Documents unless the Note Trustee having become bound as aforesaid to
institute proceedings has failed to do so within 30 days of becoming so
bound and such failure is continuing; provided that save to the extent
provided in the Issuer Conditions, no Class B Noteholder, no Class M
Noteholder, no Class C Noteholder and no Class D Noteholder, in each
case, of any Series, shall be entitled to take proceedings for the
winding up or administration of the Issuer unless there are no
outstanding Issuer Notes (of that Series or of any other Series) of a
class with higher priority, or if Issuer Notes of a class with higher
priority are outstanding, there is consent of Noteholders of not less
than one quarter of the aggregate principal amount of the Issuer Notes
outstanding of the class or classes of Issuer Notes with higher
priority. Notwithstanding the foregoing and notwithstanding any other
provision of these presents, consistent with Section 316 of the Trust
Indenture Act, the right of each Noteholder to receive principal and/or
interest on its Issuer Notes on or after the due date for payment of
such principal or interest in accordance with the Issuer Conditions or
to institute suit for the enforcement of the payment of that principal
and/or interest may not be impaired or affected without the consent of
the such Noteholder. Notwithstanding anything herein to the contrary any
action to be taken under Section 316(a) of the Trust Indenture Act shall
comply with Section 316(c) of the Trust Indenture Act and the record
date for the purpose of Section 316(c) shall be such date as the Issuer
shall notify to the relevant Noteholders in accordance with the Issuer
Conditions.
8. Application of Moneys etc.
8.1 Application of Moneys: All moneys received by the Note Trustee in
respect of any Series and Class of Issuer Notes or amounts payable under
these presents will (including any moneys which represent principal or
interest in respect of any Series and Class of Issuer Notes which have
become void under the Issuer Conditions and the relevant Pricing
Supplement) be held by the Note Trustee on trust to apply them (subject
to Clause 8.3 (Authorised Investments)) in accordance with the Issuer
Priority of Payments.
19
8.2 Investment of Moneys: If the amount of the moneys at any time available
for payment of principal and interest in respect of any Series and Class
of Issuer Notes under Clause 8.1 (Application of Moneys) shall be less
than a sum sufficient to pay at least one-tenth of the principal amount
of such Issuer Notes then outstanding, the Note Trustee may, at its
discretion, invest such moneys upon some or one of the investments
hereinafter authorised with power from time to time, with like
discretion, to vary such investments; and such investment with the
resulting income thereof may be accumulated until the accumulations
together with any other funds for the time being under the control of
the Note Trustee and available for the purpose shall amount to a sum
sufficient to pay at least one-tenth of the principal amount of such
Issuer Notes then outstanding and such accumulation and funds (after
deduction of any taxes and any other deductibles applicable thereto)
shall then be applied in the manner aforesaid.
8.3 Authorised Investments: Any moneys which under the trusts herein
contained may be invested by the Note Trustee may be invested in the
name or under the control of the Note Trustee in any Authorised
Investments and the Note Trustee may at any time vary or transfer any of
such Authorised Investments for or into other such Authorised
Investments as the Note Trustee in its absolute discretion may
determine, and shall not be responsible 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. If a bank or institution with
which any monies placed on deposit in accordance with this clause is the
Note Trustee or a subsidiary, holding or associated company of the Note
Trustee, it need only account for an amount of interest equal to the
amount of interest which would, at then current rates, be payable by it
on such a deposit to an independent customer.
8.4 Payment to Noteholders: Any payment to be made in respect of any Series
and Class of Issuer Notes by the Issuer or the Note Trustee may be made
in the manner provided in the Issuer Conditions and any payment so made
shall be a good discharge, to the extent of such payment, to the Master
Issuer or the Note Trustee, as the case may be.
8.5 Production of Note Certificates: Upon any payment under Clause 8.4
(Payment to Noteholders) of principal or interest, the Note Certificate
representing the relevant Issuer Note in respect of which such payment
is made shall, if the Note Trustee so requires, be produced to the Note
Trustee or the Paying Agent by or through whom such payment is made and
the Note Trustee shall, in the case of part payment, require the
Registrar to make a notation in the Register of the amount and date of
payment thereon or, in the case of payment in full, shall cause such
Note Certificate to be surrendered or shall cancel or procure the same
to be cancelled and shall certify or procure the certification of such
cancellation, in each case subject to and in accordance with the Issuer
Paying Agent and Agent Bank Agreement.
9. Remuneration and Indemnification of Note Trustee
9.1 Normal Remuneration: The Master Issuer shall (subject as hereinafter
provided) pay to the Note Trustee remuneration of such amount as shall
from time to time be agreed by the Master Issuer and the Note Trustee.
The rate of remuneration in force from time to time may upon an issue of
a Series of Issuer Notes hereunder be increased or upon the final
redemption of the whole of the Issuer Notes of any Series be reduced, in
each case by such amount as shall be agreed between the Master Issuer
and the
20
Note Trustee, such reduced remuneration to be calculated from such date
as shall be agreed as aforesaid. Such remuneration shall be payable in
priority to payments to Noteholders and other Issuer Secured Creditors
on each Payment Date subject to and in accordance with the relevant
Issuer Priority of Payments. Such remuneration shall accrue from day to
day and be payable up to and including the date when, all the Issuer
Notes having become due for redemption, the redemption monies and
interest thereon to the date of redemption have been paid to the
Principal Paying Agent or, as the case may be, the Note Trustee PROVIDED
THAT if upon due presentation of any Note Certificate or any cheque
payment of the monies due in respect thereof is improperly withheld or
refused, remuneration will commence again to accrue until payment to
Noteholders is made.
9.2 Extra Remuneration: In the event of the occurrence of a Potential Note
Event of Default or a Note Event of Default or the Note Trustee
considering it expedient or necessary or being requested by the Master
Issuer to undertake duties which the Note Trustee and the Master Issuer
agree to be of an exceptional nature or otherwise outside the scope of
the normal duties of the Note Trustee under these presents, the Master
Issuer shall pay to the Note Trustee such additional remuneration as
shall be agreed between them;
9.3 Failure to Agree: In the event of the Note Trustee and the Master Issuer
failing to agree:
(a) (in a case to which Clause 9.1 (Normal Remuneration) applies) upon
normal remuneration; or
(b) (in a case to which Clause 9.2 (Extra Remuneration) applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee under
these presents, or upon such additional remuneration;
such matters shall be determined by an investment bank (acting as an
expert and not as an arbitrator) selected by the Note Trustee and
approved by the Master Issuer or, failing such approval, nominated (on
the application of the Note Trustee) by the President for the time being
of The Law Society of England and Wales (the expenses involved in such
nomination and the fees of such investment bank being payable by the
Master Issuer) and the determination of any such investment bank shall
be final and binding upon the Note Trustee and the Master Issuer.
9.4 Expenses: In addition to the remuneration hereunder, the Master Issuer
shall on written request, pay all other Liabilities (against production
of invoices) which the Note Trustee may properly incur in relation to:
(a) the negotiation, preparation and execution of, and the exercise of
its powers and discretions and the performance of its duties
under, these presents and any other Issuer Transaction Document
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 Master Issuer under or resolving
any doubt in respect of these presents and/or any of the other
Issuer Transaction Documents.
21
9.5 Indemnity: The Master Issuer shall indemnify the Note Trustee in respect
of all Liabilities to which it (or any person appointed by it to whom
any trust, power, authority or discretion may be delegated by it in the
execution or purported execution of the trusts, powers, authorities or
any discretion vested in it by or pursuant to these presents and any of
the other Issuer Transaction Documents) may be or become liable or which
may be properly incurred by it (or any such person as aforesaid) in the
execution or purported execution of any of its trusts, powers,
authorities and any discretion hereunder or its functions under any such
appointment or in respect of any other matter or thing done or omitted
in any way relating to these presents and any of the other Issuer
Transaction Documents provided that it is expressly stated that Clause
10.12 (Note Trustee Liable for Negligence etc.) shall apply in relation
to these provisions.
9.6 Stamp Duties: The Master Issuer shall, pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of
doubt any duty levied under the Stamp Act 1891 as amended and
supplemented, (if any) payable in Luxembourg, Belgium, the United
Kingdom and/or Jersey on or arising out of or in consequence of:
(a) the execution and delivery of these presents and any other Issuer
Transaction Document to which the Note Trustee is a party;
(b) the constitution and issue of the Issuer Notes;
(c) the initial delivery of the Note Certificates representing the
Issuer Notes; and
(d) any action in any jurisdiction taken by or on behalf of the Note
Trustee. If the Note Trustee (or any Noteholder or Issuer Secured
Creditor) where permitted under these presents so to do) shall
take any proceedings against the Master Issuer in any other
jurisdiction and if for the purpose of any such proceedings these
presents or any Note Certificates are taken into any such
jurisdiction and any stamp duties or other duties or taxes become
payable thereon in any such jurisdiction, the Master Issuer will
pay (or reimburse the person making payment of) such stamp duties
or other duties or taxes (including penalties).
9.7 VAT: The Master Issuer shall in addition pay to the Note Trustee an
amount equal to any value added tax or similar tax chargeable in respect
of its remuneration under these presents.
9.8 Interest: Subject as provided in Clause 9.9 (Payment), all sums payable
by the Master Issuer under this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall be payable on demand or, in the
case of any remuneration payable under Clause 9.1 (Normal Remuneration)
on the due date specified therein and shall carry interest at the rate
of 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.
22
9.9 Payment: Notwithstanding the other provisions of this Deed, any amount
owing by the Master Issuer pursuant to this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall only be payable by the Master
Issuer subject to and in accordance with the applicable Issuer Priority
of Payments which applies at such time.
9.10 Apportionment: The Note Trustee shall be entitled in its absolute
discretion to determine in respect of which Series and Class of Issuer
Notes any Liabilities incurred under these presents have been incurred
or to allocate such costs, charges, expenses or liabilities between two
or more Series and Classes of Issuer Notes.
9.11 Survival: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 9 (Remuneration and Indemnification
of Note Trustee) shall continue in full force and effect notwithstanding
such discharge.
10. Supplement to the Trustee Acts
10.1 Trustee Acts: The Note Trustee shall have all the powers conferred upon
trustees by the Trustee Acts 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 Issuer
Transaction Documents act and rely upon the opinion or advice of,
or a certificate or a report or any information (whether addressed
to the Note Trustee or not) obtained from, any lawyer, banker,
valuer, surveyor, securities company, broker, auctioneer,
accountant or other expert in the United Kingdom or elsewhere,
whether obtained by the Master Issuer, the Note Trustee or
otherwise, whether or not any of the aforesaid or any engagement
letter or other document entered into by the Note Trustee and the
relevant person in connection therewith contains any monetary or
other limit on the liability of the relevant person and the Note
Trustee shall not be responsible for any loss occasioned by so
acting or relying on. Any such opinion, advice, certificate or
information may be sent or obtained by letter, facsimile
reproduction or in any other form and the Note Trustee shall not
be liable for acting in good faith on any opinion, advice,
certificate or information purporting to be so conveyed although
the same shall contain some error or shall not be authentic.
(b) The Note Trustee may call for and shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of the
Master Issuer or any other person in respect of every matter and
circumstance for which a certificate is expressly provided for
under these presents or any other Issuer Transaction Document and
to call for and rely upon a certificate of the Agent Bank, any
Paying Agent, Registrar, Transfer Agent, any Reference Bank or any
other person reasonably believed by it to be genuine as to any
other fact or matter prima facie within the knowledge of such
Agent Bank, Paying Agent, Registrar, Transfer Agent, Reference
Bank or such other person as sufficient evidence thereof and the
Note Trustee shall not be bound in any such case to
23
call for further evidence or be responsible for any Liability or
inconvenience that may be caused by it failing to do so.
10.3 Powers and Duties:
(a) The Note Trustee shall not have any responsibility for, or have
any duty to, make any investigation in respect of, or in any way
be liable whatsoever for, the nature, status, creditworthiness or
solvency of the Master Issuer. Each Noteholder and each other
Issuer Secured Creditor shall be solely responsible for making its
own independent appraisal of and investigation into the financial
condition, creditworthiness, affairs, status and nature of the
Master Issuer and the Note Trustee shall not at any time have any
responsibility for the same and each Noteholder and each other
Issuer Secured Creditor 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 Issuer Transaction Document or
any other document entered into in connection therewith or any
security thereby constituted or purported to be constituted
thereby nor shall it be responsible or liable to any person
because of any invalidity of any provision of such documents or
the unenforceability thereof, whether arising from statute, law or
decision of any court.
(c) The Note Trustee shall not be responsible for the scope or
accuracy of any recitals, statements, warranty, representation or
covenant of any party (other than the Note Trustee) contained
herein or in any other Issuer Transaction Document or any other
document entered into in connection therewith and shall assume the
accuracy and correctness thereof.
(d) The Note Trustee may accept without enquiry, requisition or
objection such title as the Master Issuer may have to the Issuer
Charged Property or as Funding 2 may have to the Funding 2 Charged
Property or any part thereof from time to time and shall not be
required to investigate or make any enquiry into or be liable for
any defect in the title of the Master Issuer to the Issuer Charged
Property or of Funding 2 to the Funding 2 Charged Property or any
part thereof from time to time whether or not any defect was known
to the Note Trustee or might have been discovered upon
examination, inquiry or investigation and whether or not capable
of remedy.
(e) The Note Trustee shall not be bound to give notice to any person
of the execution of these presents or of a Funding 2 Intercompany
Loan Event of Default under the Global Intercompany Loan Agreement
nor shall it have any duty to make any investigation in respect of
or in any way be liable whatsoever for the registration, filing,
protection or perfection of any security constituted by any Issuer
Transaction Document relating to the Issuer Charged Property or
the priority of the security created thereby and shall not be
liable for any failure, omission or defect in perfecting,
protecting, procuring the registration of or further assuring the
security created or purported to be created thereby.
24
(f) The Note Trustee shall not have any duty to make any investigation
in respect of or in any way be liable whatsoever for the failure
to call for delivery of documents of title to or require any
transfers, legal mortgages, charges or other further assurances in
relation to any of the assets the subject matter of any of these
presents or any other document.
(g) The Note Trustee shall be under no obligation to monitor or
supervise and shall not have any duty to make any investigation in
respect of or in any way be liable whatsoever for the performance
or observance by the Master Issuer or any other person of the
provisions of these presents or any other Issuer Transaction
Document and shall be entitled to assume that each person is
properly performing and complying with its obligations.
(h) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be
liable whatsoever for the existence, accuracy or sufficiency of
any legal or other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or required to
be delivered or obtained at any time in connection with the Issuer
Charged Property or any Issuer Transaction Document.
(i) The Note Trustee shall have no responsibility whatsoever to any
Issuer Secured Creditor as regards any deficiency which might
arise because the Note Trustee is subject to any Tax in respect of
the Issuer Charged Property or any part thereof or any income
therefrom or any proceeds thereof or is required by law to make
any withholding or deduction from any payment to any Issuer
Secured Creditor.
(j) The Note Trustee will not be responsible or liable for any
inadequacy or unfitness of any Issuer Charged Property as security
or any decline in value of any loss realised upon any disposition
of the Issuer Charged Property.
(k) The Note Trustee shall not be responsible for, nor shall it have
any liability with respect to, any loss or theft of the Issuer
Charged Property.
(l) The Note Trustee shall not be liable or responsible for any loss,
cost, damage, expense or inconvenience which may result from
anything done or omitted to be done by it under these presents or
under any of the other Issuer Transaction Documents.
(m) The Note Trustee shall not be responsible for the receipt or
application by the Master Issuer of the proceeds of the Issuer
Notes, the exchange of any Global Note Certificate for another
Global Note Certificate or Individual Note Certificates or the
exchange of any Individual Note Certificate for another Individual
Note Certificate or the delivery of any Global Note Certificate or
Individual Note Certificates to the person(s) entitled to it or
them.
(n) The Note Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets of
the trust as the Note Trustee may determine, including for the
purpose of depositing with a custodian this Deed or any other
Issuer Transaction Document and the Note Trustee shall not be
responsible for any loss, liability, expense, demand, cost, claim
or
25
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 Issuer Transaction Document) as
regards all rights, powers, authorities and any discretion vested
in it by these presents or any other Issuer Transaction Document,
or by operation of law, have absolute and uncontrolled discretion
as to the exercise or non-exercise thereof and whenever the Note
Trustee is bound to act at the request or direction of the
Noteholders or any class of them, the Note Trustee shall
nevertheless not be so bound unless first indemnified to its
satisfaction against all Liabilities to which it may render itself
liable and all costs, expenses, damages and liabilities which it
may incur by so doing.
(p) The Note Trustee as between itself and the Noteholders or any
class of them shall have full power to determine all questions and
doubts arising in relation to any of the provisions of these
presents and/or any other Issuer Transaction Document and every
such determination, whether made upon a question actually raised
or implied in the acts or proceedings of the Note Trustee, shall
be conclusive and shall bind the Note Trustee, the Noteholders and
the other Issuer Secured Creditors.
(q) In connection with the exercise by it of any of its trusts,
powers, authorities and any discretion under these presents or any
of the other Issuer Transaction Documents (including without
limitation any power to authorise any amendment or to waive any
breach or to make any determination) the Note Trustee shall except
where expressly provided otherwise, always have regard to all the
Noteholders equally, provided that:
(i) without prejudice to the provisions of sub-paragraph (ii)
below where it is required to have regard to the interests
of the Noteholders, it shall have regard to the interests of
the Noteholders as a class and, in particular but without
prejudice to the generality of the foregoing, shall not have
regard to, or be in any way liable for, the consequences of
any exercise thereof for any individual Noteholder of any
Series and Class of Issuer Notes resulting from their being
domiciled or resident or otherwise connected with or subject
to the jurisdiction of, any particular territory or any
political sub-division thereof and the Note Trustee shall
not be entitled to require, nor shall any Noteholder be
entitled to claim, from the Master Issuer, the Note Trustee
or any other person any indemnification or payment in
respect of any tax consequence of any such exercise upon
individual Noteholders;
(ii) except where expressly provided otherwise:
(A) for so long as there are Class A Notes outstanding (of
any Series), if in the opinion of the Note Trustee
there is a conflict between the interests of the Class
A Noteholders, on the one hand and the interests of
the Class B Noteholders, the Class M Noteholders, the
Class C Noteholders and/or the Class D
26
Noteholders (in each case, of that Series or of any
other Series) on the other hand, the Note Trustee
shall have regard only to the interests of the Class A
Noteholders;
(B) subject to sub-clause (A) above and for so long as
there are Class B Notes outstanding (of any Series),
if in the opinion of the Note Trustee there is a
conflict between the interests of the Class B
Noteholders on the one hand and the interests of the
Class M Noteholders, the Class C Noteholders and/or
the Class D Noteholders (in each case, of that Series
or of any other Series) on the other hand, the Note
Trustee shall have regard only to the interests of the
Class B Noteholders; and
(C) subject to sub-clauses (A) and (B) above and for so
long as there are Class M Notes outstanding (of any
Series), if in the opinion of the Note Trustee there
is a conflict between the interests of the Class M
Noteholders on the one hand and the interests of the
Class C Noteholders and/or the Class D Noteholders (in
each case of that Series or of any other Series) on
the other hand, the Note Trustee shall have regard
only to the interests of the Class M Noteholders; or
(D) subject to sub-clauses (A), (B) and (C) above and for
so long as there are Class C Notes outstanding (of any
Series), if in the opinion of the Note Trustee there
is a conflict between the interests of the Class C
Noteholders on the one hand and the interests of the
Class D Noteholders (in each case of that Series or of
any other Series) on the other hand, the Note Trustee
shall have regard only to the interests of the Class C
Noteholders
but so that this proviso (ii) shall not apply in the case of
powers, authorities or any discretion in relation to which
it is expressly stated that they may be exercised by the
Note Trustee only if in its opinion the interests of all the
Noteholders would not be materially prejudiced thereby; and
(iii) it shall not have regard to, or be in any way liable for,
the consequences of any exercise thereof for any other
Issuer Secured Creditor or any other person.
(r) The Note Trustee may determine whether or not a default in the
performance by the Master Issuer of any obligation under the
provisions of this Deed or any other Issuer Transaction Document
or (by directing the Issuer Security Trustee) a default in the
performance by Funding 2 of any obligation under the Global
Intercompany Loan Agreement is capable of remedy and/or whether
the same is materially prejudicial to the interests of the
Noteholders or any class or classes of them and if the Note
Trustee shall certify that any such default is, in its opinion,
not capable of remedy and/or materially prejudicial to the
interests of the Noteholders or any class or classes of them, such
certificate shall be conclusive and binding upon the Master
Issuer, the Noteholders and the other Issuer Secured Creditors.
27
(s) The Note Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay an agent on any
terms, whether or not a lawyer or other professional person, to
transact or conduct, or concur in transacting or conducting, any
business and to do or concur in doing all acts required to be done
by the Note Trustee (including the receipt and payment of monies).
(t) Any trustee of these presents being a lawyer, accountant, broker
or other person engaged in any profession or business shall be
entitled to charge and be paid all usual professional and other
charges for business transacted and acts done by him or his firm
in connection with the trusts of this Deed and the Issuer
Transaction Documents and also his charges in addition to
disbursements for all other work and business done and all time
spent by him or his firm in connection with matters arising in
connection with this Deed and the Issuer Transaction Documents,
including matters which might or should have been attended to in
person by a trustee not being a banker, lawyer, broker or other
professional person.
(u) The Note Trustee may, in the execution of all or any of the
trusts, powers, authorities and any discretion vested in it by
these presents or any of the other Issuer Transaction Documents,
act by responsible officers or a responsible officer for the time
being of the Note Trustee. The Note Trustee may also, whenever it
thinks expedient in the interests of the Noteholders, whether by
power of attorney or otherwise, delegate to any person or persons
all or any of the trusts, rights, powers, duties, authorities and
any discretion vested in it by these presents or any of the other
Issuer Transaction Documents. Any such delegation may be made upon
such terms and subject to such Issuer Conditions and subject to
such regulations (including power to sub-delegate) as the Note
Trustee may think fit in the interests of the Noteholders. The
Note Trustee shall give notice to the Master Issuer of the
appointment of any delegate as aforesaid as soon as practicable
thereafter and shall procure that the terms of appointment of any
delegate will provide that any delegate shall also give notice of
the appointment of any sub-delegate to the Master Issuer as soon
as practicable thereafter.
(v) 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 Liability 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.
(w) 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
28
mentioned and date so specified shall be binding on the Issuer
Secured Creditors.
(x) Any consent given by the Note Trustee for the purposes of these
presents or any of the other Issuer Transaction Documents may be
given on such terms and subject to such conditions (if any) as the
Note Trustee thinks fit and may be given retrospectively. The Note
Trustee may give any consent or approval, exercise any power,
authority or discretion or take any similar action (whether or not
such consent, approval, power, authority, discretion or action is
specifically referred to in this Deed) if it is satisfied that the
interests of the Noteholders will not be materially prejudiced
thereby. For the avoidance of doubt, the Note Trustee shall not
have any duty to the Noteholders in relation to such matters other
than that which is contained in the preceding sentence.
(y) 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.
(z) The Note Trustee shall not (unless required by law or ordered to
do so by a court of competent jurisdiction) be required to
disclose to any Noteholder of any Series and Class of Issuer Notes
or any other person any information made available to the Note
Trustee by the Master Issuer or any other person in connection
with the trusts of these presents or any other Issuer Transaction
Documents and no Noteholder or any other person shall be entitled
to take any action to obtain from the Note Trustee any such
information. The Note Trustee shall not be responsible for
exercising the rights of any of the parties under the Issuer
Transaction Documents or considering the basis upon which the
approvals or consents are granted by any of the parties under the
Issuer Transaction Documents.
(aa) Notwithstanding anything else in these presents, the Issuer Notes
or any other Issuer Transaction Document, the Note Trustee may
refrain from doing anything which would or might in its opinion be
contrary to any law of any jurisdiction or any directive or
regulation of any governmental agency or which would or might
otherwise render it liable to any person and may do anything which
is, in its opinion, necessary to comply with any such law,
directive or regulation.
(bb) The Note Trustee shall not be liable to any person by reason of
having acted upon an Extraordinary Resolution in writing or any
Extraordinary Resolution or other resolution whether in writing or
purporting to have been passed at any Meeting of all or any Series
and Class of Issuer Notes in respect whereof minutes have been
made and signed or any direction or request of Noteholders 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 or any direction or request) it was
not signed by the requisite number of Noteholders or that for any
reason the resolution, direction or request was not valid or
binding upon such Noteholders.
29
(cc) Without prejudice to the right of the Note Trustee to require
and/or accept any other evidence, the Note Trustee may accept as
conclusive evidence of any fact or matter in relation to the
Master Issuer or required to be certified by the Master Issuer
under the Issuer Conditions, a certificate signed by two directors
of the Master Issuer and the Note Trustee shall not be bound in
any such case to call for further evidence or be responsible for
any liability that may be occasioned by it or any other person
acting on such certificate.
(dd) 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.
(ee) The Note Trustee shall not be liable to the Master Issuer or any
Noteholder by reason of having accepted as valid or not having
rejected any entry on the Register later found to be forged or not
authentic and can assume for all purposes in relation hereto that
any entry on the Register is correct.
(ff) The Note Trustee, in determining whether the exercise by it of any
power, right, trust, authority, duty or discretion under or in
relation to these presents or any of the other Issuer Transaction
Documents:
(i) will not be materially prejudicial to the interests of the
Class A Noteholders of any Series of Issuer Notes will have
regard (if issued) to confirmations from each of the Rating
Agencies that the then current rating by it of the Class A
Notes of such Series of Issuer Notes would not be reduced,
withdrawn or qualified by such exercise;
(ii) will not be materially prejudicial to the interests of the
Class B Noteholders of any Series of Issuer Notes will have
regard (if issued) to confirmations from each of the Rating
Agencies that the then current rating by it of the Class B
Notes of such Series of Issuer Notes would not be reduced,
withdrawn or qualified by such exercise;
(iii) will not be materially prejudicial to the interests of the
Class M Noteholders of any Series of Issuer Notes will have
regard (if issued) to confirmations from each of the Rating
Agencies that the then current rating by it of the Class M
Notes of such Series of Issuer Notes would not be reduced,
withdrawn or qualified by such exercise;
(iv) will not be materially prejudicial to the interests of Class
C Noteholders of any Series of Issuer Notes will have regard
(if issued) to confirmations from each of the Rating
Agencies that the then current rating by it of the Class C
Notes of such Series of Issuer Notes will not be reduced,
withdrawn or qualified by such exercise; and
(v) will not be materially prejudicial to the interests of the
of Class D Noteholders of any Series of Issuer Notes will
have regard (if issued) to confirmations from each of the
Rating Agencies that the then current rating by it of the
Class D Notes of such Series of Issuer Notes will not be
reduced, withdrawn or qualified by such exercise.
30
In each case, the Note Trustee will also have regard to any
other confirmation or information which it considers, in its
sole discretion, is appropriate.
(gg) The Note Trustee may call for any certificate or other
document to be issued by DTC, Euroclear or Clearstream,
Luxembourg as to the Principal Amount Outstanding of the
Issuer Notes standing to the account of any person. Any such
certificate or other document shall be conclusive and
binding for all purposes. The Note Trustee shall not be
liable to any person by reason of having accepted as valid
or not having rejected any certificate or other document to
such effect purporting to be issued by DTC, Euroclear or
Clearstream, Luxembourg and subsequently found to be forged
or not authentic.
(hh) If required by Section 313(a) of the Trust Indenture Act,
within 60 days after 31st December of any year and
commencing 31 December 2005, 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).
(ii) The Note Trustee shall comply with Trust Indenture Act
Section 311(a), excluding any creditor relationship listed
in Trust Indenture Act Section 311(b). A Note Trustee who
has resigned or been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated
therein. The provisions of Trust Indenture Act Section 311
shall apply to the Master Issuer as the obligor of the
Issuer Notes.
(jj) Subject to Clause 10.8, 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.
(kk) The Note Trustee has no responsibility to verify or monitor
the contents of, or (if applicable) to check any
calculations contained in, any reports, information,
documents, Officers' Certificates and Opinions of Counsel
delivered to the Note Trustee in accordance with paragraphs
(u) (United States Reporting Requirements), (ee)
(Information Regarding Noteholders) or (ff) (Officers'
Certificates and Opinions of Counsel; Statements to be
Contained Therein) of Clause 5 (Covenants by Issuer) or
Clause 16 (Certificates and Opinions), and is under no
obligation to inform Noteholders of the contents of any such
reports, information, documents, Officers' Certificates and
Opinions of Counsel, other than allowing (subject to Clause
10.2(aa)) Noteholders upon reasonable notice, to inspect
such reports, information, documents, Officers' Certificates
and Opinions of Counsel.
(ll) 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.
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(mm) The Note Trustee has no duties or responsibilities except
those expressly set out in this Deed or in the other Issuer
Transaction Documents.
(nn) In the absence of knowledge or express notice to the
contrary, the Note Trustee may assume without enquiry (other
than requesting a certificate of the Master Issuer) that no
Issuer Notes are for the time being held by or for the
benefit of the Master Issuer, or any subsidiary or affiliate
thereof, or any holding company of the Master Issuer or any
other subsidiary or affiliate of any such holding company.
(oo) The Note Trustee may, without the consent of the Master
Issuer or the Noteholders prescribe such regulations
regarding the giving of directions by the Noteholders as
provided in the Issuer Conditions, as the Note Trustee may
in its sole discretion determine.
(pp) Without prejudice to the provisions of any Issuer
Transaction Documents relating to insurance, the Note
Trustee shall not be under any obligation to insure any of
the Issuer Charged Property or the Funding 2 Charged
Property or any deeds or documents of title or other
evidence in respect of the Issuer Charged Property or the
Funding 2 Charged Property or to require any other person to
maintain any such insurance or monitor the adequacy of any
such insurance and shall not be responsible for any
liability which may be suffered by any person as a result of
the lack of or inadequacy of any such insurance.
(qq) The Note Trustee shall have no liability whatsoever for any
loss, cost, damages or expenses directly or indirectly
suffered or incurred by a person as a result of the delivery
by the Note Trustee to the Master Issuer or to any other
party to the Issuer Transaction Documents of a certificate
as to material prejudice pursuant to the Issuer Conditions
or any Issuer Transaction Documents on the basis of an
opinion formed by it in good faith.
(rr) Any corporation into which the Note Trustee shall be merged
or with which it shall be consolidated or any company
resulting from any such merger or consolidation shall be a
party hereto and shall be the Note Trustee under this Deed
without executing or filing any paper or document or any
further act on the part of the parties thereto.
10.4 No Financial Liability: Notwithstanding any other provision of these
presents or of any other Issuer Transaction Document, nothing shall
require the Note Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers or otherwise in connection with
these presents or any other Issuer Transaction Document (including,
without limitation, forming any opinion or employing any legal,
financial or other adviser), if it shall believe that repayment of such
funds or adequate indemnity against such risk or liability is not
assured to it. The Note Trustee shall not be responsible for exercising
the rights of any of the parties under the Issuer Transaction Documents
or considering the basis upon which the approvals or consents are
granted by any of the parties under the Issuer Transaction Documents.
10.5 Ascertaining Default: The Note Trustee shall not be responsible or
liable for:
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(a) exercising any rights or powers which are assigned to it by any
party to the Issuer Transaction Documents, including, without
limitation, any servicing, administration and management functions
in relation to the Mortgage Loans and shall not be liable to any
person for the exercise or non-exercise of any such rights and
powers;
(b) ascertaining whether a default has occurred under the terms of any
of the Issuer Transaction Documents and nor is the Note Trustee
responsible for taking any action in connection with any such
default or alleged default;
10.6 Rating of Issuer Notes: The Note Trustee shall have no
responsibility for the maintenance of any rating of the Issuer
Notes by the Rating Agencies or any other credit-rating agency or
any other person.
10.7 Delivery of Certificates: The Note Trustee shall have no liability
whatsoever for any Liability directly or indirectly suffered or incurred
by the Master Issuer, any Noteholder or any other person as a result of
the delivery by the Note Trustee of a certificate, or the omission by it
to deliver a certificate, to the Master Issuer as to material prejudice,
on the basis of an opinion formed by it in good faith.
10.8 Assumption of No Default: Except to the extent required pursuant to
Section 315(b) of the Trust Indenture Act, the Note Trustee shall not be
bound to ascertain whether any Note Event of Default or Potential Note
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 Note Event of Default or Potential Note Event of
Default has happened and that the Master Issuer is observing and
performing all the obligations on its part under the Issuer Notes and
these presents and no event has happened as a consequence of which any
Issuer Notes may become repayable.
10.9 Assumption of no Intercompany Loan Default: The Note Trustee shall not
be bound to ascertain whether any Funding 2 Intercompany Loan Event of
Default or Potential Funding 2 Intercompany Loan Event of Default has
happened and, until it shall have actual knowledge or express notice to
the contrary, the Note Trustee shall be entitled to assume that no such
Funding 2 Intercompany Loan Event of Default or Potential Funding 2
Intercompany Loan Event of Default has happened and that Funding 2 is
observing and performing all the obligations on its part;
10.10 Commercial Transactions: The Note Trustee shall not, and no director,
officer or employee of any corporation being a Note Trustee hereof shall
by reason of the fiduciary position of the Note Trustee be in any way
precluded from making any commercial contracts or entering into any
commercial transactions with any party to the Issuer Transaction
Documents, whether directly or through any subsidiary or associated
company, or from accepting the trusteeship of any other debenture stock,
debentures or securities of any party to the Issuer Transaction
Documents, and without prejudice to the generality of these provisions,
it is expressly declared that such contracts and transactions include
any contract or transaction in relation to the placing, underwriting,
purchasing, subscribing for or dealing with or lending monies upon or
making payments in respect of or any stock, shares, debenture stock,
debentures or other securities of any party to the Issuer Transaction
Documents or any contract of banking or insurance of any party to the
Issuer Transaction Documents and neither the Note Trustee nor any such
director, officer or employee shall be
33
accountable to any Noteholder or to any party to the Issuer Transaction
Documents for any profit, fees, commissions, interest, discounts or
share of brokerage earned, arising or resulting from any such contracts
or transactions, and the Note Trustee and any such director, officer or
employee shall also be at liberty to retain the same without accounting
therefor.
10.11 Disapplication: Section 1 of the Trustee Act 2000 shall not apply to the
duties of the Note Trustee in relation to the trusts constituted by this
Deed. Where there are any inconsistencies between the Trustee Acts and
the provisions of this Deed, the provisions of this Deed shall, to the
extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee 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 these presents, in compliance with Section 315(d) of the
Trust Indenture Act, none of the provisions of these presents shall, in
any case in which the Note Trustee has failed to show the degree of care
and diligence required of it as trustee under these presents (including
any requirement under the Trust Indenture Act), having regard to the
provisions of these presents conferring on the Note Trustee any powers,
authorities or any discretion, relieve the Note Trustee from or
indemnify the Note Trustee against any liabilities which by virtue of
any rule of law (including any provision of the Trust Indenture Act)
would otherwise attach to it in respect of any gross negligence, wilful
default, breach of duty or breach of trust of which it may be guilty in
relation to its duties under these presents.
11. Modification and Waiver
11.1 Modification: The Note Trustee may without the consent or sanction of
the Noteholders, at any time and from time to time, concur with the
Master Issuer in making any modification (i) to these presents or any of
the other Issuer Transaction Documents, provided that the Note Trustee
is of the opinion that such modification will not be materially
prejudicial to the interests of the holders of any Series and Class of
Issuer Note; or (ii) to these presents, the Issuer Notes or any of the
other Issuer Transaction Documents, if in the opinion of the Note
Trustee such modification is of a formal, minor or technical nature or
to correct a manifest error or error established as such to the
satisfaction of the Note Trustee or to comply with the mandatory
provisions of law; or (iii) by directing the Issuer Security Trustee
pursuant to the Issuer Deed of Charge, to any of the Issuer Transaction
Documents which it may be necessary to make or which are required by the
Rating Agencies in respect of any other Funding 2 Issuer or any other
person who has executed an Accession Undertaking pursuant to Clause 2.11
(New Intercompany Loans) of the Funding 2 Deed of Charge or Clause 2.11
(Accession of New Secured Creditors) of the Issuer Deed of Charge. Any
such modification may be made on such terms and subject to such
conditions (if any) as the Note Trustee may determine, shall be binding
upon the Noteholders and, unless the Note Trustee agrees otherwise,
shall be notified by the Master Issuer to the Noteholders and the Rating
Agencies in accordance with the Issuer Conditions as soon as practicable
thereafter. So long as any of the Issuer Notes are rated by the Rating
Agencies, the Master Issuer shall notify the Rating Agencies in writing
as soon as reasonably practicable thereafter of any modification to the
provisions of these presents, the Issuer Notes or any of the other
Issuer Transaction Documents. The Note Trustee may also agree, without
the consent of the Noteholders,
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to a change of the laws governing the Issuer Notes and/or the Issuer
Transaction Documents provided that such change would not, in the
opinion of the Note Trustee, be materially prejudicial to the interests
of the Noteholders.
11.2 Waiver: Subject as expressly provided otherwise in the Issuer Notes or
in any other Issuer Transaction Document, the Note Trustee may from time
to time and at any time without the consent or sanction of the
Noteholders and without prejudice to its rights in respect of any
subsequent breach, but only if and in so far as in its opinion the
interests of the Noteholders of any Series and Class of Issuer Notes
shall not be materially prejudiced thereby, waive or authorise any
breach or proposed breach by the Master Issuer or any other party
thereto of any of the covenants or provisions contained in these
presents or in any of the other Issuer Transaction Documents or
determine that any Note Event of Default in respect of a Series and
Class of Issuer Notes shall not be treated as such for the purposes of
these presents and the Issuer Notes provided always that the Note
Trustee shall not exercise any powers conferred on it by this Clause in
contravention of any express direction given by an Extraordinary
Resolution, or of a request in writing made by the holders of not less
than one quarter in aggregate principal amount of the relevant Class of
Issuer Notes then outstanding, in accordance with the Issuer Conditions
(but so that no such direction or request shall affect any waiver,
authorisation or determination previously given or made). Any such
waiver, authorisation or determination may be given or made on such
terms and subject to such conditions (if any) as the Note Trustee may
determine, shall be binding on the Noteholders and, if, but only if, the
Note Trustee shall so require, shall be notified by the Master Issuer to
the Noteholders in accordance with the Issuer Conditions as soon as
practicable thereafter. The provisions of this Clause 11.2 (Waivers)
shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from these presents and the Issuer Notes, as permitted by the
Trust Indenture Act.
11.3 Material prejudice: For the avoidance of doubt (in the context of
deciding material prejudice in respect of Clauses 11.1 (Modifications)
and 11.2 (Waiver)), if the Note Trustee considers in its sole opinion
that the Noteholders of a Series and Class of Issuer Notes to which the
modification or waiver relates are materially prejudiced by such
waivers, the Note Trustee will not be able to sanction such modification
or waiver itself, and will instead require an Extraordinary Resolution
of the Noteholders of such Issuer Notes of such Series and Class to be
passed by means of a Meeting. In accordance with the general provision
contained herein:
(a) no Extraordinary Resolution of the Noteholders of any one or more
Series of Class A Notes to sanction a modification of, or any
waiver or authorisation of any breach, or proposed breach of, any
of the provisions of the Issuer Transaction Documents or the
Conditions of such Notes shall take effect unless it has been
sanctioned by an Extraordinary Resolution of the Class B
Noteholders, an Extraordinary Resolution of the Class M
Noteholders, an Extraordinary Resolution of the Class C
Noteholders and an Extraordinary Resolution of the Class D
Noteholders, in each case of each Series, or the Note Trustee is
of the opinion that it would not be materially prejudicial to the
interests of the Class B Noteholders, the Class M Noteholders, the
Class C Noteholders and the Class D Noteholders of each Series.
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(b) after the Class A Notes have been fully redeemed, no Extraordinary
Resolution of the Noteholders of any one or more Series of Class B
Notes to sanction a modification of, or any waiver or
authorisation of any breach, or proposed breach of, any of the
provisions of the Issuer Transaction Documents or the Conditions
of such Notes shall take effect unless it has been sanctioned by
an Extraordinary Resolution of the Class M Noteholders, an
Extraordinary Resolution of the Class C Noteholders and an
Extraordinary Resolution of the Class D Noteholders, in each case
of each Series, or the Note Trustee is of the opinion that it
would not be materially prejudicial to the interests of the Class
M Noteholders, the Class C Noteholders and the Class D Noteholders
of each Series.
(c) after the Class A Notes and Class B Notes have been fully
redeemed, no Extraordinary Resolution of the Noteholders of any
one or more Series of Class M Notes to sanction a modification of,
or any waiver or authorisation of any breach, or proposed breach
of, any of the provisions of the Issuer Transaction Documents or
the Conditions of such Notes shall take effect unless it has been
sanctioned by an Extraordinary Resolution of the Class C
Noteholders and an Extraordinary Resolution of the Class D
Noteholders, in each case of each Series, or the Note Trustee is
of the opinion that it would not be materially prejudicial to the
interests of the Class C Noteholders and the Class D Noteholders
of each Series.
(d) after the Class A Notes, Class B Notes and Class M Notes have been
fully redeemed, no Extraordinary Resolution of the Noteholders of
any one or more Series of Class C Notes to sanction a modification
of, or any waiver or authorisation of any breach, or proposed
breach of, any of the provisions of the Issuer Transaction
Documents or the Conditions of such Notes shall take effect unless
it has been sanctioned by an Extraordinary Resolution of the Class
D Noteholders, in each case of each Series, or the Note Trustee is
of the opinion that it would not be materially prejudicial to the
interests of the Class D Noteholders of each Series., such
Extraordinary Resolution must also be ratified by the Noteholders
of the Issuer Notes of the higher class or classes in order for
the Extraordinary Resolution which seeks approval of the
modification or waiver to be valid and effective.
12. Entitlement to Treat holder as owner
The Master Issuer, the Note Trustee and any Paying Agent may (to the
fullest extent permitted by applicable laws) deem and treat the Holder
of any Note Certificate as the absolute owner of the Issuer Notes
represented by such Note Certificate, for all purposes (whether or not
such Issuer Note represented by such Note Certificate shall be overdue
and notwithstanding any notation of ownership or other writing thereon
or any notice of loss or theft of such Note Certificate), and, except as
ordered by a court of competent jurisdiction or as required by
applicable law, the Master Issuer, the Note Trustee and the Paying
Agents shall not be affected by any notice to the contrary. All payments
made to any such holder shall be valid and, to the extent of the sums so
paid, effective to satisfy and discharge the liability for the monies
payable in respect of such Issuer Note.
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13. Currency Indemnity
13.1 Currency and Indemnity: The sole currency of account and payment (the
"Contractual Currency") for all sums payable by the Master Issuer under
or in connection with these presents, the Issuer Notes and the other
Issuer Secured Obligations including damages is (a) in relation to any
Series and Class of Issuer Notes, the currency in which such Series and
Class of Issuer Notes is denominated and (b) in relation to Clauses 9.1
(Normal Remuneration), 9.2 (Extra Remuneration), 9.3 (Failure to Agree),
9.4 (Expenses), 9.5 (Indemnity), 9.7 (VAT) and 9.8 (Interest), pounds
sterling. An amount received or recovered in a currency other than the
Contractual Currency (whether as a result of, or of the enforcement of,
a judgment or order of a court of any jurisdiction, in the winding-up or
dissolution of the Master Issuer or otherwise), by the Note Trustee or
any Noteholder or other Issuer Secured Creditors in respect of any sum
expressed to be due to it from the Master Issuer will only discharge the
Master Issuer to the extent of the Contractual Currency amount which the
recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if
it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do so). If the Contractual Currency
amount is less than the Contractual Currency amount expressed to be due
to the recipient under these presents or the Issuer Notes, or the other
Issuer Transaction Documents the Master Issuer will indemnify the
recipient against any loss sustained by it as a result. In any event,
the Master Issuer will indemnify the recipient against the cost of
making any such purchase.
13.2 Indemnities Separate: The indemnities in these presents constitute
separate and independent obligations from the other obligations in these
presents and the other Issuer Transaction Documents, will give rise to
separate and independent causes of action, will apply irrespective of
any indulgence granted by the Note Trustee and/or any Noteholder or
other Issuer Secured Creditor and will continue in full force and effect
despite any judgment, order, claim or proof for a liquidated amount in
respect of any sum due under these presents, the Issuer Notes, any other
Issuer Transaction Documents or any other judgment or order. Any such
loss as referred to in Clause 13.1 (Currency and Indemnity) shall be
deemed to constitute a loss suffered by the Note Trustee, the
Noteholders or the relevant Issuer Secured Creditors and no proof or
evidence of any actual loss shall be required by the Master Issuer or
its liquidator or liquidators.
14. Appointment, Removal and Retirement of Note Trustee
14.1 Power of the Master Issuer: Subject to the provisions of this Clause 14
(Appointment, Removal and Retirement of Note Trustee), the power of
appointing a new Note Trustee in place of an existing Note Trustee shall
be vested in the Master Issuer but such appointment or removal must be
approved by (save to the extent otherwise provided in the Issuer
Conditions) an Extraordinary Resolution of the Class A Noteholders, the
Class B Noteholders, the Class M Noteholders, the Class C Noteholders
and the Class D Noteholders of the Notes then outstanding. A trust
corporation may be appointed sole trustee hereof but subject thereto
there shall be at least two trustees hereof, one at least of which shall
be a trust corporation. Any appointment of a new Note Trustee and any
retirement of an existing Note Trustee hereof shall as soon as
practicable thereafter be notified by the Master Issuer to the
Noteholders. Any new Note Trustee must meet the requirements set out in
Clause
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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 U.S.$50,000,000 as set
forth in its most recent published annual report of condition. If the
Note Trustee has or shall acquire any "conflicting interest" within the
meaning of Trust Indenture Act Section 310(b), the Note Trustee and the
Master Issuer shall comply with the provisions of Trust Indenture Act
Section 310(b); provided, however, that there shall be excluded from the
operation of Trust Indenture Act Section 310(b)(1) any deed or deeds
under which other securities or certificates of interest or
participation in other securities of the Master Issuer are outstanding
if the requirements for such exclusion set forth in Trust Indenture Act
Section 310(b)(1) are met. If at any time the Note Trustee shall cease
to be eligible in accordance with the provisions of this Clause 14.2
(Eligibility and Disqualification), the Note Trustee shall resign
promptly in the manner and with the effect specified in Clause 14.5
(Retirement or Removal of Note Trustee).
14.3 Powers of Note Trustee to appoint: Notwithstanding the provisions of
Clause 14.1 (Power of the Master Issuer), the Note Trustee may (as
attorney for the Master Issuer) upon giving prior notice to the Master
Issuer but without the consent of the Master Issuer or the Noteholders
appoint any person established or resident in any jurisdiction (whether
a trust corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Note Trustee:
(a) if the Note Trustee considers such appointment to be in the
interests of the Noteholders; or
(b) for the purposes of conforming to any legal requirements,
restrictions or Issuer Conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of these presents or any of the
other Issuer Transaction Documents against the Master Issuer or
any other party thereto.
The Master Issuer hereby irrevocably appoints the Note Trustee to be its
attorney in its name and on its behalf to execute any such instrument of
appointment. Such a person shall (subject always to the provisions of
these presents and any other Issuer Transaction Document to which the
Note Trustee is a party) have such trusts, powers, authorities and any
discretion (not exceeding those conferred on the Note Trustee by these
presents or any of the other Issuer Transaction Documents to which the
Note Trustee is a party) and such duties and obligations as shall be
conferred or imposed on it by the instrument of appointment. The Note
Trustee shall have power in like manner to remove any such person. Such
proper remuneration as the Note Trustee may pay to any such person,
together with any attributable costs, charges and expenses incurred by
it in performing its function as such separate trustee or co-trustee,
shall for the purposes of these presents be treated as costs, charges
and expenses incurred by the Note Trustee.
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14.4 Multiple Trustees: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and any discretion vested by these
presents and any of the other Issuer Transaction Documents in the Note
Trustee generally.
14.5 Retirement or Removal of Note Trustee: Subject as provided in Clause
14.6 (Retirement or Removal not Effective), any Note Trustee for the
time being of this Deed may retire at any time upon giving not less than
three months' prior notice in writing to the Master Issuer without
assigning any reason therefor and without being responsible for any
costs resulting from such retirement. The Noteholders may by
Extraordinary Resolution of each class of Noteholders remove any trustee
or trustees for the time being of these presents
14.6 Retirement or Removal not Effective: The retirement or removal of any
Note Trustee shall not become effective unless (i) there remains at
least one trustee hereof being a trust corporation in office upon such
retirement or removal and (ii) if The Bank of New York is the retiring
Note Trustee or the Note Trustee being removed, The Bank of New York, in
its capacities as Issuer Security Trustee and Funding 2 Security Trustee
also retires or is removed simultaneously. The Master Issuer covenants
that, in the event of a trustee (being a sole trustee or the only trust
corporation) giving notice or being removed under Clause 14.5
(Retirement or Removal of Note Trustee) it shall use its best endeavours
to procure a new Note Trustee of these presents (being a trust
corporation) to be appointed as soon as reasonably practicable
thereafter (for the avoidance of doubt, on the same terms as these
presents). If within 30 days of having given notice of its intention to
retire, the Master Issuer has failed to appoint a replacement Note
Trustee, the outgoing Note Trustee will be entitled to appoint its
successor provided that the Rating Agencies confirm that the then
current ratings of the Issuer Notes shall not be either downgraded or
reviewed as a result of such appointment.
15. Trust Indenture Act Prevails
If any provision of these presents limits, qualifies or conflicts with
another provision which is required to be included in these presents by,
and is not subject to a contractual waiver under, the Trust Indenture
Act, the required provision of the Trust Indenture Act shall be deemed
to be incorporated into these presents and shall prevail.
16. Certificates and Opinions
16.1 Evidence of Compliance as to Conditions Precedent: Upon any request or
application by the Master Issuer to the Note Trustee to take any action
under this Trust Deed or these presents, the Master Issuer shall furnish
to the Note Trustee in accordance with Section 314(c) of the Trust
Indenture Act:
(a) an Officers' Certificate (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in these presents
relating to the proposed action have been complied with; and
39
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below) stating that, in the opinion of such counsel, all
such conditions precedent, if any, provided for in these presents
relating to the proposed action have been complied with.
16.2 Statements required in Certificates and Opinions: Each certificate and
opinion with respect to compliance with a condition or covenant provided
for in these presents or these presents, in accordance with Section
314(e) of the Trust Indenture Act, shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition and the definitions relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has made
such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
17. 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.
18. Notices
18.1 Any notices or other communication or document to be given or delivered
pursuant to these presents to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on
the day of delivery if delivered before 17.00 hours on a London Business
Day or on the next London Business Day if delivered thereafter or (in
the case of first class post) when it would be received in the ordinary
course of the post and shall be sent:
(a) in the case of the Master Issuer, to Granite Mortgages 04-3 plc
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,
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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).
18.2 Communications by Noteholders with other Noteholders: Noteholders may
communicate pursuant to Trust Indenture Act Section 312(b) with other
Noteholders with respect to their rights under these presents or the
Issuer Notes. The Master Issuer and the Note Trustee shall have the
protection of Trust Indenture Act Section 312(c).
18.3 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.
19. 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.
20. Execution in Counterparts; Severability
20.1 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.
20.2 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.
21. Governing Law and Jurisdiction: Appropriate Forum
21.1 Governing Law: These presents and the Issuer Notes are governed by, and
shall be construed in accordance with, English law.
21.2 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.
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21.3 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.
42
SCHEDULE 1
FORM OF GLOBAL NOTE CERTIFICATE
[THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE ISSUER NOTES MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.](1)
- -------------------------
(1) Dele for U.S. Notes.
43
GRANITE MASTER ISSUER PLC
(Incorporated with limited liability in England and Wales with
registered number 5250668)
SERIES [o] CLASS [A]/[B]/[M]/[C]/[D] GLOBAL NOTE CERTIFICATE
representing
[Specified Currency and Initial Principal Amount] Series [o]
Class [A]/[B]/[M]/[C]/[D]
Notes due [o]
1. Introduction
This Global Note Certificate is issued in respect of the [Specified
Currency and Initial Principal Amount] Series [o] Class
[A]/[B]/[M]/[C]/[D] Notes due [o] (the "Notes") of Granite Master Issuer
plc (the "Master Issuer") limited to the aggregate principal amount of
[Initial Principal Amount - words and figures]
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2005 (as amended or supplemented from time to time,
the "Issuer Trust Deed") between the Master Issuer and The Bank of New
York as trustee (the trustee for the time being thereof being herein
called the "Note Trustee") and are the subject of a paying agent and
agent bank agreement dated [o] 2005 (as amended or supplemented from
time to time, the "Issuer Paying Agent and Agent Bank Agreement")
between the Master Issuer, the Principal Paying Agent, the Agent Bank,
Citibank, N.A. as registrar (the "Registrar", which expression includes
any successor registrar appointed from time to time in connection with
the Notes), the Transfer Agent, the US Paying Agent and the Note
Trustee.
2. References to Conditions
References herein to the Issuer Conditions (or to any particular
numbered Condition) shall be to the Issuer Conditions (or that
particular one of them) set out in Schedule 3 to the Issuer Trust Deed
as supplemented and modified by the Pricing Supplement applicable to the
Notes (the "Pricing Supplement"), attached hereto. In the event of any
conflict between the Issuer Conditions and the information in the
Pricing Supplement, the Pricing Supplement will prevail.
3. Registered Holder
This is to certify that:
[CITIVIC NOMINEES LTD.](2)/[CEDE & CO.](3)
- -----------------------------
(2) Delete or U.S. Notes.
(3) Delet for Reg S Notes.
44
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[Initial Principal Amount - words and figures]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Issuer
Conditions, the Master Issuer, for value received, promises to pay to
the Holder the principal amount of this Global Note Certificate (being
at the date hereof [Initial Principal Amount] on the Final Maturity Date
(or on such earlier date as such principal amount may become repayable
in accordance with the Issuer Conditions or the Issuer Trust Deed) and
to pay interest on the principal amount from time to time (as noted in
the records of the [common depositary for Euroclear and Clearstream,
Luxembourg](4)/[custodian for DTC](5) of this Global Note Certificate)
in arrear on each Payment Date at the rates determined in accordance
with the Issuer Conditions together with such premium and other amounts
(if any) as may be payable, all subject to and in accordance with the
Issuer Conditions and the provisions of the Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Issuer Trust Deed only if (i) [both Euroclear and Clearstream,
Luxembourg are closed for a continuous period of 14 days (other than by
reason of a holiday, statutory or otherwise) or announce an intention to
permanently cease business and do so cease to do business and no
alternative clearing system satisfactory to the Note Trustee is
available](6)/[The Depository Trust Company ("DTC") has notified the
Master Issuer that it is at any time unwilling or unable to continue as,
or ceases to be, a clearing agency under the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and a successor
to DTC registered as a clearing agency under the Exchange Act is not
appointed by the Master Issuer within 90 days of such notification](7)
or (ii) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political subdivision
thereof), or of any authority therein or thereof having power to tax, or
in the interpretation or administration by a revenue authority or a
court or administration of such laws or regulations which becomes
effective on or after the Closing Date, the Master Issuer or any Paying
Agent is or will be required to make any deduction or withholding from
any payment in respect of the Notes which would not be required were the
relevant Notes Individual Note Certificates. Such exchange shall be
effected in accordance with paragraph 6 (Delivery of Individual Note
Certificates) below.
- ------------------------------
(4) Delete for U.S. Notes
(5) Delete for Reg S Notes
(6) Delete for U.S. Notes
(7) Delete for Reg S Notes
45
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by or
on behalf of the Holder, [Euroclear and/or Clearstream,
Luxembourg](8)/[and/or DTC](9), to the Registrar of such information as
is required to complete and deliver such Individual Note Certificates
(including, without limitation, the names and addresses of the persons
in whose names the Individual Note Certificates are to be registered and
the principal amount of each such person's holding) against the
surrender of this Global Note Certificate at the Specified Office (as
defined in the Issuer Conditions) of the Registrar. Such exchange shall
be effected in accordance with the provisions of the Issuer Paying Agent
and Agent Bank Agreement and the regulations concerning the transfer and
registration of Notes scheduled thereto and, in particular, shall be
effected without charge to any Holder or the Note Trustee, but against
such indemnity as the Registrar may require in respect of any tax or
other duty of whatsoever nature which may be levied or imposed in
connection with such exchange. In this paragraph, "business day" means a
day on which commercial banks are open for business in the city in which
the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance
with the Issuer Conditions. All payments of any amounts payable and paid
to the Holder of this Global Note Certificate shall be valid and, to the
extent of the sums so paid, effectual to satisfy and discharge the
liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Issuer
Conditions, and, for the purposes of this Global Note Certificate, any
reference in the Issuer Conditions to "Note Certificate" or "Note
Certificates" shall, except where the context otherwise requires, be
construed so as to include this Global Note Certificate.
[9. Tax Treatment
The Master Issuer will treat the Notes as indebtedness for U.S. federal
income tax purposes. Each Holder of a Note, by the acceptance hereof,
agrees to treat this Note for U.S. federal income tax purposes as
indebtedness.](10)
- ------------------------------
(8) Delete for U.S. Notes
(9) Delete for Reg S Notes
(10) Delete for Reg S Notes
46
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. Note Trustee's Powers
In considering the interests of Noteholders in circumstances where this
Global Note Certificate is held on behalf of DTC, Euroclear and/or
Clearstream, Luxembourg, the Note Trustee may, to the extent it
considers it appropriate to do so in the circumstances, (i) have regard
to such information as may have been made available to it by or on
behalf of the relevant clearing system or its operator as to the
identity of its accountholders (either individually or by way of
category) with entitlements in respect of this Global Note Certificate
and (ii) consider such interests on the basis that such accountholders
were the holders of this Global Note Certificate.
13. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Issuer Conditions.
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 English law.
IN WITNESS whereof the Master Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
47
GRANITE MASTER ISSUER plc
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2005.
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.........................
[manual signature]
(duly authorised)
48
FORM OF TRANSFER
FOR VALUE RECEIVED ................................................., being the
registered holder of this Global Note Certificate, hereby transfers to ....
............................................................................
of ........................................................................
............................................................................
[Specified Currency] [amount] in principal amount of the [Specified Currency
and Initial Principal Amount] Series [o] Class [A]/[B]/[M]/[C]/[D] Notes (the
"Notes") of Granite Master Issuer plc (the "Master Issuer") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in
relation to the Notes (or any successor to Citibank, N.A., in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
Register kept by it.
Dated:..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to [Specified
Denomination].
49
[Pricing Supplement]
50
SCHEDULE 2
[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.](11)
- -----------------------------
(11) Delete for U.S. Notes.
51
- --------------------------------------------------------------------------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
- --------------------------------------------------------------------------------
GRANITE MASTER ISSUER plc
(Incorporated with limited liability in England and Wales with registered
number 5250668)
SERIES [o] CLASS [A]/[B]/[M]/[C]/[D] INDIVIDUAL NOTE CERTIFICATE
representing
[Specified Currency and Initial Principal Amount] Series [o]
Class [A]/[B]/[M]/[C]/[D]
Notes due [o]
1. Introduction
This Individual Note Certificate is issued in respect of the [Specified
Currency and Initial Principal Amount] Series [o] Class
[A]/[B]/[M]/[C]/[D] Notes due [o] (the "Notes") of Granite Master Issuer
(the "Master Issuer") limited to the aggregate principal amount of
[Initial Principal Amount - words and figures]
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2005 (as amended or supplemented from time to time,
the "Issuer Trust Deed") between the Master Issuer and The Bank of New
York as trustee (the trustee or trustees for the time being thereof
being herein called the "Note Trustee") and are the subject of a paying
agent and agent bank agreement dated [o] 2005 (as amended or
supplemented from time to time, the "Issuer Paying Agent and Agent Bank
Agreement") between the Master Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Issuer Conditions (or to any particular
numbered Condition) shall be to the Issuer Conditions (or that
particular one of them) set out in Schedule 3 to the Issuer Trust Deed
as supplemented and modified by the Pricing Supplement applicable to the
Notes (the "Pricing Supplement"), attached hereto. In the event of any
conflict between the Issuer Conditions and the information in the
Pricing Supplement, the Pricing Supplement will prevail.
3. Registered Holder
This is to certify that
[Noteholder]
52
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:
[Specified Currency and principal amount]
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Issuer Conditions, the Master Issuer, for value received, promises to
pay to the Holder the principal amount of this Individual Note
Certificate (being at the date hereof [principal amount]) on the Final
Maturity Date (or on such earlier date as such principal amount may
become repayable in accordance with the Issuer Conditions or the Issuer
Trust Deed) and to pay interest on the Principal Amount Outstanding of
this Individual Note Certificate in arrears on each Payment Date at the
rate or rates provided for in, or determined in accordance with, the
Issuer Conditions together with such premium and other amounts (if any)
as may be payable, all subject to and in accordance with the Issuer
Conditions and the provisions of the Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in
accordance with the Issuer Conditions. All payments of any amounts
payable and paid to the Holder of this Individual Note Certificate shall
be valid and, to the extent of the sums so paid, effectual to satisfy
and discharge the liability for the monies payable hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Issuer
Conditions, and, for the purposes of this Individual Note Certificate,
any reference in the Issuer Conditions to "Note Certificate" or "Note
Certificates" shall, except where the context otherwise requires, be
construed so as to include this Individual Note Certificate.
[7. Tax Treatment
The Master Issuer will treat the Notes as indebtedness for U.S. federal
income tax purposes. Each Holder of a Note, by the acceptance hereof,
agrees to treat this Note for U.S. federal income tax purposes as
indebtedness.](12)
8. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
53
- ------------------------------
(12) Delete for Reg S Notes
9. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) 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 Master Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MASTER ISSUER plc
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
54
FORM OF TRANSFER
FOR VALUE RECEIVED ................................................., being the
registered holder of this Individual Note Certificate, hereby transfers to
............................................................................of
............................................................................
[Specified Currency] [amount] in principal amount of the [Specified Currency
and Initial Principal Amount] Series [o] Class [A]/[B]/[M]/[C]/[D] Notes (the
"Notes") of Granite Master Issuer plc (the "Master Issuer") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in
relation to the Notes (or any successor to Citibank, N.A., in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Issuer Paying Agency and
Agent Bank Agreement.
Dated:..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to [Specified
Denominations].
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
55
[Pricing Supplement]
56
SCHEDULE 3
[TERMS AND] CONDITIONS OF THE NOTES
[To be inserted]
57
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1 (A) Definitions
As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
"Basic Terms Modification" means, in respect of any Series and
Class of Issuer Notes, any modification which would have the
effect of:
(i) reducing or cancelling the amount payable or, where
applicable, modifying, except where such modification is in
the opinion of the Note Trustee bound to result in an
increase, the method of calculating the amount payable or
modifying the date of payment or, where applicable, altering
the method of calculating the date of payment in respect of
any principal or interest in respect of such Issuer Notes;
(ii) altering the priority in which payments are made to
Noteholders pursuant to any Issuer Priority of Payments
(except in a manner determined by the Note Trustee not to be
materially prejudicial to the interests of the Noteholders
of such Notes);
(iii) altering the currency in which payments under the Issuer
Notes are to be made;
(iv) altering the quorum or majority required to pass an
Extraordinary Resolution; and
(v) altering this definition or the proviso to paragraph 6
below;
"Block Voting Instruction" shall mean, in relation to any Meeting,
an English language document issued by the Registrar and dated in
which:
(a) it is certified that:
(i) certain specified Issuer Notes (each a "Blocked Note")
have been blocked in an account with a clearing system
and will not be released until the conclusion of the
Meeting or, if later, any adjourned Meeting, and that
the holder of each Blocked Note or a duly authorised
person on its behalf has instructed the Registrar that
the votes attributable to such Blocked Note are to be
cast in a particular way on each resolution to be put
to the Meeting or any adjourned Meeting; or
(ii) each registered holder of such Issuer Notes or a duly
authorised person on its behalf has instructed the
Registrar that the vote(s) attributable to the Issuer
Note or Issuer Notes so held (each a "Relevant Note")
should be cast in a particular way in relation to the
resolution or resolutions to be put to such Meeting or
any adjourned Meeting; and
58
(iii) in each case that, all such instructions are, during
the period commencing 48 hours prior to the time for
which such Meeting or any adjourned Meeting is
convened and ending at the conclusion or adjournment
thereof, neither revocable nor capable of amendment;
(b) the aggregate principal amount of the Blocked Notes and
Relevant Notes so held are listed distinguishing with regard
to each such resolution between those in respect of which
instructions have been given as aforesaid that the votes
attributable thereto should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the votes attributable thereto should be
cast against the resolution; and
(c) one or more persons named in such document is or are
authorised and instructed by such Registrar to cast the
votes attributable to such Blocked Note and Relevant Notes
so listed in accordance with the instructions referred to in
(a) above as set out in such document;
"Chairman" means, in relation to any Meeting, the individual who
takes the chair in accordance with paragraph 4 (Chairman);
"Extraordinary Resolution" means (a) a resolution passed at a
Meeting duly convened and held in accordance with the provisions
of this Schedule 4 by a majority consisting of not less than
three-fourths of the persons voting thereat upon a show of hands
or if a poll is duly demanded by a majority consisting of not less
than three-fourths of the votes cast on such poll or (b) a
resolution in writing signed by or on behalf of all the
Noteholders of a particular class of Issuer Notes which resolution
may be contained in one document or several documents in like form
each signed by or on behalf of one or more of the relevant
Noteholders;
"Form of Proxy" means, in relation to any Meeting, a document in
the English language available from the Registrar signed by a
Noteholder or, in the case of a corporation, executed under its
seal or signed on its behalf by a duly authorised officer of the
corporation and delivered to the Registrar not later than 48 hours
before the time fixed for such Meeting, appointing one or more
persons who is or are authorised and instructed to vote in respect
of the Issuer Notes held by such Noteholder;
"Meeting" shall mean a meeting of Noteholders (whether originally
convened or reviewed following an adjournment);
"Proxy" means, in relation to any Meeting, a person appointed to
vote under a Block Voting Instruction or a Form of Proxy other
than:
(a) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing
of such revocation by the time which is 48 hours before the
time fixed for such Meeting; and
59
(b) any such person appointed to vote at a Meeting which has
been adjourned for want of a quorum and who has not been
re-appointed to vote at a Meeting when it is resumed;
"Issuer Notes" and "Noteholders" shall mean:
(a) in connection with a Meeting of Class A Noteholders, Class A
Notes and Class A Noteholders, respectively;
(b) in connection with a Meeting of Class B Noteholders, Class B
Notes and Class B Noteholders respectively;
(c) in connection with a Meeting of the Class M Noteholders,
Class M Notes and Class M Noteholders respectively;
(d) in connection with a Meeting of Class C Noteholders, Class C
Notes and Class C Noteholders respectively; and
(e) in connection with a Meeting of Class D Noteholders, Class D
Notes and Class D Noteholders respectively;
"Written Resolution" means a resolution in writing signed by or on
behalf of all holders of a class of Issuer Notes who for the time
being are entitled to receive notice of a Meeting in accordance
with the provisions of this Schedule, whether contained in one
document or several documents in the same form, each signed by or
on behalf of one or more such holders of the relevant class of
Issuer Notes;
"24 hours" means a period of 24 hours including all or part of a
day upon which banks are open for business in both the place where
the relevant Meeting is to be held and in each of the places where
the Paying Agents have their Specified Offices (disregarding for
this purpose the day upon which such Meeting is to be held) and
such period shall be extended by one period or, to the extent
necessary, more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are open for
business in all of the places as aforesaid; and
"48 hours" means 2 consecutive periods of 24 hours.
(B) Issue of Block Voting Instructions
The holder of an Issuer Note may require the Registrar to issue a Block
Voting Instruction by arranging (to the satisfaction of the Registrar)
for such Issuer Note to be blocked in an account with a clearing system
not later than 48 hours before the time fixed for the relevant Meeting.
The holder of an Issuer Note may require the Registrar to issue a Block
Voting Instruction by delivering to the Registrar written instructions
not later than 48 hours before the time fixed for the relevant Meeting.
Any holder of an Issuer Note may obtain a blank and unexecuted Form of
Proxy from the Registrar. A Block Voting Instruction and a Form of Proxy
cannot be outstanding simultaneously in respect of the same Issuer Note.
60
(C) References to Blocking/Release of Issuer Notes
Where Issuer Notes are represented by Global Note Certificates, or are
held in individual certificated form within a Clearing System),
references to blocking or release of Issuer Notes shall be construed in
accordance with the usual practices (including blocking the relevant
account) of the relevant Clearing System.
(D) Issue of Forms of Proxy
(i) A holder of Issuer Notes may obtain an uncompleted and unexecuted
Form of Proxy from the Registrar.
(ii) Any holder of Issuer Notes which is a corporation may by
resolution of its directors or other governing body authorise any
person to act as its representative (a "Representative") in
connection with any Meeting.
(iii) Any Proxy or Representative shall, so long as such appointment
remains in force, be deemed for all purposes in connection with
the relevant Meeting, to be the holder of the Issuer Notes to
which such appointment relates and the holder of the Issuer Notes
shall be deemed for such purposes not to be the holder.
2. Convening of Meeting
The Master Issuer or the Note Trustee or (in relation to a Meeting for
the passing of a Programme Resolution) the Noteholders of any Series and
Class of Issuer Notes may convene a Meeting at any time, and the Note
Trustee shall be obliged to do so, subject to it being indemnified to
its satisfaction, upon a request in writing of Noteholders holding not
less than one-tenth in principal amount of the outstanding Issuer Notes
of any class or classes entitled to vote. If the Master Issuer defaults
for a period of seven days in convening such a Meeting, the same may be
convened by the Note Trustee or the requisitionists. Every such Meeting
shall be held on such date and at such time and place as the Note
Trustee may appoint or approve.
3. Notice
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the Meeting is to be held) specifying the
place, day and hour of Meeting, shall be given to the relevant
Noteholders, the Paying Agents, the Agent Bank and the Registrar prior
to any Meeting. Such notice shall: (1) be in the English language; (2)
state in outline the nature of the business to be transacted at the
Meeting to which it relates; and, (3) shall specify the terms of any
resolution to be proposed. Such notice shall include statements, if
applicable, to the effect that (a) Issuer Notes may be blocked in
clearing systems for the purposes of appointing Proxies under Block
Voting Instructions until 48 hours before the time fixed for the
Meeting; and, (b) a Noteholder may appoint a Proxy, either (i) under a
Block Voting Instruction by delivering written instructions to the
Registrar, or (ii) by executing and delivering a Form of Proxy to the
Specified Office of the Registrar. In the case of both (i) or (ii) such
appointment of a Proxy may be done up to 48 hours before the time fixed
for the Meeting. A copy of the notice shall be sent by post to the Note
Trustee (unless the
61
Meeting is convened by the Note Trustee) and, to the Master Issuer
(unless the Meeting is convened by the Master Issuer).
4. Chairman
A person (who may, but need not be, a Noteholder) nominated in writing
by the Note Trustee shall be entitled to take the chair at the relevant
Meeting, but if no such nomination is made or if at any Meeting the
person nominated shall not be present within 15 minutes after the time
appointed for holding the Meeting the Noteholders present shall choose
one of their number to be Chairman, failing which the Master Issuer may
appoint a Chairman. The Chairman of an adjourned Meeting need not be the
same person as was Chairman of the Meeting from which the adjournment
took place.
5. Quorum
Subject as provided in the Issuer Conditions:
(a) any such Meeting of one or more persons present holding Issuer
Notes or being Proxies or Representatives and holding or
representing in the aggregate not less than one-twentieth of the
principal amount of the Issuer Notes of the relevant Series and
Class or of any one or more Series of the same Class for the time
being outstanding (or, at any adjourned Meeting, one or more
persons being or representing Noteholders whatever the aggregate
Principal Amount Outstanding of the Issuer Notes of the such
Series and Class or such one or more Series of the same Class)
shall (except for the purpose of passing an Extraordinary
Resolution or a Programme Resolution) form a quorum for the
transaction of business and no business (other than the choosing
of a Chairman) shall be transacted at any Meeting unless the
requisite quorum be present at the commencement of the relevant
business;
(b) the quorum at any such Meeting for passing an Extraordinary
Resolution (other than an Extraordinary Resolution to sanction a
Basic Term Modification) or a Programme Resolution shall (subject
as provided below) be one or more persons present holding or
representing Issuer Notes or being Proxies or Representatives and
holding or representing in the aggregate more than half of the
aggregate principal amount of the Issuer Notes outstanding (as
defined in Clause 1.6 of the Issuer Trust Deed) of the relevant
Series and Class or of any one or more Series of the same class
(or, at any adjourned Meeting, on or more persons being or
representing Noteholders whatever the aggregate principal amount
of the Issuer Notes outstanding (as defined in Clause 1.6 of the
Issuer Trust Deed) of such Series and Class or such one or more
Series of the same class so held or represented); or
(c) at any Meeting the business of which includes the passing of an
Extraordinary Resolution to sanction a Basic Terms Modification,
the quorum for passing the requisite Extraordinary Resolution
shall be two or more persons present holding Issuer Notes or being
Proxies or Representatives and holding or representing in the
aggregate not less than three quarters in aggregate principal
amount of the Issuer Notes outstanding (as defined in Clause 1.6
of the Issuer Trust Deed) of the relevant Series and Class or of
any one or more Series of the same Class (or, at any adjourned
62
Meeting, two or more persons present holding or representing in
the aggregate not less than one quarter in aggregate principal
amount of the Issuer Notes outstanding (as defined in Clause 1.6
of the Issuer Trust Deed) of such Series and Class or such one or
more Series of the same Class).
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.
9. Chairman's declaration
At any Meeting, unless a poll is (before or on the declaration of the
result of the show of hands) validly demanded by the Chairman, the
Master Issuer, the Note Trustee or
63
any person present holding a Individual Note Certificate or being a
Proxy or Representative (whatever the principal amount of the Issuer
Notes so held or represented by him) a declaration by the Chairman that
a resolution has been carried or carried by a particular majority or
lost or not carried by a particular majority shall be conclusive
evidence of the fact without proof of the number or proportion of the
votes recorded in favour of or against such resolution.
10. Poll
Subject to paragraph 12 (Limitation on Adjournments) below, if at such
Meeting a poll is demanded it shall be taken in such manner and subject
as hereinafter provided either at once or after an adjournment as the
Chairman directs and the result of such poll shall be deemed to be the
resolution of the Meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll shall not prevent the
continuance of the Meeting for the transaction of any business other
than the motion on which the poll has been demanded.
11. Adjourned Meeting
The Chairman may with the consent of (and shall if directed by) any such
Meeting adjourn the same from time to time and from place to place, but
no business shall be transacted at any adjourned Meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the Meeting from which the adjournment took place.
12. Limitation on Adjournments
Any poll demanded at any adjourned Meeting, on the election of a
Chairman or on any question of adjournment, shall be taken at the
Meeting without adjournment.
13. Participation
Any Proxy and/or Representative, the Note Trustee and its lawyers and
financial advisers and any director, officer or employee of a
corporation being a trustee of the Issuer Trust Deed and any director or
officer of the Master Issuer and its lawyers and financial advisers, the
Registrar, and any other person authorised so to do by the Meeting or
the Note Trustee may attend and speak at any Meeting. Save as aforesaid,
but without prejudice to the definition of "Principal Amount
Outstanding", no person shall be entitled to attend and speak nor shall
any person be entitled to vote at any Meeting or join with others in
requesting the convening of such a Meeting or to exercise the rights
conferred on the Noteholders by Clause 7 (Proceedings, Actions and
Indemnification) of the Issuer Trust Deed unless he either produces a
Note Certificate or is a Proxy or a Representative or is the holder of
an Individual Note Certificate or Individual Note Certificates. No
person shall be entitled to vote at any Meeting in respect of Issuer
Notes held by, for the benefit of, or on behalf of, the Issuer or the
Borrowers. Nothing herein shall prevent any of the Proxies named in any
Block Voting Instruction or Form of Proxy or any Representative from
being a director, officer or representative of or otherwise connected
with the Master Issuer.
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14. Votes
Subject as provided in paragraph 13 (Participation) hereof at any
Meeting:
(a) on a show of hands every person who is present in person and is a
holder of Issuer Notes or is a Proxy or Representative shall have
one vote; and
(b) on a poll every such person who is so present shall have one vote
in respect of each [GBP1] or such other amount as the Note Trustee
may, in its discretion, stipulate (or in the case of Meetings of
holders of Issuer Notes denominated in another currency, such
amount in such currency as the Note Trustee in its absolute
discretion may stipulate) in Principal Amount Outstanding of the
Issuer Notes in respect of which he is a Proxy or Representative
or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction or Form of Proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. Proxies need not be Noteholders
The Proxies named in any Block Voting Instruction or Form of Proxy and
representatives need not be Noteholders.
16. Deposit of votes
Each Block Voting Instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the Registrar and each Form of Proxy shall be
deposited by the Registrar at such place as the Note Trustee shall
approve not less than 24 hours before the time appointed for holding the
Meeting or adjourned Meeting at which the Proxies named in the Block
Voting Instruction or Form of Proxy propose to vote and in default the
Block Voting Instruction or Form of Proxy shall not be treated as valid
unless the Chairman decides otherwise before such Meeting or adjourned
Meeting proceeds to business. A notarially certified copy of each Block
Voting Instruction and Form of Proxy shall be deposited with the Note
Trustee before the commencement of the Meeting or adjourned Meeting but
the Note Trustee shall not thereby be obliged to investigate or be
concerned with the validity of or the authority of the Proxies named in
any such Block Voting Instruction or Form of Proxy.
17. Validity of Votes by Proxies
Any vote by a Proxy given in accordance with the terms of a Block Voting
Instruction or Form of Proxy shall be valid notwithstanding the previous
revocation or amendment of the Block Voting Instruction or the Form of
Proxy or of any of the Noteholders' instructions pursuant to which it
was executed, provided that no intimation in writing of such revocation
or amendment shall have been received 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
65
force in relation to any resumption of such Meeting following an
adjournment; provided, however, that no such appointment of a Proxy in
relation to a Meeting originally convened which has been adjourned for
want of a quorum shall remain in force in relation to such Meeting when
it is resumed. Any person appointed to vote at such a Meeting must be
re-appointed under a Block Voting Instruction or Form of Proxy to vote
at the Meeting when it is resumed.
18. Record Date
The Master Issuer may fix a record date for the purposes of any Meeting
or any resumption thereof following its adjournment for want of a quorum
provided that such record date is not more than 10 days prior to the
time fixed for such Meeting or (as the case may be) its resumption. The
person in whose name an Issuer Note is registered in the Register on the
record date at close of business in the city in which the Registrar has
its Specified Office shall be deemed to be the holder of such Issuer
Note for the purposes of such Meeting and notwithstanding any subsequent
transfer of such Issuer Note or entries in the Register; and provided
that any Proxy appointed pursuant to a Form of Proxy shall so long as
such appointment remains in force, be deemed for all purposes in
connection with any Meeting or proposed Meeting specified in such
appointment, to be the holder of the Issuer Note to which such
appointment relates and the holder of the Issuer Note shall be deemed
for the purposes not to be the holder.
19. Powers
Subject always to the provisions of Clause 11 (Modification and Waiver)
of the Issuer Trust Deed and the Issuer Conditions, a Meeting shall, in
addition to the powers given to it above, have the following powers
exercisable only by Extraordinary Resolution (subject to the provisions
relating to quorum contained in paragraphs 5 (Quorum) and 6 (Adjournment
for want of Quorum) above) namely:
(A) power to sanction any compromise or arrangement proposed to be
made between the Master Issuer, the Note Trustee, any appointee of
the Note Trustee and the Noteholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Master
Issuer against any other or others of them or against any other
party to any of the Issuer Transaction Documents or against any of
their property whether such rights shall arise under the Issuer
Trust Deed, any other Issuer Transaction Document or otherwise;
(C) power to assent to any modification of the provisions of the
Issuer Conditions, the Issuer Trust Deed or any other Issuer
Transaction Document which shall be proposed by the Master Issuer,
the Note Trustee, or any Noteholder or any other person;
(D) power to give any authority or sanction which under the provisions
of the Issuer Conditions or the Issuer Trust Deed is required to
be given by Extraordinary Resolution;
66
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or any discretion which the Noteholders could themselves
exercise by Extraordinary Resolution;
(F) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of the Issuer
Trust Deed;
(G) power to discharge or exonerate the Note Trustee and/or any
appointee of the Note Trustee from all liability in respect of any
act or omission for which the Note Trustee and/or such appointee
may have become responsible under the Issuer Trust Deed;
(H) power to authorise the Note Trustee and/or any appointee of the
Note Trustee to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution;
(I) power to sanction any scheme or proposal for the exchange or sale
of the Issuer Notes for or the conversion of the Issuer Notes into
or the cancellation of the Issuer Notes in consideration of
shares, stock, notes, bonds, debentures, debenture stock and/or
other obligations and/or notes of the Master Issuer or any other
company formed or to be formed, or for or into or in consideration
of cash, or partly for or into or in consideration of such shares,
stock, notes, bonds, debentures, debenture stock and/or other
obligations and/or notes as aforesaid and partly for or into or in
consideration of cash and for the appointment of some person with
power on behalf of the Noteholders to execute an instrument of
transfer of the Individual Note Certificates held by them in
favour of the persons with or to whom the Issuer Notes are to be
exchanged or sold respectively,
provided, however, that:
(1) subject as provided in paragraph (2) below:
(i) an Extraordinary Resolution of the Class A Noteholders of any
Series shall be binding on all Class B Noteholders, all Class M
Noteholders, all Class C Noteholders and all Class D Noteholders
(in each case of that Series or of any other Series);
(ii) no Extraordinary Resolution of the Class B Noteholders of any
Series shall take effect for any purpose while any Class A Notes
(of that Series or of any other Series) remain outstanding unless
it shall have been sanctioned by an Extraordinary Resolution of
the Class A Noteholders of each Series or the Note Trustee is of
the opinion that it would not be materially prejudicial to the
interests of the Class A Noteholders of each Series (as
applicable);
(iii) no Extraordinary Resolution of the Class M Noteholders of any
Series shall take effect for any purpose while any Class A Notes
or Class B Notes (in each case, of that Series or of any other
Series) remain outstanding unless it shall have been sanctioned by
an Extraordinary Resolution of the Class A Noteholders and an
Extraordinary Resolution of the Class B Noteholders, in
67
each case of each Series or the Note Trustee is of the opinion
that it would not be materially prejudicial to the respective
interests of the Class A Noteholders and/or the Class B
Noteholders of each Series (as applicable);
(iv) no Extraordinary Resolution of the Class C Noteholders of any
Series shall take effect for any purpose while any Class A Notes,
Class B Notes or Class M Notes (in each case, of that Series or of
any other Series) remain outstanding unless it shall have been
sanctioned by an Extraordinary Resolution of the Class A
Noteholders, an Extraordinary Resolution of the Class B
Noteholders and an Extraordinary Resolution of the Class M
Noteholders, in each case of each Series or the Note Trustee is of
the opinion that it would not be materially prejudicial to the
respective interests of the Class A Noteholders, the Class B
Noteholders and/or the Class M Noteholders of each Series (as
applicable);
(v) an Extraordinary Resolution of the Class D Noteholders of any
Series shall take effect for any purpose while any Class A Notes,
Class B Notes, Class M Notes or Class C Notes (in each case, of
that Series or of any other Series) remain outstanding unless it
shall have been sanctioned by an Extraordinary Resolution of the
Class A Noteholders, an Extraordinary Resolution of the Class B
Noteholders, an Extraordinary Resolution of the Class M
Noteholders and an Extraordinary Resolution of the Class C
Noteholders, in each case of each Series or the Note Trustee is of
the opinion that it would not be materially prejudicial to the
respective interests of the Class A Noteholders, the Class B
Noteholders, the Class M Noteholders and/or the Class C
Noteholders of each Series (as applicable).
2. provided, however, that:
(i) no Extraordinary Resolution of the Noteholders of any one or more
Series of Class A Notes to sanction a modification of, or any
waiver or authorisation of any breach, or proposed breach of, any
of the provisions of the Issuer Transaction Documents or the
Conditions of such Notes shall take effect unless it has been
sanctioned by an Extraordinary Resolution of the Class B
Noteholders, an Extraordinary Resolution of the Class M
Noteholders, an Extraordinary Resolution of the Class C
Noteholders and an Extraordinary Resolution of the Class D
Noteholders, in each case of each Series, or the Note Trustee is
of the opinion that it would not be materially prejudicial to the
respective interests of the Class B Noteholders, the Class M
Noteholders, the Class C Noteholders and the Class D Noteholders
of each Series;
(ii) after the Class A Notes have been fully redeemed, no Extraordinary
Resolution of the Noteholders of any one or more Series of Class B
Notes to sanction a modification of, or any waiver or
authorisation of any breach, or proposed breach of, any of the
provisions of the Issuer Transaction Documents or the Conditions
of such Notes shall take effect unless it has been sanctioned by
an Extraordinary Resolution of the Class M Noteholders, an
Extraordinary Resolution of the Class C Noteholders and an
Extraordinary Resolution of the Class D Noteholders, in each case
of each Series, or the Note Trustee is of the opinion that it
would not be materially prejudicial to the respective interests of
68
the Class M Noteholders, the Class C Noteholders and the Class D
Noteholders of each Series;
(iii) after the Class A Notes and Class B Notes have been fully
redeemed, no Extraordinary Resolution of the Noteholders of any
one or more Series of Class M Notes to sanction a modification of,
or any waiver or authorisation of any breach, or proposed breach
of, any of the provisions of the Issuer Transaction Documents or
the Conditions of such Notes shall take effect unless it has been
sanctioned by an Extraordinary Resolution of the Class C
Noteholders and an Extraordinary Resolution of the Class D
Noteholders, in each case of each Series, or the Note Trustee is
of the opinion that it would not be materially prejudicial to the
respective interests of the Class C Noteholders, and the Class D
Noteholders of each Series; and
(iv) after the Class A Notes, Class B Notes and Class M Notes have been
fully redeemed, no Extraordinary Resolution of the Noteholders of
any one or more Series of Class C Notes to sanction a modification
of, or any waiver or authorisation of any breach, or proposed
breach of, any of the provisions of the Issuer Transaction
Documents or the Conditions of such Notes shall take effect unless
it has been sanctioned by an Extraordinary Resolution of the Class
D Noteholders, in each case of each Series, or the Note Trustee is
of the opinion that it would not be materially prejudicial to the
interests of the Class D Noteholders of each Series.
20. Extraordinary Resolution binds all Noteholders
Subject to the provisos to paragraph 19 (Powers), any Extraordinary
Resolution passed at a Meeting duly convened and held in accordance with
the Issuer Trust Deed shall be binding upon the Noteholders of all
classes whether present or not present at such Meeting and whether or
not voting and each of them shall be bound to give effect thereto
accordingly and the passing of any such Extraordinary Resolution shall
be conclusive evidence that the circumstances justify the passing
thereof. Notice of the result of the voting on any Extraordinary
Resolution duly considered by the Noteholders shall be given by the
Master Issuer to the Noteholders in accordance with Condition 14 (Notice
to Noteholders) within 14 days of such result being known provided that
the non-publication of such notice shall not invalidate such result.
21. Additional Meeting Provisions
Notwithstanding the foregoing, the following additional provisions shall
apply to a Class of Notes issued (and remaining outstanding) in more
than one Series.
(i) Class A Notes
In respect of the Class A Notes, subject to sub-paragraph (vi):
(a) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class A Notes of
one Series only shall be deemed to have been duly passed if
passed at a meeting of the holders of the Class A Notes of
that Series;
69
(b) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class A Notes of
any two or more Series but does not give rise to a conflict
of interest between the holders of such two or more Series
of Class A Notes, shall be deemed to have been duly passed
if passed at a single meeting of the holders of such two or
more series of Class A Notes; and
(c) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class A Notes of
any two or more Series and gives or may give rise to a
conflict of interest between the holders of such two or more
Series of Class A Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting
of the holders of such two or more Series of Class A Notes,
it shall be passed at separate meetings of the holders of
such two or more Series of Class A Notes.
(ii) Class B Notes
In respect of the Class B Notes, subject to sub-paragraph (vi):
(a) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class B Notes of
one Series only shall be deemed to have been duly passed if
passed at a meeting of the holders of the Class B Notes of
that Series;
(b) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class B Notes of
any two or more Series but does not give rise to a conflict
of interest between the holders of such two or more Series
of Class B Notes, shall be deemed to have been duly passed
if passed at a single meeting of the holders of such two or
more series of Class B Notes; and
(c) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class B Notes of
any two or more Series and gives or may give rise to a
conflict of interest between the holders of such two or more
Series of Class B Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting
of the holders of such two or more Series of Class B Notes,
it shall be passed at separate meetings of the holders of
such two or more Series of Class B Notes.
(iii) Class M Notes
In respect of the Class M Notes subject to sub-paragraph (vi):
(a) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class M Notes of
one Series only shall be deemed to have been duly passed if
passed at a meeting of the holders of the Class M Notes of
that Series;
70
(b) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class M Notes of
any two or more Series but does not give rise to a conflict
of interest between the holders of such two or more Series
of Class M Notes, shall be deemed to have been duly passed
if passed at a single meeting of the holders of such two or
more series of Class M Notes; and
(c) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class M Notes of
any two or more Series and gives or may give rise to a
conflict of interest between the holders of such two or more
Series of Class M Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting
of the holders of such two or more Series of Class M Notes,
it shall be passed at separate meetings of the holders of
such two or more Series of Class M Notes.
(iv) Class C Notes
In respect of the Class C Notes, subject to sub-paragraph (vi):
(a) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class C Notes of
one Series only shall be deemed to have been duly passed if
passed at a meeting of the holders of the Class C Notes of
that Series;
(b) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class C Notes of
any two or more Series but does not give rise to a conflict
of interest between the holders of such two or more Series
of Class C Notes, shall be deemed to have been duly passed
if passed at a single meeting of the holders of such two or
more series of Class C Notes; and
(c) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class C Notes of
any two or more Series and gives or may give rise to a
conflict of interest between the holders of such two or more
Series of Class C Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting
of the holders of such two or more Series of Class C Notes,
it shall be passed at separate meetings of the holders of
such two or more Series of Class C Notes.
(v) Class D Notes
In respect of the Class D Notes subject to sub-paragraph (vi):
(a) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class D Notes of
one Series only shall be deemed to have been duly passed if
passed at a meeting of the holders of the Class D Notes of
that Series;
71
(b) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class D Notes of
any two or more Series but does not give rise to a conflict
of interest between the holders of such two or more Series
of Class D Notes, shall be deemed to have been duly passed
if passed at a single meeting of the holders of such two or
more series of Class D Notes; and
(c) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Class D Notes of
any two or more Series and gives or may give rise to a
conflict of interest between the holders of such two or more
Series of Class D Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting
of the holders of such two or more Series of Class D Notes,
it shall be passed at separate meetings of the holders of
such two or more Series of Class D Notes.
(vi) Sub-classes of Notes
In respect of a Class of Notes of any Series constituting two or
more sub-classes,
(a) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of the Notes of one
sub-class only of such Class, shall be deemed to have been
duly passed if passed at a meeting of the holders of the
Notes of such sub-class;
(b) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of more than one
sub-class of Notes of such Class but does not give rise to a
conflict of interest between the holders of such sub-classes
of Notes, shall be deemed to have been duly passed if passed
at a single meeting of the holders of all such sub-classes
of Notes; and
(c) a resolution which, in the sole opinion of the Note Trustee
affects the interests of the holders of more than one
sub-class of Notes of such Class and gives or may give rise
to a conflict of interest between the holders of such
sub-classes of Notes, shall be deemed to have been duly
passed only if, in lieu of being passed at a single meeting
of the holders of such sub-classes of Notes, it shall be
passed at separate meetings of the holders of such
sub-classes of Notes.
(vii) Programme Resolution
A Programme Resolution shall be deemed to have been duly passed
only if passed at a single meeting of all Series of the applicable
Class of Notes.
22. Minutes
Minutes of all resolutions and proceedings at every Meeting shall be
made and entered in books to be from time to time provided for that
purpose by the Master Issuer and any such minutes as aforesaid if
purporting to be signed by the Chairman
72
of the Meeting at which such resolutions were passed or proceedings
transacted shall be conclusive evidence of the matters therein contained
and until the contrary is proved every such Meeting in respect of the
proceedings of which minutes have been made shall be deemed to have been
duly held and convened and all resolutions passed or proceedings
transacted thereat to have been duly passed or transacted.
23. Further Regulations
Subject to all other provisions of the Issuer Trust Deed, the Note
Trustee may without the consent of the Master Issuer or the
Noteholders:-
(i) prescribe such further regulations regarding the requisitioning
and/or the holding of Meetings of Noteholders and attendance and
voting thereat as the Note Trustee may in its sole discretion
think fit; and
(ii) interpret the Issuer Conditions in the context of the more
detailed provisions set out herein.
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EXECUTION PAGE
IN WITNESS WHEREOF this Trust Deed has been executed as a deed and delivered
by the parties hereto on the day and year first above written.
as Master Issuer
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
GRANITE MASTER ISSUER PLC )
acting by two directors )
- -------------------------
for and on behalf of
LDC Securitisation Director No. 1 Limited
Director
Name:
- -------------------------
for and on behalf of
LDC Securitisation Director No. 2 Limited
Director
Name:
as Note Trustee
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
THE BANK OF NEW YORK )
by its duly authorised signatory )
- -------------------------------
Name:
74