Ex. 4.6.3
Terms and conditions of the notes
The following are the terms and conditions (the "Conditions", and any
reference to a "Condition" shall be construed accordingly) of the Notes in the
form (subject to amendment) which will be incorporated by reference into each
Global Note Certificate and each Individual Note Certificate, in the latter
case only if permitted by the relevant stock exchange or other relevant
authority (if any) and agreed by the Issuer and the relevant Dealer(s) at the
time of issue but, if not so permitted and agreed, such individual Note
Certificate will have endorsed thereon or attached thereto such Conditions.
The Final Terms in relation to each Series and Class of Notes may specify
other terms and conditions which shall, to the extent so specified or to the
extent inconsistent with these Conditions, replace or modify these Conditions
for the purpose of such Notes. The applicable Final Terms (or the relevant
provisions thereof) will be endorsed upon, or attached to, each Global Note
Certificate and Individual Note Certificate.
The Notes are constituted by a deed or deeds supplemental to the
Issuer Trust Deed. The security for the Notes is created pursuant to, and on
the terms set out in, the Issuer Deed of Charge. By the Issuer Paying Agent
and Agent Bank Agreement, provision is made for, inter alia, the payment of
principal and interest in respect of the Notes.
References herein to the "Notes" shall, unless the context otherwise
requires, be references to all the Notes issued by the Issuer and constituted
by the Issuer Trust Deed and shall mean:
(i) in relation to any Notes of a Series and Class represented
by a Global Note Certificate, units of the lowest Specified
Denomination in the Specified Currency in each case of such
Series and Class;
(ii) any Global Note Certificates; and
(iii) any Individual Note Certificates issued in exchange for a
Global Note Certificate.
Notes constituted by the Issuer Trust Deed are issued in series (each
a "Series") and each Series comprises one or more classes of Notes. Each
Series of Notes is subject to Final Terms. The Final Terms in relation to each
Series and Class of Notes (or the relevant provisions thereof) will be
endorsed upon, or attached to, such Notes and will supplement these Conditions
in respect of such Notes and may specify other terms and conditions which
shall, to the extent so specified or to the extent inconsistent with these
Conditions, replace or modify these Conditions for the purpose of such Notes.
References to the "applicable Final Terms" are, in relation to a Series and
Class of Notes, to the Final Terms (or the relevant provisions thereof)
attached to or endorsed on such Notes.
The statements in these Conditions include summaries of, and are
subject to, the detailed provisions of the Issuer Trust Deed, the Issuer Deed
of Charge and the Issuer Paying Agent and Agent Bank Agreement.
Copies of the Issuer Trust Deed, the Issuer Deed of Charge, the
Issuer Paying Agent and Agent Bank Agreement and each of the other Transaction
Documents are available for inspection during normal business hours at the
registered office of the issuer, being Fifth Floor, 100 Wood Street, London
EC2V 7EX and the specified office for the time being of (i) the Principal
Paying Agent, being at 19 January, 2005, 5 Carmelite Street, London EC4Y OPA
and (ii) the US Paying Agent, being at 19 January, 2005, 14th Floor, 388
Greenwich Street, New York, New York 10013. Copies of the Final Terms of each
Series of Notes are obtainable during normal business hours at the registered
office of the issuer and the specified office for the time being of (i) the
Principal Paying Agent and (ii) the US Paying Agent and any Noteholder must
produce evidence satisfactory to the relevant Paying Agent as to its holding
of Notes and identity.
The Holders of any Series and Class of Notes are entitled to the
benefit of, are bound by, and are deemed to have notice of all the provisions
of, and definitions contained or incorporated in, the Issuer Trust Deed, the
Issuer Deed of Charge, the Issuer Paying Agent and Agent Bank Agreement, each
of the other Transaction Documents and
the applicable Final Terms and to have notice of each other Final Terms
relating to each other Series and Class of Notes.
A glossary of definitions appears in Condition 18 of these
Conditions.
References herein to the Class A Noteholders, the Class B
Noteholders, the Class M Noteholders, the Class C Noteholders and the Class D
Noteholders shall, in each case and unless specified otherwise, be references
to the Holders of the Notes of all Series of the applicable Class.
1. Form, Denomination, Register, Title and Transfers
(A) Form and Denomination
The US Notes will initially be offered and sold pursuant to a
registration statement filed with the United States Securities and Exchange
Commission. The Reg S Notes will initially be offered and sold outside the
United States to non-US persons pursuant to Reg S.
Each Series and Class of Notes will be issued in the Specified
Currency and in the Specified Denomination. Each Series and Class of US Notes
will be initially represented by a US Global Note Certificate, which, in the
aggregate, will represent the Principal Amount Outstanding from time to time
of such Series and Class of US Notes. Each Series and Class of Reg S Notes
will be initially represented by a Reg S Global Note Certificate which, in the
aggregate, will represent the Principal Amount Outstanding from time to time
of such Series and Class of the Reg S Notes.
Each Series and Class of Notes may be Fixed Rate Notes, Floating Rate
Notes, Zero Coupon Notes, Index Linked Interest Notes, Dual Currency Interest
Notes or a combination of any of the foregoing, depending upon the Interest
Basis shown in the applicable Final Terms.
Each Series and Class of Notes may be Index Linked Redemption Notes,
Dual Currency Redemption Notes, Bullet Redemption Notes, Scheduled Redemption
Notes, Controlled Amortisation Notes, Pass-Through Notes or a combination of
any of the foregoing, depending upon the Redemption/Payment Basis shown in the
applicable Final Terms.
Global Note Certificates will be exchanged for Individual Note
Certificates in definitive registered form only under certain limited
circumstances (as described in the relevant Global Note Certificate). If
Individual Note Certificates are issued, they will be serially numbered and
issued in an aggregate principal amount equal to the Principal Amount
Outstanding of the relevant Global Note Certificates and in registered form
only.
In the case of a Series and Class of Notes with more than one
Specified Denomination, Notes of one Specified Denomination may not be
exchanged for Notes of such Series and Class of another Specified
Denomination.
(B) Register
The Registrar will maintain the Register in respect of the Notes in
accordance with the provisions of the Issuer Paying Agent and Agent Bank
Agreement. In these Conditions, the "Holder" of a Note means the person in
whose name such Note is for the time being registered in the Register (or, in
the case of a joint holding, the first named thereof). A Note Certificate will
be issued to each Noteholder in respect of its registered holding. Each Note
Certificate will be numbered serially with an identifying number which will be
recorded in the Register.
(C) Title
The Holder of each Note shall (except as otherwise required by law)
be treated by the Issuer, the Note Trustee, the Agent Bank and any Agent as
the absolute owner of such Note for all purposes (whether or not it is overdue
and regardless of any notice of ownership, trust or any other interest
therein, any writing on the Note Certificate relating
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thereto (other than the endorsed form of transfer) or any notice of any
previous loss or theft of such Note Certificate) and no person shall be liable
for so treating such Holder.
(D) Transfers
Subject as provided otherwise in this Condition 1(D), a Note may be
transferred upon surrender of the relevant Note Certificate, with the endorsed
form of transfer duly completed, at the Specified Office of the Registrar or
the Transfer Agent, together with such evidence as the Registrar or (as the
case may be) such Transfer Agent may reasonably require to prove the title of
the transferor and the authority of the individuals who have executed the form
of transfer; provided, however, that a Note may not be transferred unless the
principal amount of Notes transferred and (where not all of the Notes held by
a Holder are being transferred) the principal amount of the balance of Notes
not transferred are Authorised Holdings. Where not all the Notes represented
by the surrendered Note Certificate are the subject of the transfer, a new
Note Certificate in respect of the balance of the Notes will be issued to the
transferor.
Within five Commercial Business Days of such surrender of a Note
Certificate, the Registrar will register the transfer in question and deliver
a new Note Certificate of a like principal amount to the Notes transferred to
each relevant Holder at its Specified Office or (as the case may be) the
Specified Office of the Transfer Agent or (at the request and risk of any such
relevant Holder) by uninsured first class mail (and by airmail if the Holder
is overseas) to the address specified for such purpose by such relevant
Holder. In this paragraph, "Commercial Business Day" means a day on which
commercial banks are open for business in the city where the Registrar or (as
the case may be) Transfer Agent has its Specified Office.
The transfer of a Note will be effected without charge by or on
behalf of the Issuer, the Registrar or the Transfer Agent but against such
indemnity as the Registrar or (as the case may be) such Transfer Agent may
require in respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such transfer.
Noteholders may not require transfers of Notes to be registered
during the period of 15 days ending on the due date for any payment of
principal or interest in respect of the Notes.
All transfers of Notes and entries on the Register are subject to the
detailed regulations concerning the transfer of Notes scheduled to the Issuer
Paying Agent and Agent Bank Agreement. The regulations may be changed by the
Issuer with the prior written approval of the Note Trustee and the Registrar.
A copy of the current regulations will be mailed (free of charge) by the
Registrar to any Noteholder who requests in writing a copy of such
regulations.
2. Status, Priority and Security
(A) Status
The Notes of each Series and Class are direct, secured and
unconditional obligations of the Issuer and will at all times rank pari passu
and pro rata without preference or priority amongst themselves.
Subject to the provisions of Conditions 4 and 5 and subject to the
other payment conditions set out in the applicable Final Terms and the other
Transaction Documents:
(i) the Class A Notes of each Series will rank pari passu and
pro rata without any preference or priority among the Class
A Notes of each Series but in priority to the Class B Notes,
the Class M Notes, the Class C Notes and the Class D Notes
of any Series;
(ii) the Class B Notes of each Series will rank pari passu and
pro rata without any preference or priority among the Class
B Notes of each Series but in priority to the Class M Notes,
the Class C Notes and the Class D Notes of any Series;
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(iii) the Class M Notes of each Series will rank pari passu and
pro rata without any preference or priority among the Class
M Notes of each Series but in priority to the Class C Notes
and the Class D Notes of any Series;
(iv) the Class C Notes of each Series will rank pari passu and
pro rata without any preference or priority among the Class
C Notes of each Series but in priority to the Class D Notes
of any Series; and
(v) the Class D Notes of each Series will rank pari passu and
pro rata without any preference or priority among the Class
D Notes of each series.
(B) Conflict between the classes of Notes
The Issuer Trust Deed contains provisions requiring the Note Trustee
to have regard to the interests of the Class A Noteholders, the Class B
Noteholders, the Class M Noteholders, the Class C Noteholders and the Class D
Noteholders equally as regards all powers, trusts, authorities, duties and
discretions of the Note Trustee under these Conditions or any of the Issuer
Transaction Documents (except where expressly provided otherwise), but
requiring the Note Trustee to have regard (except as expressly provided
otherwise):
(i) for so long as there are any Class A Notes outstanding (of
any Series), only to the interests of the Class A
Noteholders if, in the opinion of the Note Trustee, there is
or may be a conflict between the interests of the Class A
Noteholders and the interests of the Class B Noteholders
and/or the interests of the Class M Noteholders and/or the
interests of the Class C Noteholders and/or the interests of
the Class D Noteholders (of that Series or of any other
Series);
(ii) subject to (i) above and for so long as there are any Class
B Notes outstanding (of any Series), only to the interests
of the Class B Noteholders if, in the opinion of the Note
Trustee there is or may be a conflict between the interests
of the Class B Noteholders and the interest of the Class M
Noteholders and/or the interests of the Class C Noteholders
and/or the interests of the Class D Noteholders (of that
Series or of any other Series);
(iii) subject to (i) and (ii) above and for so long as there are
any Class M Notes outstanding (of any Series), only to the
interests of the Class M Noteholders if, in the opinion of
the Note Trustee, there is or may be a conflict between the
interests of the Class M Noteholders and the interests of
the Class C Noteholders and/or the interests of the Class D
Noteholders (of that Series or of any other Series); and
(iv) subject to (i), (ii) and (iii) above and for so long as
there are any Class C Notes outstanding (of any Series),
only to the interests of the Class C Noteholders if, in the
opinion of the Note Trustee, there is or may be a conflict
between the interests of the Class C Noteholders and the
Class D Noteholders (of that Series or of any other Series).
The Issuer Trust Deed also contains provisions:
(a) limiting the powers of the Class B Noteholders, the Class M
Noteholders, the Class C Noteholders and the Class D
Noteholders (in each case, of any Series), inter alia, to
request or direct the Note Trustee to take any action or to
pass an effective Extraordinary Resolution according to the
effect thereof on the interests of the Class A Noteholders
(of that Series or of any other Series). Except in certain
circumstances described in Condition 11, the Issuer Trust
Deed contains no such limitation on the powers of the Class
A Noteholders, the exercise of which will be binding on the
Class B Noteholders, the Class M Noteholders, the Class C
Noteholders and the Class D Noteholders respectively,
irrespective of the effect thereof on their respective
interests;
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(b) limiting the powers of the Class M Noteholders, the Class C
Noteholders and the Class D Noteholders (in each case, of
any Series), inter alia, to request or direct the Note
Trustee to take any action or to pass an effective
Extraordinary Resolution according to the effect thereof on
the interests of the Class B Noteholders (of that Series or
of any other Series). Except in certain circumstances
described above and in Condition 11, the Issuer Trust Deed
contains no such limitation on the powers of the Class B
Noteholders, the exercise of which will be binding on the
Class M Noteholders, the Class C Noteholders and the Class D
Noteholders, respectively, irrespective of the effect
thereof on their respective interests;
(c) limiting the powers of the Class C Noteholders and the Class
D Noteholders (in each case, of any Series), inter alia, to
request or direct the Note Trustee to take any action or to
pass an effective Extraordinary Resolution according to the
effect thereof on the interests of the Class M Noteholders
(of that Series or of any other Series). Except in certain
circumstances described above and in Condition 11, the
Issuer Trust Deed contains no such limitation on the powers
of the Class M Noteholders, the exercise of which will be
binding on the Class C Noteholders and the Class D
Noteholders irrespective of the effect thereof on their
respective interests; and
(d) limiting the powers of the Class D Noteholders (of any
Series), inter alia, to request or direct the Note Trustee
to take any action or to pass an effective Extraordinary
Resolution according to the effect thereof on the interests
of the Class C Noteholders (of that Series or of any other
Series). Except in certain circumstances described above and
in Condition 11, the Issuer Trust Deed contains no such
limitation on the powers of the Class C Noteholders, the
exercise of which will be binding on the Class D Noteholders
irrespective of the effect thereof on their respective
interests.
The Note Trustee, in determining whether the exercise by it of any
right, power, trust, authority, duty or discretion under or in relation to
these Conditions or any of the Transaction Documents will not be materially
prejudicial to the interests of the Noteholders (or any Series and Class
thereof), will have regard to confirmations (if issued) from each of the
Rating Agencies that the then current ratings of the applicable Series and
Class of Notes would not be reduced, withdrawn or qualified by such exercise
and any other confirmation which it considers, in its sole and absolute
discretion, is appropriate.
(C) Security
As security for, inter alia, the payment of all monies payable in
respect of the Notes, the issuer has entered into the Issuer Deed of Charge
creating the Issuer Security in favour of the Issuer Security Trustee for
itself and on trust for, inter alios, the Note Trustee and the Noteholders.
3. Covenants
Save with the prior written consent of the Note Trustee or unless
provided in or contemplated under these Conditions or any of the Transaction
Documents to which the Issuer is a party, the Issuer shall not, so long as any
Note remains outstanding:
(A) Negative Pledge
create or permit to subsist any mortgage, standard security, pledge,
lien, charge or other Security Interest whatsoever (unless arising by
operation of law), upon the whole or any part of its assets (including any
uncalled capital) or its undertakings, present or future;
(B) Disposal of Assets
sell, assign, transfer, lease or otherwise dispose of, or deal with,
or grant any option or present or future right to acquire all or any of its
properties, assets, or undertakings or
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any interest, estate, right, title or benefit therein or thereto or agree or
attempt or purport to do any of the foregoing;
(C) Equitable Interest
permit any person other than itself and the Issuer Security Trustee
(as to itself and on behalf of the Issuer Secured Creditors) to have any
equitable or beneficial interest in any of its assets or undertakings or any
interest, estate, right, title or benefit therein;
(D) Bank Accounts
have an interest in any bank account, other than an Issuer Bank
Account or a Swap Collateral Account;
(E) Restrictions on Activities
carry on any business other than as described in the Base Prospectus
(as revised, supplemented and/or amended from time to time) relating to the
issue of the Notes and the related activities described therein or as
contemplated in the Transaction Documents relating to the issue of the Notes;
(F) Borrowings
incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness or obligation
of any person;
(G) Merger
consolidate or merge with any other person or convey or transfer
substantially all of its properties or assets to any other person;
(H) Waiver or Consent
permit the validity or effectiveness of any of the Issuer Trust Deed
or the Issuer Deed of Charge or the priority of the security interests created
thereby to be amended, terminated, postponed, waived or discharged, or permit
any other person whose obligations form part of the Issuer Security to be
released from such obligations;
(I) Employees or premises
have any employees or premises or subsidiaries;
(J) Dividends and Distributions
pay any dividend or make any other distribution to its shareholders
or issue any further shares or alter any rights attaching to its shares as at
the date of the Issuer Deed of Charge;
(K) Purchase Notes
purchase or otherwise acquire any Note or Notes; or
(L) United States activities
engage in any activities in the United States (directly or through
agents), or derive any income from United States sources as determined under
United States income tax principles, or hold any property if doing so would
cause it to be engaged in a trade or business within the United States as
determined under United States income tax principles.
4. Interest
(A) Interest on Fixed Rate Notes
Each Fixed Rate Note bears interest on its Principal Amount
Outstanding from (and including) the Interest Commencement Date at the rate(s)
per annum equal to the Rate(s) of Interest payable, subject as provided in
these Conditions, in arrear on the Note
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Payment Date(s) in each year specified for such Note in the applicable Final
Terms up to (and including) the Final Maturity Date.
Except as provided in the applicable Final Terms, the amount of
interest payable in respect of any Fixed Rate Note on each Note Payment Date
for a Fixed Interest Period ending on (but excluding) such date will amount to
the Fixed Coupon Amount. Payments of interest on any Note Payment Date will,
if so specified for such Note in the applicable Final Terms, amount to the
Broken Amount so specified.
If interest is required to be calculated in respect of any Fixed Rate
Note for a period other than a Fixed Interest Period, such interest shall be
calculated by applying the Rate of Interest specified for such Note in the
applicable Final Terms to the Principal Amount Outstanding on such Note,
multiplying such sum by the applicable Day Count Fraction, and rounding the
resultant figure to the nearest sub-unit of the relevant Specified Currency,
half of any such sub-unit being rounded upwards or otherwise in accordance
with applicable market convention.
"Day Count Fraction" means, in respect of the calculation of an
amount of interest for any Fixed Rate Note in accordance with this Condition
4(A):
(i) if "Actual/Actual (ISMA)" is specified for such Note in the
applicable Final Terms:
(a) in the case of Notes where the number of days in
the relevant period from (and including) the most
recent Note Payment Date for such Notes (or, if
none, the Interest Commencement Date) to (but
excluding) the relevant Note Payment Date (the
"Accrual Period") is equal to or shorter than the
Determination Period during which the Accrual
Period ends, the number of days in such Accrual
Period divided by the product of (1) the number of
days in such Determination Period and (2) the
number of Determination Dates (as specified in the
applicable Final Terms) that would occur in one
calendar year; or
(b) in the case of Notes where the Accrual Period is
longer than the Determination Period during which
the Accrual Period ends, the sum of:
(1) the number of days in such Accrual Period
falling in the Determination Period in
which the Accrual Period begins divided by
the product of (x) the number of days in
such Determination Period and (y) the
number of Determination Dates that would
occur in one calendar year; and
(2) the number of days in such Accrual Period
falling in the next Determination Period
divided by the product of (x) the number
of days in such Determination Period and
(y) the number of Determination Dates that
would occur in one calendar year; and
(ii) if "30/360" is specified for such Note in the applicable
Final Terms, the number of days in the period from (and
including) the most recent Note Payment Date for such Note
(or, if none, the Interest Commencement Date) to (but
excluding) the relevant Note Payment Date (such number of
days being calculated on the basis of a year of 360 days
with twelve 30-day months) divided by 360.
(B) Interest on Floating Rate Notes and Index Linked Interest Notes
(i) Note Payment Dates
Each Floating Rate Note or Index Linked Interest Note bears interest
on its Principal Amount Outstanding from (and including) the Interest
Commencement Date and such interest will be payable in arrear on the Note
Payment Date(s) in each year specified for such Note in the applicable Final
Terms. Such interest will be payable in respect of each Interest Period.
If a Business Day Convention is specified for a Floating Rate Note or
Index Linked Interest Note in the applicable Final Terms and (x) if there is
no numerically corresponding
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day in the calendar month in which a Note Payment Date should occur or (y) if
any Note Payment Date would otherwise fall on a day which is not a Business
Day, then, if the Business Day Convention specified is:
(1) in any case where Specified Periods are specified in
accordance with Condition 4(B)(i)(b) above, the "Floating
Rate Convention", the Note Payment Date for such Note (i) in
the case of (x) above, shall be the last day that is a
Business Day in the relevant month and the provisions of (B)
below shall apply mutatis mutandis or (ii) in the case of
(y) above, shall be postponed to the next day which is a
Business Day unless it would thereby fall into the next
calendar month, in which event (A) such Note Payment Date
shall be brought forward to the immediately preceding
Business Day and (B) each subsequent Note Payment Date shall
be the last Business Day in the month which falls the
Specified Period after the preceding applicable Note Payment
Date occurred; or
(2) the "Following Business Day Convention", the Note Payment
Date for such note shall be postponed to the next day which
is a Business Day; or
(3) the "Modified Following Business Day Convention", the Note
Payment Date for such Note shall be postponed to the next
day which is a Business Day unless it would thereby fall
into the next calendar month, in which event such Note
Payment Date shall be brought forward to the immediately
preceding Business Day; or
(4) the "Preceding Business Day Convention", the Note Payment
Date for such Note shall be brought forward to the
immediately preceding Business Day.
(ii) Rate of Interest
The Rate of Interest payable from time to time in respect of a
Floating Rate Note or Index Linked Interest Note will be determined in the
manner specified for such Note in the applicable Final Terms.
(a) ISDA Determination for Floating Rate Notes Where "ISDA
Determination" is specified for such Note in the applicable
Final Terms as the manner in which the Rate of Interest is
to be determined, the Rate of Interest for each Interest
Period will be the relevant ISDA Rate plus or minus (as
indicated for such Note in the applicable Final Terms) the
Margin (if any). For the purposes of this sub-paragraph (a),
"ISDA Rate" for an Interest Period means a rate equal to the
Floating Rate that would be determined by the Agent Bank or
other person specified in the applicable Final Terms under
an interest rate swap transaction if the Agent Bank or that
other person were acting as Calculation Agent for that swap
transaction under the terms of an agreement incorporating
the ISDA Definitions and under which:
(1) the Floating Rate Option is as specified for such
Note in the applicable Final Terms;
(2) the Designated Maturity is the period specified for
such Note in the applicable Final Terms; and
(3) the relevant Reset Date is either (i) if the
applicable Floating Rate Option is based on LIBOR
or EURIBOR for a currency, the first day of that
Interest Period, or (ii) in any other case, as
specified for such Note in the applicable Final
Terms.
For the purposes of this sub-paragraph (a),
"Floating Rate", "Calculation Agent", "Floating
Rate Option", "Designated Maturity" and "Reset
Date" have the meanings given to those terms in the
ISDA Definitions.
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(b) Screen Rate Determination for Floating Rate Notes Where
"Screen Rate Determination" is specified for a Floating Rate
Note in the applicable Final Terms as the manner in which
the Rate of Interest is to be determined for such Note, the
Rate of Interest for each Interest Period will, subject as
provided below, be either:
(1) the offered quotation (if there is only one
quotation on the Relevant Screen Page); or
(2) the arithmetic mean (rounded if necessary to the
fifth decimal place, with 0.000005 being rounded
upwards) of the offered quotations,
(expressed as a percentage rate per annum) for the
Reference Rate which appears or appear, as the case
may be, on the Relevant Screen Page as at 11.00
a.m. (London time, in the case of LIBOR, or
Brussels time, in the case of EURIBOR) on the
Interest Determination Date in question plus or
minus the Margin (if any), all as determined by the
Agent Bank. If five or more of such offered
quotations are available on the Relevant Screen
Page, the highest (or, if there is more than one
such highest quotation, one only of such
quotations) and the lowest (or, if there is more
than one such lowest quotation, one only of such
quotations) shall be disregarded by the Agent Bank
for the purpose of determining the arithmetic mean
(rounded as provided above) of such offered
quotations.
The Issuer Paying Agent and Agent Bank Agreement
contains provisions for determining the Rate of
Interest pursuant to this sub-paragraph (b) in the
event that the Relevant Screen Page is not
available or if, in the case of (1) above, no such
offered quotation appears or, in the case of (2)
above, fewer than three such offered quotations
appear, in each case as at the time specified in
the preceding paragraph.
If the Reference Rate from time to time in respect
of a Floating Rate Note is specified for such Note
in the applicable Final Terms as being other than
LIBOR or EURIBOR, the Rate of Interest in respect
of such Note will be determined as provided for
such Note in the applicable Final Terms.
(iii) Minimum Rate of Interest and/or Maximum Rate of Interest
If the applicable Final Terms specifies a Minimum Rate of Interest
for a Floating Rate Note or Index Linked Interest Note for any Interest
Period, then, in the event that the Rate of Interest for such Note in respect
of such Interest Period determined in accordance with the provisions of
paragraph (ii) above is less than such Minimum Rate of Interest, the Rate of
Interest for such Note for such Interest Period shall be such Minimum Rate of
Interest.
If the applicable Final Terms specifies a Maximum Rate of Interest
for such Note for any Interest Period, then, in the event that the Rate of
Interest for such Note in respect of such Interest Period determined in
accordance with the provisions of paragraph (ii) above is greater than such
Maximum Rate of Interest, the Rate of Interest for such Note for such interest
Period shall be such Maximum Rate of Interest.
(iv) Determination of Rate of Interest and calculation of Interest Amounts
The Agent Bank, in the case of Floating Rate Notes, and the
Calculation Agent (as specified in the applicable Final Terms), in the case of
Index Linked Interest Notes, will at or as soon as practicable after each time
at which the Rate of Interest is to be determined, determine the Rate of
Interest for the relevant Interest Period. In the case of Index Linked
Interest Notes, the Calculation Agent will notify the Agent Bank of the Rate
of Interest for the relevant Interest Period as soon as practicable after
calculating the same.
The Agent Bank will calculate the amount of interest payable on the
Floating Rate Notes or Index Linked Interest Notes in respect of each
Specified Denomination (each an
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"Interest Amount") for the relevant Interest Period. Each Interest Amount
shall be calculated by applying the Rate of Interest to the Principal Amount
Outstanding of each Note, multiplying such sum by the applicable Day Count
Fraction, and rounding the resultant figure to the nearest sub-unit of the
relevant Specified Currency, half of any such sub-unit being rounded upwards
or otherwise in accordance with applicable market convention.
"Day Count Fraction" means, in respect of the calculation of an
amount of interest for a Floating Rate Note or Index Linked Interest Note in
accordance with this Condition 4(B)(iv) for any Interest Period:
(a) if "Actual/365" or "Actual/Actual (ISDA)" is specified for
such Note in the applicable Final Terms, the actual number
of days in the Interest Period divided by 365 (or, if any
portion of that Interest Period falls in a leap year, the
sum of (A) the actual number of days in that portion of the
Interest Period falling in a leap year divided by 366 and
(B) the actual number of days in that portion of the
Interest Period falling in a non-leap year divided by 365);
(b) if "Actual/365 (Fixed)" is specified for such for such Note
in the applicable Final Terms, the actual number of days in
the Interest Period divided by 365;
(c) if "Actual/365 (Sterling)" is specified for such Note in the
applicable Final Terms, the actual number of days in the
Interest Period divided by 365 or, in the case of a Note
Payment Date falling in a leap year, 366;
(d) if "Actual/360" is specified for such Note in the applicable
Final Terms, the actual number of days in the Interest
Period divided by 360;
(e) if "30/360", "360/360" or "Bond Basis" is specified for such
Note in the applicable Final Terms, the number of days in
the Interest Period divided by 360 (the number of days to be
calculated on the basis of a year of 360 days with twelve
30-day months (unless (a) the last day of the Interest
Period is the 31st day of a month but the first day of the
Interest Period is a day other than the 30th or 31st day of
a month, in which case the month that includes that last day
shall not be considered to be shortened to a 30-day month,
or (b) the last day of the Interest Period is the last day
of the month of February, in which case the month of
February shall not be considered to be lengthened to a
30-day month)); and
(f) if "30E/360" or "Eurobond Basis" is specified for such Note
in the applicable Final Terms, the number of days in the
Interest Period divided by 360 (the number of days to be
calculated on the basis of a year of 360 days with twelve
30-day months, without regard to the date of the first day
or last day of the Interest Period unless, in the case of
the final Interest Period, the Final Maturity Date (or, as
the case may be, Extended Due for Note Payment Date) is the
last day of the month of February, in which case the month
of February shall not be considered to be lengthened to a
30-day month).
(v) Notification of Rate of Interest and Interest Amounts
The Agent Bank will cause the Rate of Interest and each Interest
Amount for each Interest Period and the relevant Note Payment Date to be
notified to the Note Trustee, the Issuer Security Trustee, the Issuer Cash
Manager, the Paying Agents, the Registrar and to any stock exchange or other
relevant competent authority or quotation system on which the relevant
Floating Rate Notes or Index Linked Interest Notes are for the time being
listed, quoted and/or traded or by which they have been admitted to listing
and to be published in accordance with Condition 14 as soon as possible after
their determination but in no event later than the fourth Business Day
thereafter. Each Interest Amount and Note Payment Date so notified may
subsequently be amended (or appropriate alternative arrangements made by way
of adjustment) without notice in the event of an extension or shortening of
the Interest Period. Any such amendment or alternative arrangements will be
promptly notified to the Note Trustee and each stock exchange or other
relevant authority
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on which the relevant Floating Rate Notes or Index Linked Interest Notes are
for the time being listed or by which they have been admitted to listing and
to Noteholders in accordance with Condition 14.
(vi) Determination or Calculation by Note Trustee
If for any reason at any relevant time after the Closing Date, the
Agent Bank or, as the case may be, the Calculation Agent defaults in its
obligation to determine the Rate of Interest for a Floating Rate Note or Index
Linked Interest Note or the Agent Bank defaults in its obligation to calculate
any Interest Amount for such Note in accordance with sub-paragraph (ii)(a) or
(b) above or as otherwise specified for such Note in the applicable Final
Terms, as the case may be, and in each case in accordance with paragraph (iv)
above, the Note Trustee shall determine the Rate of Interest at such rate as,
in its absolute discretion (having such regard as it shall think fit to the
foregoing provisions of this Condition, but subject always to any Minimum Rate
of Interest or Maximum Rate of Interest specified for such Note in the
applicable Final Terms), it shall deem fair and reasonable in all the
circumstances or, as the case may be, the Note Trustee shall calculate the
Interest Amount(s) in such manner as it shall deem fair and reasonable in all
the circumstances and each such determination or calculation shall be deemed
to have been made by the Agent Bank or the Calculation Agent, as the case may
be.
(vii) Certificates to be final
All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions of this Condition 4(B), whether by the Agent
Bank or the Calculation Agent or the Note Trustee shall (in the absence of
wilful default, bad faith or manifest error) be binding on the Issuer, the
Issuer Cash Manager, the Principal Paying Agent, the Calculation Agent, the
other Paying Agents, the Note Trustee and all Noteholders and (in the absence
of wilful default or bad faith) no liability to the Issuer or the Noteholders
shall attach to the Agent Bank or the Calculation Agent or the Note Trustee in
connection with the exercise or non-exercise by it of its powers, duties and
discretions pursuant to such provisions.
(C) Interest on Dual Currency Interest Notes
In the case of a Dual Currency Interest Note where the rate or amount
of interest fails to be determined by reference to an exchange rate, the rate
or amount of interest shall be determined in the manner specified for such
Note in the applicable Final Terms.
(D) Accrual of interest
Interest (if any) will cease to accrue on each Note (or in the case
of the redemption of part only of a Note, that part only of such Note) on the
due date for redemption thereof unless, upon due presentation thereof, payment
of principal is improperly withheld or refused in which event, interest will
continue to accrue as provided in the Issuer Trust Deed.
(E) Deferred Interest
To the extent that, subject to and in accordance with the relevant
Issuer Priority of Payments, the funds available to the Issuer to pay interest
on any Series and Class of Notes (other than the most senior class of Notes of
any Series then outstanding) on a Note Payment Date (after discharging the
Issuer's liabilities of a higher priority) are insufficient to pay the full
amount of such interest, payment of the shortfall attributable to such Series
and Class of Notes ("Deferred Interest") will not then fall due but will
instead be deferred until the first Note Payment Date for such Notes
thereafter on which sufficient funds are available (after allowing for the
Issuer's liabilities of a higher priority and subject to and in accordance
with the relevant Issuer Priority of Payments) to fund the payment of such
Deferred Interest to the extent of such available funds.
Such Deferred Interest will accrue interest ("Additional Interest")
at the rate of interest applicable from time to time to the applicable Series
and Class of Notes and
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payment of any Additional Interest will also be deferred until the first Note
Payment Date for such Notes thereafter on which funds are available (after
allowing for the Issuer's liabilities of a higher priority subject to and in
accordance with the relevant Issuer Priority of Payments) to the Issuer to pay
such Additional Interest to the extent of such available funds.
Amounts of Deferred Interest and Additional Interest shall not be
deferred beyond the Final Maturity Date of the applicable Series and Class of
Notes, when such amounts will become due and payable.
Payments of interest due on a Note Payment Date in respect of the
most senior class of Notes of any Series then outstanding will not be
deferred. In the event of the delivery of an Issuer Enforcement Notice (as
described in Condition 9), the amount of interest in respect of such Notes
that was due but not paid on such Note Payment Date will itself bear interest
at the applicable rate until both the unpaid interest and the interest on that
interest are paid as provided in the Issuer Trust Deed.
5. Redemption, Purchase and Cancellation
(A) Final Redemption
Unless previously redeemed in full as provided in this Condition 5,
the Issuer shall redeem a Series and Class of Notes at their then Principal
Amount Outstanding together with all accrued interest on the Final Maturity
Date in respect of such Notes.
The Issuer may not redeem such Notes in whole or in part prior to
their Final Maturity Date except as provided in paragraph (B), (D), (E) or (F)
below, but without prejudice to Condition 9.
(B) Mandatory Redemption of the Notes in Part
On each Note Payment Date, other than a Note Payment Date on which a
Series and Class of Notes are to be redeemed under Conditions 5(A), (D), (E)
or (F), the issuer shall repay principal in respect of such Notes in an amount
equal to:
(i) (a) prior to the earlier to occur of the Step-Up Date (if
any) in respect of such Notes and a Pass-Through Trigger
Event (and subject to the terms of the Issuer Deed of Charge
regarding the funding, replenishment and application of the
Issuer Reserve Fund) the lower of:
(1) the amount due to be paid on such Note Payment Date
as specified for such Notes in the applicable Final
Terms; and
(2) the amount (if any) repaid on the corresponding
Loan Payment Date in respect of the related Loan
Tranche and pursuant to the Global Intercompany
Loan Agreement and which is available, under the
terms of the Issuer Deed of Charge and the Issuer
Cash Management Agreement to repay principal in
respect of such Notes converted, where the
Specified Currency for such Notes is not Sterling,
into the Specified Currency at the Specified
Currency Exchange Rate for such Notes;
provided that, in the case of any Series and Class
of Pass-Through Notes, the amount of principal to
be repaid by the Issuer in respect of such Notes on
the applicable Note Payment Date shall be
calculated in accordance with sub-paragraph 2
above; or
(b) following the earlier to occur of the Step-Up Date
(if any) in respect of such Notes and a
Pass-Through Trigger Event (whereupon each
following Monthly Payment Date shall constitute a
Note Payment Date) and subject to the terms of the
Issuer Deed of Charge regarding the funding,
replenishment and application of the Issuer Reserve
Fund, the amount (if any) repaid on the
corresponding Loan Payment Date in respect of the
related Loan Tranche and pursuant to the Global
Intercompany Loan
12
Agreement converted, where the Specified Currency
for such Notes is not Sterling, into the Specified
Currency at the Specified Currency Exchange Rate
for such Notes; and
(ii) the amount standing to the credit of the Issuer Reserve Fund
which is available (subject to the terms of the Issuer Deed
of Charge) to repay principal in respect of such Notes
converted, where the Specified Currency for such Notes is
not Sterling, into Sterling at the Specified Currency
Exchange Rate for such Notes.
To the extent that there are insufficient funds available to the
Issuer to repay the amount due to be paid on such Note Payment Date the Issuer
will be required to repay the shortfall, to the extent that it receives funds
therefor (and subject to the terms of the Issuer Deed of Charge and the Issuer
Cash Management Agreement) on subsequent Note Payment Dates in respect of such
Notes.
(C) Note Principal Payments and Principal Amount Outstanding
The principal amount redeemable (the "Note Principal Payment") in
respect of each Note of a particular Series and Class on any Note Payment Date
under Condition 5(B) above shall be a proportion of the amount required as at
that Note Payment Date to be applied in redemption of such Series and Class of
Notes on such date equal to the proportion that the Principal Amount
Outstanding of the relevant Note bears to the aggregate Principal Amount
Outstanding of such Series and Class of Notes rounded down to the nearest
sub-unit of the Specified Currency; provided always that no such Note
Principal Payment may exceed the Principal Amount Outstanding of the relevant
Note.
On each Note Determination Date the Issuer shall determine (or cause
the Issuer Cash Manager to determine) (i) the amount of any Note Principal
Payment payable in respect of each Note of the relevant series and class on
the immediately following Note Payment Date and (ii) the Principal Amount
Outstanding of each such Note which shall be the Specified Denomination less
(in each case) the aggregate amount of all Note Principal Payments in respect
of such Note that has been paid since the Closing Date and on or prior to that
Note Determination Date (the "Principal Amount Outstanding") and (iii) the
fraction expressed as a decimal to the fifth decimal point (the "Pool
Factor"), of which the numerator is the Principal Amount Outstanding of that
Note (as referred to in (ii) above) and the denominator is the Specified
Denomination. Each determination by or on behalf of the Issuer of any Note
Principal Payment of a Note, the Principal Amount Outstanding of a Note and
the Pool Factor shall in each case (in the absence of wilful default, bad
faith or manifest error) be final and binding on all persons.
The Issuer will cause each determination of the Note Principal
Payment and the Principal Amount Outstanding and the Pool Factor in respect of
a Series of Class of Notes to be notified forthwith, and in any event not
later than 1.00 p.m. (London time) on the Business Day immediately succeeding
the Note Determination Date, to the Note Trustee, the Issuer Security Trustee,
the Paying Agents, the Registrar, the Agent Bank and (for so long as such
Notes are listed on one or more stock exchanges) the relevant stock exchanges,
and will cause notice of each determination of the Note Principal Payment and
the Principal Amount Outstanding to be given to Noteholders in accordance with
Condition 14 by no later than the Business Day after the relevant Note Payment
Date.
If the Issuer does not at any time for any reason determine (or cause
the Issuer Cash Manager to determine) a Note Principal Payment or the
Principal Amount Outstanding in accordance with the preceding provisions of
this paragraph, such Note Principal Payment and/or Principal Amount
Outstanding may be determined by the Note Trustee in accordance with this
Condition 6(C) in the manner the Note Trustee in its discretion considers fair
and reasonable in the circumstances, having regard to this Condition 6(C), and
each such determination or calculation shall be deemed to have been made by
the Issuer. Any such determination shall (in the absence of wilful default,
bad
13
faith or manifest error) be binding on the Issuer, the Issuer Cash Manager
and the Noteholders.
(D) Optional Redemption in Full
Subject to the provisos below, upon giving not more than 60 nor less
than 30 days' prior notice to the Note Trustee and the Noteholders in
accordance with Condition 14, the Issuer may redeem a Series and Class of
Notes at their aggregate Redemption Amount together with any accrued and
unpaid interest in respect thereof on the following dates:
(i) the date specified as the Step-Up Date for such Notes in the
applicable Final Terms and on any Note Payment Date for such
Notes thereafter; or
(ii) on such Note Payment Date on which the aggregate Principal
Amount Outstanding of such Notes and all other Classes of
Notes of the same Series is less than 10 per cent. of the
aggregate Principal Amount Outstanding of such Series of
Notes as at the Closing Date on which such Series of Notes
were issued,
PROVIDED THAT (in either of the cases above), on or prior to giving
any such notice, the Issuer shall have provided to the Note Trustee a
certificate signed by two directors of the Issuer to the effect that (a) it
will have the funds, not subject to any interest of any other person, required
to redeem such Notes as aforesaid and any amounts required to be paid in
priority to or pari passu with such Notes outstanding in accordance with the
terms and conditions of the Issuer Deed of Charge and the Issuer Cash
Management Agreement, and (b) the Repayment Tests will be satisfied following
the making of such redemptions.
(E) Optional Redemption for Tax and other Reasons
If the Issuer at any time satisfies the Note Trustee immediately
prior to the giving of the notice referred to below that on the next Note
Payment Date either:
(i) the Issuer would be required to deduct or withhold from any
payment of principal or interest or any other amount under a
Series and Class of Notes any amount for or on account of
any present or future taxes, duties, assessments or
governmental charges of whatever nature; or
(ii) Funding 2 would be required to deduct or withhold from
amounts due in respect of the Loan Tranche under the Global
Intercompany Loan Agreement which was funded by such Notes
any amount on account of any present or future taxes,
duties, assessments or governmental charges of whatever
nature; and
(iii) in relation to either the events described in (i) and (ii)
above, such obligation of the Issuer or Funding 2 (as the
case may be) cannot be avoided by the Issuer or Funding 2
(as the case may be) taking reasonable measures available to
it,
then the Issuer shall use its reasonable endeavours to arrange the
substitution of a company incorporated in another jurisdiction approved by the
Note Trustee as principal debtor under such Notes and/or as lender of such
Loan Tranche as the case may be, upon the Note Trustee being satisfied that
(1) such substitution will not be materially prejudicial to the Noteholders,
and upon the Issuer Security Trustee being satisfied that (1) that the
position of the Issuer Secured Creditors will not thereby be adversely
affected, and (2) that such substitution would not require registration of any
new security under United States securities laws or would materially increase
the disclosure requirements under United States law or the costs of issuance.
Only if the Issuer is unable to arrange a substitution will the Issuer be
entitled to redeem the Notes as described in this Condition 5(E).
Subject to the proviso below, if the Issuer is unable to arrange a
substitution as described above and, as a result, one or more of the events
described in (i) or (ii) above (as the case may be) is continuing, then the
Issuer may, having given not more than 60 nor less than 30 days' notice to the
Note Trustee and the Noteholders in accordance with
14
Condition 14, redeem all (but not some only) of such Notes on the immediately
succeeding Note Payment Date for such Notes at their aggregate Redemption
Amount together with any accrued and unpaid interest in respect thereof
provided that (in either case), prior to giving any such notice, the Issuer
shall have provided to the Note Trustee:
(a) a certificate signed by two directors of the Issuer stating
the circumstances referred to in (i) or (ii) and (iii) above
prevail and setting out details of such circumstances; and
(b) an opinion in form and substance satisfactory to the Note
Trustee of independent legal advisors of recognised standing
to the effect that the issuer has or will become obliged to
pay such additional amounts as a result of such change or
amendment.
The Note Trustee shall be entitled to accept such certificate and
opinion as sufficient evidence of the satisfaction of the circumstance set out
in (i) or (ii) and (iii) above, in which event they shall be conclusive and
binding on the Noteholders. The Issuer may only redeem such Notes as
aforesaid, if on or prior to giving such notice, the Issuer shall have
provided to the Note Trustee a certificate signed by two directors of the
Issuer to the effect that (a) it will have the funds, not subject to any
interest of any other person, required to redeem such Notes as aforesaid and
any amounts required to be paid in priority to or pari passu with such Notes
outstanding in accordance with the terms and conditions of the Issuer Deed of
Charge and the Issuer Cash Management Agreement, and (b) the Repayment Tests
will be satisfied following the making of such redemptions.
In addition to the foregoing, if at any time it becomes unlawful for
the Issuer to make, fund or allow to remain outstanding the Global
Intercompany Loan, then the Issuer may require Funding 2 upon giving not more
than 60 nor less than 30 days' (or such shorter period as may be required
under any relevant law) prior written notice to the Issuer (whereupon the
Issuer shall give notice to the Noteholders in accordance with Condition 14),
the Issuer Security Trustee and the Note Trustee, to prepay the Global
Intercompany Loan on any Loan Payment Date subject to and in accordance with
the provisions of the Global Intercompany Loan Agreement to the extent
necessary to cure such illegality. Such monies received by the Issuer shall be
used to redeem the Notes in full, together with any accrued and unpaid
interest, on the equivalent Note Payment Date.
(F) Optional Redemption for Implementation of Capital Requirements Directive
If the Capital Requirements Directive, as described in the
consultation paper on the EU's implementation of the New Basel Capital Accord
published on 14 July 2004 by the European Commission, has been implemented in
the United Kingdom, whether by rule of law, recommendation or best practice or
by any other regulation, then on the Note Payment Date specified in the
applicable Final Terms (if any) and on any Note Payment Date for such Notes
thereafter, the Issuer may, by giving not more than 60 nor less than 30 days'
(or such shorter period as may be required under any relevant law) prior
notice to the Note Trustee and the Noteholders in accordance with Condition
14, redeem all (but not some only) of the Notes at their aggregate Redemption
Amount together with any accrued and unpaid interest in respect thereof on the
next following Note Payment Date for such Notes, provided that an Issuer
Enforcement Notice has not been served. The Issuer may only redeem the Notes
as aforesaid, if on or prior to giving such notice, the Issuer shall have
provided to the Note Trustee a certificate signed by two directors of the
Issuer to the effect that (a) it will have the funds, not subject to any
interest of any other person, required to redeem such Notes as aforesaid and
any amounts required to be paid in priority to or pari passu with such Notes
outstanding in accordance with the terms and conditions of the Issuer Deed of
Charge and the Cash Management Agreement, and (b) the Repayment Tests will be
satisfied following the making of such redemptions.
15
(G) Redemption Amounts
For the purposes of this Condition 5, "Redemption Amount" means, in
respect of any Series and Class of Notes, the amount specified in relation to
such Notes in the applicable Final Terms or, if not so specified:
(i) in respect of each Note (other than a Zero Coupon Note), the
Principal Amount Outstanding of such Note; and
(ii) in respect of each Zero Coupon Note, an amount (the
"Amortised Face Amount") calculated in accordance with the
following formula:
Redemption Amount = RP x (1 + AY) y
where:
RP = the Reference Price;
AY = the Accrual Yield expressed as a decimal; and
y = a fraction, the numerator of which is equal to the number
of days (calculated on the basis of a 360-day year
consisting of 12 months of 30 days each) from (and
including) the first Closing Date of the applicable Series
and Class of Notes to (but excluding) the date fixed for
redemption or, as the case may be, the date upon which such
Note becomes due and payable and the denominator of which is
360.
If the amount payable in respect of any Zero Coupon Note upon
redemption of such Zero Coupon Note pursuant to Condition 5(A), (B), (D), (E)
or (F) above or upon its becoming due and repayable as provided in Condition 9
is improperly withheld or refused, the amount due and repayable in respect of
such Note shall be the amount calculated as provided in paragraph (b) above as
though the reference therein to the date fixed for the redemption or, as the
case may be, the date upon which such Note becomes due and payable were
replaced by reference to the date which is the earlier of:
(i) the date on which all amounts due in respect of such Note
have been paid; and
(ii) the date on which the full amount of the moneys payable in
respect of such Note has been received by the Principal
Paying Agent or the Note Trustee or the Registrar and notice
to that effect has been given to the Noteholders in
accordance with Condition 14.
6. Payments
(A) Payment of Interest and Principal
Payments of principal shall be made by cheque in the Specified
Currency, drawn on a Designated Bank, or upon application by a Holder of the
relevant Note to the Specified Office of the Principal Paying Agent not later
than the fifth Business Day before the Record Date (as defined in Condition
6(G)), by transfer to a Designated Account maintained by the payee with a
Designated Bank and (in the case of final redemption) upon surrender (or, in
the case of part payment only, endorsement) of the relevant Note Certificates
at the Specified Office of any Paying Agent.
Payments of interest shall be made by cheque in the Specified
Currency drawn on a Designated Bank, or upon application by a Holder of the
relevant Note to the Specified Office of the Principal Paying Agent not later
than the fifth Business Day before the Record Date (as defined in Condition
6(G)), by transfer to a Designated Account maintained by the payee with a
Designated Bank and (in the case of interest payable on final redemption) upon
surrender (or, in the case of part payment only, endorsement) of the relevant
Note Certificates at the Specified Office of any Paying Agent.
16
(B) Laws and Regulations
Payments of principal and interest in respect of the Notes are
subject in all cases to any fiscal or other laws and regulations applicable
thereto. Noteholders will not be charged commissions or expenses on payments.
(C) Payment of Interest following a failure to pay Principal
If payment of principal is improperly withheld or refused on or in
respect of any Note or part thereof, the interest which continues to accrue in
respect of such Note in accordance with Condition 4 will be paid in accordance
with this Condition 6.
(D) Change of Agents
The initial Principal Paying Agent, the Registrar, the Transfer Agent
and the initial Paying Agents and their respective initial Specified Offices
are listed at the end of these Conditions. The Issuer reserves the right,
subject to the prior written approval of the Note Trustee, at any time to vary
or terminate the appointment of the Principal Paying Agent, the Registrar, the
Transfer Agent and the US Paying Agent and to appoint additional or other
Paying Agents. The Issuer will at all times maintain a Paying Agent with a
Specified Office in London and a US Paying Agent with a Specified Office in
New York and a Registrar. Except where otherwise provided in the Issuer Trust
Deed, the Issuer will cause at least 30 days' notice of any change in or
addition to the Paying Agents, the Transfer Agent or the Registrar or their
Specified Offices to be given in accordance with Condition 14 and will notify
the Rating Agencies of such change or addition.
(E) No payment on non-Business Day
Where payment is to be made by transfer to a Designated Account,
payment instructions (for value the due date or, if the due date is not a
Payment Business Day, for value the next succeeding Payment Business Day) will
be initiated and, where payment is to be made by cheque, the cheque will be
mailed (i) (in the case of payments of principal and interest payable on
redemption) on the later of the due date for payment and the day on which the
relevant Note is surrendered (or, in the case of part payment only, endorsed)
at the Specified Office of a Paying Agent and (ii) (in the case of payments of
interest payable other than on redemption) on the due date for payment. A
Holder of a Note shall not be entitled to any interest or other payment in
respect of any delay in payment resulting from (A) the due date for a payment
not being a Payment Business Day or (B) a cheque mailed in accordance with
this Condition 6(E) arriving after the due date for payment or being lost in
the mail.
(F) Partial Payment
If a Paying Agent makes a partial payment in respect of any Note, the
Issuer shall procure and the Registrar will ensure that the amount and date of
such payment are noted on the Register and, in the case of partial payment
upon presentation of a Note Certificate, that a statement indicating the
amount and date of such payment is endorsed on the relevant Note Certificate.
(G) Record Date
Each payment in respect of a Note will be made to the persons shown
as the Holder in the Register at the opening of business in the place of the
Registrar's Specified Office on the fifteenth day before the due date for such
payment (the "Record Date"). Where payment in respect of a Note is to be made
by cheque, the cheque will be mailed to the address shown as the address of
the Holder in the Register at the opening of business on the relevant Record
Date.
(H) Payment of Interest
Subject as provided otherwise in these Conditions, if interest is not
paid in respect of a Note of any class on the date when due and payable (other
than because the due date is not a Payment Business Day) or by reason of
non-compliance with Condition 6(A), then
17
such unpaid interest shall itself bear interest at the Rate of interest
applicable from time to time to such Note until such interest and interest
thereon are available for payment and notice thereof has been duly given in
accordance with Condition 14.
7. Prescription
Claims against the Issuer for payment of interest and principal on
redemption shall be prescribed and become void if the relevant Note
Certificates are not surrendered for payment within a period of 10 years from
the relevant date in respect thereof. After the date on which a payment under
a Note becomes void in its entirety, no claim may be made in respect thereof.
In this Condition 7, the "relevant date", in respect of a payment under a
Note, is the date on which the payment in respect thereof first becomes due or
(if the full amount of the monies payable in respect of those payments under
all the Notes due on or before that date has not been duly received by the
Principal Paying Agent, the US Paying Agent or the Note Trustee on or prior to
such date) the date on which the full amount of such monies having been so
received or notice to that effect is duly given to Noteholders in accordance
with Condition 14.
8. Taxation
All payments in respect of the Notes will be made without withholding
or deduction for, or on account of, any present or future taxes, duties or
charges of whatsoever nature unless the Issuer or any relevant Paying Agent is
required by applicable law to make any payment in respect of the Notes subject
to any such withholding or deduction. In that event, the Issuer or such Paying
Agent shall make such payment after such withholding or deduction has been
made and shall account to the relevant authorities for the amount so required
to be withheld or deducted. No Paying Agent nor the Issuer will be obliged to
make any additional payments to Noteholders in respect of such withholding or
deduction.
The occurrence of the Issuer or any Paying Agent being required to
make a withholding or deduction in the circumstances outlined in the previous
paragraph shall not constitute a Note Event of Default.
The Issuer will treat the US Notes as indebtedness for US federal
income tax purposes. Each Holder of a US dollar denominated Note, by the
acceptance thereof, agrees to treat such US dollar denominated Note as
indebtedness for US federal income tax purposes.
9. Events of Default
(A) Class A Noteholders
The Note Trustee in its absolute discretion may (and if so requested
in writing by the Holders of not less than 25 per cent. in aggregate Principal
Amount Outstanding of the Class A Notes (which for this purpose and the
purpose of any Extraordinary Resolution referred to in this Condition 9(A)
means the Class A Notes of all Series constituted by the Issuer Trust Deed) or
if so directed by or pursuant to an Extraordinary Resolution passed at a
meeting of the Holders of the Class A Notes shall), subject in each case to
being indemnified and/or secured to its satisfaction, give notice (a "Class A
Issuer Enforcement Notice") to the Issuer, the Issuer Security Trustee and the
Funding 2 Security Trustee of a Note Event of Default (as defined below)
declaring (in writing) the Class A Notes and all other Notes to be due and
repayable (and they shall forthwith become due and repayable) at any time
after the happening of any of the following events which is continuing or
unwaived:
(i) default being made for a period of seven Business Days in
the payment of any amount of principal of the Class A Notes
of any Series when and as the same ought to be paid in
accordance with these Conditions or default being made for a
period of fifteen Business Days in the payment of any amount
of interest on the Class A Notes of any Series when and as
the same ought to be paid in accordance with these
Conditions; or
18
the Class B Notes (which for this purpose and the purpose of any Extraordinary
Resolution referred to in this Condition 9(B), means the Class B Notes of all
Series constituted by the Issuer Trust Deed) or if so directed by or pursuant
to an Extraordinary Resolution passed at a meeting of the Holders of the Class
B Notes shall), subject in each case to it being indemnified and/or secured to
its satisfaction, give notice (a "Class B Issuer Enforcement Notice") to the
Issuer, the Issuer Security Trustee and the Funding 2 Security Trustee of a
Note Event of Default (as defined below) and declaring (in writing) the Class
B Notes and all other Notes to be due and repayable (and they shall forthwith
become due and repayable) at any time after the happening of any of the
following events:
(a) default being made for a period of seven Business Days in
the payment of any amount of principal of the Class B Notes
of any Series when and as the same ought to be paid in
accordance with these Conditions or default being made for a
period of fifteen Business Days in the payment of any amount
of interest on the Class B Notes of any Series when and as
the same ought to be paid in accordance with these
Conditions; or
(b) the occurrence of any of the events in Condition 9(A)(ii),
(iii), (iv), (v) or (vi) above provided that the references
in Condition 9(A)(ii), Condition 9(A) (iv) and Condition
9(A)(vi) to Class A Notes shall be read as references to
Class B Notes.
(B) Class M Noteholders
This Condition 9(C) shall have no effect if, and for as long as, any
Class A Notes or Class B Notes of any Series are outstanding. Subject thereto,
for so long as any Class M Notes are outstanding, the Note Trustee in its
absolute discretion may (and if so requested in writing by the Holders of not
less than 25 per cent. in aggregate Principal Amount Outstanding of the Class
M Notes (which for this purpose and the purpose of any Extraordinary
Resolution referred to in this Condition 9(C), means the Class C Notes of all
Series constituted by the Issuer Trust Deed) or if so directed by or pursuant
to an Extraordinary Resolution passed at a meeting of the Holders of the Class
M Notes shall), subject in each case to it being indemnified and/or secured to
its satisfaction, give notice (a "Class M Note Issuer Enforcement Notice") to
the Issuer, the Issuer Security Trustee and the Funding 2 Security Trustee of
a Note Event of Default (as defined below) and declaring (in writing) the
Class M Notes and all other Notes to be due and repayable (and they shall
forthwith become due and repayable) at any time after the happening of any of
the following events:
(a) default being made for a period of seven Business Days in
the payment of any amount of principal of the Class M Notes
of any Series when and as the same ought to be paid in
accordance with these Conditions or default being made for a
period of fifteen Business Days in the payment of any amount
of interest on the Class M Notes of any Series when and as
the same ought to be paid in accordance with these
Conditions; or
(b) the occurrence of any of the events in Condition 9(A)(ii),
(iii), (iv), (v) or (vi) above provided that the references
in Condition 9(A)(ii), Condition 9(A)(iv) and Condition 9(A)
(vi) to Class A Notes shall be read as references to Class M
Notes.
(C) Class C Noteholders
This Condition 9(D) shall have no effect if, and for as long as, any Class A
Notes, Class B Notes or Class M Notes of any Series are outstanding. Subject
thereto, for so long as any Class C Notes are outstanding, the Note Trustee in
its absolute discretion may (and if so requested in writing by the Holders of
not less than 25 per cent. in aggregate Principal Amount Outstanding of the
Class C Notes (which for this purpose and the purpose of any Extraordinary
Resolution referred to in this Condition 9(D), means the
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10. Enforcement of Notes
(A) Enforcement
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 Issuer or any other person as it may think fit to enforce the
provisions of the Notes, the Issuer Trust Deed (including these Conditions) or
any of the other Transaction Documents to which it is a party and may, at its
discretion and without notice, at any time after the Issuer Security has
become enforceable (including after the service of an Issuer Enforcement
Notice in accordance with Condition 9), instruct the Issuer Security Trustee
to take such steps as it may think fit to enforce the Issuer Security. The
Note Trustee shall not be bound to take such steps or institute such
proceedings unless:
(i) (subject in all cases to restrictions contained in the
Issuer Trust Deed to protect the interests of any higher
ranking class of Noteholders) it shall have been so directed
by an Extraordinary Resolution of the Class A Noteholders,
the Class B Noteholders, the Class M Noteholders, the Class
C Noteholders or the Class D Noteholders or so requested in
writing by the Holders of at least one quarter in aggregate
Principal Amount Outstanding of the Class A Notes, Class B
Notes, Class M Notes, Class C Notes or Class D Notes; and
(ii) it shall have been indemnified and/or secured to its
satisfaction.
The Issuer Security Trustee shall not be bound to take such steps or
take any such other action unless it is so directed by the Note Trustee and
indemnified and/or secured to its satisfaction.
Amounts available for distribution after enforcement of the Issuer
Security shall be distributed in accordance with the terms of the Issuer Deed
of Charge.
No Noteholder may institute any proceedings against the Issuer to
enforce its rights under or in respect of the Notes, the Issuer Trust Deed or
the Issuer Deed of Charge unless (1) the Note Trustee or the Issuer Security
Trustee, as applicable, has become bound to institute proceedings and has
failed to do so within 30 days of becoming so bound and (2) such failure is
continuing; provided that, no Class B Noteholder, Class M Noteholder, Class C
Noteholder or Class D Noteholder will be entitled to commence proceedings for
the winding up or administration of the Issuer unless there are no outstanding
Notes of a class with higher priority, or if Notes of a class with higher
priority are outstanding, there is consent of Noteholders of not less than one
quarter of the aggregate principal amount of the Notes outstanding (as defined
in the Issuer Trust Deed) of the class or classes of Notes with higher
priority. Notwithstanding the foregoing and notwithstanding any other
provision of the Issuer Trust Deed, the right of any Noteholder to receive
payment of principal and interest on its Notes on or after the due date for
such principal or interest, or to institute suit for the enforcement of
payment of that principal or interest, may not be impaired or affected without
the consent of that Noteholder.
(B) Post Enforcement Call Option
In the event that:
(i) the Issuer Security is enforced and the Issuer Security
Trustee determines that (a) the proceeds of such
enforcement, after distribution of such proceeds to the
persons entitled thereto ranking in priority to the Notes
under the Issuer Deed of Charge and to the Noteholders (to
the extent entitled thereto), are insufficient to pay in
full all principal and interest and other amounts whatsoever
due in respect of the Notes and all other claims ranking
pari passu therewith (b) such proceeds of enforcement have
been so distributed in accordance with the terms of the
Issuer Deed of Charge and (c) there are no further assets
available to pay principal and interest and other amounts
whatsoever due in respect of the Notes; or
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(ii) 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
(iii) 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.
(3) Class M Notes
In respect of the Class M Notes, the Issuer Trust Deed provides that,
subject to Condition 11(A)(6):
(i) 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;
(ii) 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
(iii) 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.
(4) Class C Notes
In respect of the Class C Notes, the Issuer Trust Deed provides that,
subject to Condition 11(A)(6):
(i) 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;
(ii) 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
(iii) 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.
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(5) Class D Notes
In respect of the Class D Notes, the Issuer Trust Deed provides that,
subject to Condition 11(A)(6):
(i) 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;
(ii) 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
(iii) 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.
(6) Sub-classes of Notes
In respect of a Class of Notes of any Series constituting two or more
sub-classes, the Issuer Trust Deed provides that:
(i) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of 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;
(ii) 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
(iii) a resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders 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.
Subject as provided in the following paragraph, the quorum at any
meeting of the Noteholders of any Series and Class of Notes or any one or more
Series of Notes of the same Class convened to consider an Extraordinary
Resolution will be one or more persons holding or representing more than half
of the aggregate Principal Amount Outstanding of such Series and Class of
Notes or such one or more Series of Notes of the same Class or, at any
adjourned meeting, one or more persons being or representing Noteholders of
such Series and Class of Notes or such one or more Series of Notes the same
Class, whatever the aggregate Principal Amount Outstanding of the Notes so
held or represented.
The quorum at any meeting of the Noteholders for passing an
Extraordinary Resolution which includes the sanctioning of a Basic Terms
Modification shall be one or more persons holding or representing not less
than three quarters of the aggregate Principal Amount
22
Outstanding of the Notes of the relevant Series and Class or of the relevant
one or more Series of Notes of the same Class.
An Extraordinary Resolution passed at any meeting of Noteholders
shall be binding on all of the Noteholders of the relevant Series and Class or
of the relevant one or more Series of Notes of the same Class whether or not
they are present at the meeting.
In connection with any meeting of the Noteholders where the relevant
Notes (or any of them) are not denominated in Sterling, the Principal Amount
Outstanding of any Note not denominated in Sterling shall be converted into
Sterling at the relevant Specified Currency Exchange Rate.
A resolution signed by or on behalf of all the Noteholders of the
relevant Series and Class who for the time being are entitled to receive
notice of a meeting under the Issuer Trust Deed shall for all purposes be as
valid and effective as an Extraordinary Resolution passed at a meeting of such
Series and Class of Noteholders.
(B) Programme Resolution
Notwithstanding the provisions of Condition 11(A), any Extraordinary
Resolution of the Noteholders of any Class of Notes to direct the Note Trustee
to take any enforcement action pursuant to Condition 9 and Condition 10 (a
"Programme Resolution") shall only be capable of being passed at a single
meeting of the Noteholders of all Series of such Class of Notes. The quorum at
any such meeting for passing a Programme Resolution shall be one or more
persons holding or representing more than half of the aggregate Principal
Amount Outstanding of the Notes of such Class or, at any adjourned and
reconvened meeting, one or more persons being or representing Noteholders of
such Class of Notes, whatever the aggregate Principal Amount Outstanding of
such Class of Notes so held or represented by them.
A Programme Resolution passed at any meeting of all Series of any
Class of Notes shall be binding on all Noteholders of all Series of that Class
of Notes, whether or not they are present or represented at the meeting.
(C) Limitations on Noteholders
Subject as provided in Condition 11(D):
(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 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
23
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) no Extraordinary Resolution of 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).
(D) Approval of Modifications and Waivers by Noteholders
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.
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 the Class M Noteholders, the Class C Noteholders
and the Class D Noteholders of each Series.
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.
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.
24
(E) Modifications and Determinations by Note Trustee
The Note Trustee, may, without the consent of the Noteholders:
(i) agree to any modification of, or to the waiver or
authorisation of any breach or proposed breach of, the
Conditions of any Series and Class of Notes or any of the
Transaction Documents which is not in the opinion of the
Note Trustee, materially prejudicial to the interests of the
Noteholders of such Series and Class of Notes or of any
other Series and Class of Notes; or
(ii) determine that any Note Event of Default in respect of a
Series and Class of Notes shall not be treated as such
provided that, in any such case, it is not in the opinion of
the Note Trustee materially prejudicial to the interests of
the Noteholders of such Series and Class of Notes or of any
other Series and Class of Notes; or
(iii) agree to any modification of these Conditions or any of the
Transaction Documents which, in the opinion of the Note
Trustee, is of a formal, minor or technical nature or is to
correct a manifest error or an error established as such to
the satisfaction of the Note Trustee, or is to comply with
the mandatory provisions of law.
Any such modification, waiver, authorisation or determination shall
be binding on the Noteholders and, unless the Note Trustee, agrees otherwise,
any such modification shall be notified to the Noteholders and the Rating
Agencies in accordance with Condition 14 as soon as practicable thereafter.
(F) Redenomination
The Note Trustee may agree, without the consent of the Holders of the
Sterling Notes on or after the Specified Date (as defined below), to such
modifications to the Sterling Notes and the Issuer Trust Deed in respect of
redenomination of such Notes in euro and associated reconventioning,
renominalisation and related matters in respect of such Notes as may be
proposed by the Issuer (and confirmed by an independent financial institution
approved by the Note Trustee to be in conformity with then applicable market
conventions) and to provide for redemption at the euro equivalent of the
sterling principal amount of the Sterling Notes. For these purposes,
"Specified Date" means the date on which the United Kingdom participates in
the third stage of European economic and monetary union pursuant to the Treaty
establishing the European Community, as amended by the Treaty on European
Union, or otherwise participates in European economic and monetary union in a
manner with an effect similar to such third stage.
Any such modification shall be binding on the Holders of the Sterling
Notes and, unless the Note Trustee agrees otherwise, any such modification
shall be notified to such Noteholders in accordance with Condition 14 as soon
as practicable thereafter.
(G) Exercise of Note Trustee's Functions
Where the Note Trustee is required, in connection with the exercise
of its powers, trusts, authorities, duties and discretions under these
Conditions or any other issuer Transaction Document, to have regard to the
interests of the Noteholders (of a Class, Series or Series and Class thereof),
it shall have regard to the interests of such Noteholders as a class and, in
particular but without prejudice to the generality of the foregoing, the Note
Trustee shall not have regard to, or be in any way liable for, the
consequences of such exercise for individual Noteholders resulting from their
being for any purpose domiciled or resident in, or otherwise connected with,
or subject to the jurisdiction of, any particular territory. In connection
with any such exercise, the Note Trustee shall not be entitled to require, and
no Noteholder shall be entitled to claim, from the Issuer or any other person,
any indemnification or payment in respect of any tax consequence of any such
exercise upon individual Noteholders.
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12. Indemnification of the Note Trustee and the Issuer Security Trustee
The Transaction Documents contain provisions governing the
responsibility (and relief from responsibility) of the Note Trustee and the
Issuer Security Trustee and providing for their indemnification in certain
circumstances, including, among others, provisions relieving the Issuer
Security Trustee from taking enforcement proceedings or enforcing the Issuer
Security unless indemnified to its satisfaction. The Note Trustee and the
issuer Security Trustee are also entitled to be paid its costs and expenses in
priority to any interest payments to Noteholders.
The Note Trustee and the Issuer Security Trustee and their related
companies are entitled to enter into business transactions with the Issuer,
the Issuer Cash Manager, Northern Rock plc and/or the related companies of any
of them and to act as note trustee or security trustee for the Holders of any
new Notes and/or any other person who is a party to any Transaction Document
or whose obligations are comprised in the Issuer Security and/or any of its
subsidiary or associated companies without accounting for any profit resulting
therefrom.
The Note Trustee and the Issuer Security Trustee will not be
responsible for any loss, expense or liability which may be suffered as a
result of any assets comprised in the Issuer Security, or any deeds or
documents of title thereto, being uninsured or inadequately insured or being
held by clearing organisations or their operators or by intermediaries such as
banks, brokers or other similar persons on behalf of the Note Trustee or the
Issuer Security Trustee, as applicable.
Furthermore, the Note Trustee and the Issuer Security Trustee will be
relieved of liability for making searches or other inquiries in relation to
the assets comprising the Issuer Security. The Note Trustee and the Issuer
Security Trustee do not have any responsibility in relation to the legality
and the enforceability of the trust arrangements and the related Issuer
Security. Neither the Note Trustee nor the Issuer Security Trustee will be
obliged to take any action which might result in its incurring personal
liabilities. Neither the Note Trustee nor the Issuer Security Trustee is
obliged to monitor or investigate the performance of any other person under
the Transaction Documents and is entitled to assume, until it has actual
knowledge to the contrary, that all such persons are properly performing their
duties, unless it receives express notice to the contrary.
Neither the Note Trustee nor the Issuer Security Trustee will be
responsible for any deficiency which may arise because it is liable to tax in
respect of the proceeds of any Issuer Security.
13. Replacement of Notes
If Individual Note Certificates are lost, stolen, mutilated, defaced
or destroyed, the Noteholder can replace them at the Specified Office of any
Paying Agent subject to all applicable laws and stock exchange requirements.
The Noteholder will be required both to pay the expenses of producing a
replacement and to comply with the Issuer's, the Registrar's and the Paying
Agent's reasonable requests for evidence and indemnity.
If a Global Note Certificate is lost, stolen, mutilated, defaced or
destroyed, the Issuer will deliver a replacement Global Note Certificate to
the registered holder upon receipt of satisfactory evidence and surrender of
any defaced or mutilated Global Note Certificate. A replacement will only be
made upon payment of the expenses for a replacement and compliance with the
Issuer's, Registrar's and Paying Agents' reasonable requests as to evidence
and indemnity.
Defaced or mutilated Note Certificates must be surrendered before
replacements will be issued.
14. Notice to Noteholders
(A) Publication of Notice
Any notice to Noteholders shall be validly given if such notice is:
26
(i) sent to them by first class mail (or its equivalent) or (if
posted to a non-UK address) by airmail at the respective
addresses on the Register; and
(ii) published in The Financial Times; and
(iii) for so long as amounts are outstanding on the US Notes, in a
daily newspaper of general circulation in New York (which is
expected to be The New York Times);
or, if any of such newspapers set out above shall cease to be published or
timely publication therein shall not be practicable, in a leading English
language daily newspaper having general circulation in the United Kingdom or
the United States (as applicable) provided that if, at any time, the Issuer
procures that the information concerned in such notice shall be published on
the Relevant Screen, publication in the newspapers set out above or such other
newspaper or newspapers shall not be required with respect to such
information.
(B) Date of Publication
Any notices so published shall be deemed to have been given on the
fourth day after the date of posting, or as the case may be, on the date of
such publication or, if published more than once on different dates, on the
first date on which publication shall have been made in the newspaper or
newspapers in which (or on the Relevant Screen on which) publication is
required.
(C) Global Note Certificates
While the Notes are represented by Global Note Certificates, any
notice to noteholders will be validly given if such notice is provided in
accordance with Condition 14(A) or (at the option of the Issuer) if delivered
to DTC (in the case of the US Notes) or Euroclear and/or Clearstream,
Luxembourg (in the case of the Reg S Notes). Any notice delivered to the DTC
and/or Euroclear and/or Clearstream, Luxembourg will be deemed to be given on
the day of delivery.
(D) Note Trustee's Discretion to Select Alternative Method
The Note Trustee shall be at liberty to sanction some other method of
giving notice to the Noteholders or any Series or Class or category of them
if, in its opinion, such other method is reasonable having regard to market
practice then prevailing and to the requirements of the stock exchanges on
which the Notes are then admitted for trading and provided that notice of such
other method is given to the Noteholders in such manner as the Note Trustee
shall require.
15. Further Issues
The Issuer shall be at liberty from time to time, without the consent
of the Noteholders, to create and issue further Notes of a certain Class
having terms and conditions the same as the Notes of any Series of the same
Class or the same in all respects save for the amount and date of the first
payment of interest thereon, issue date and/or purchase price and so that the
same shall be consolidated and form a single Series and Class with the
outstanding Notes of such Series and Class.
16. Governing Law and Jurisdiction
The Transaction Documents and the Notes are governed by English law
unless specifically stated to the contrary. Certain provisions in the
Transaction Documents relating to property situated in Scotland are governed
by Scots law. Unless specifically stated to the contrary:
(i) the courts of England are to have non-exclusive jurisdiction
to settle any disputes which may arise out of or in
connection with the Notes and the Transaction Documents; and
27
(ii) the Issuer and the other parties to the Transaction
Documents irrevocably submit to the non-exclusive
jurisdiction of the courts of England.
17. Contracts (Rights of Third Parties) Act 1999
No person shall have any right to enforce any term or condition of
the Notes 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.
18. Definitions
Unless otherwise defined in these Conditions or unless the context
otherwise requires, in these Conditions the following words shall have the
following meanings and any other capitalised terms used in these Conditions
shall have the meanings ascribed to them or incorporated in the Issuer Trust
Deed or the Issuer Master Definitions Schedule. The provisions of Clause 2
(Interpretation and Construction) of the Issuer Master Definitions Schedule
are incorporated into and shall apply to these Conditions.
"A Loan Tranches" means the Loan Tranches made by the Issuer to
Funding 2 under the Global Intercompany Loan Agreement from the proceeds of
issue of the Class M Notes of any Series;
"AA Loan Tranches" means the Loan Tranches made by the Issuer to
Funding 2 under the Global Intercompany Loan Agreement from the proceeds of
issue of the Class B Notes of any Series;
"AAA Loan Tranches" means the Loan Tranches made by the Issuer to
Funding 2 under the Global Intercompany Loan Agreement from the proceeds of
issue of the Class A Notes of any Series;
"AAA Principal Deficiency Sub-Ledger" means the sub-ledger to the
Principal Deficiency Ledger which specifically records any principal in
respect of the AAA Loan Tranches;
"Accrual Yield" means, in respect of any Series and Class of Notes,
the yield specified as such for such Notes in the applicable Final Terms;
"Additional Business Centre" means, in respect of any Series and
Class of Notes, each place specified as such for such Notes in the applicable
Final Terms;
"Agents" means the Paying Agents, the Transfer Agent, the Registrar
and the Agent Bank;
"Agent Bank" means Citibank, N.A. in its capacity as agent bank at
its Specified Office or such other person for the time being acting as agent
bank under the Issuer Paying Agent and Agent Bank Agreement;
"Authorised Holding" means, in respect of the US Notes, $100,000 and
integral multiples of $1,000 in excess thereof or, in relation to a Series and
Class of Notes, as otherwise specified in the applicable Final Terms;
"Authorised Investments" means (i) Sterling gilt-edged investments
and (ii) Sterling demand or time deposits, certificates of deposit and
short-term debt obligations (including commercial paper) (which may include
deposits in any account which earns a rate of interest related to LIBOR)
provided that in all cases such investments have a maturity date of 90 days or
less and mature on or before the next following Note Payment Date and the
short-term unsecured, unguaranteed and unsubordinated debt obligations of the
issuing or guaranteeing entity or entity with which the demand or time
deposits are made (being an authorised institution under the Financial
Services and Markets Act 2000) are rated at least "A-1+" by Standard & Poor's,
"F1+" by Fitch and "P-1" by Moody's or which are otherwise acceptable to the
Rating Agencies (if they are notified in advance) to maintain the then current
ratings of the Notes;
28
"Base Prospectus" means the base prospectus of the Issuer from time
to time, the first being the base prospectus dated 26 August, 2005:
"Basic Terms Modification" means, in respect of any Series and Class
of Notes any modification which would have the effect of:
(a) reducing or cancelling of 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 Notes;
(b) altering the currency in which payments under such Notes are
to be made;
(c) altering the quorum or majority required to pass an
Extraordinary Resolution;
(d) altering the priority in which payments are made to the
noteholders of such Notes 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);
"BB Loan Tranche" means the Loan Tranches made by the Issuer to
Funding 2 under the Global Intercompany Loan Agreement from the proceeds of
issue of the Class D Notes of any Series;
"BBB Loan Tranches" means the Loan Tranches made by the Issuer to
Funding 2 under the Global Intercompany Loan Agreement from the proceeds of
issue of the Class C Notes of any Series;
"Broken Amount" means, in respect of any Series and Class of Notes,
the amount specified as such (if any) for such Notes in the applicable Final
Terms;
"Business Day" means a day which is:
(a) a day on which commercial banks and foreign exchange markets
settle payments and are open for general business (including
dealing in foreign exchange and foreign currency deposits)
in London and any Additional Business Centre specified in
the applicable Final Terms; and
(b) in the case of any sum payable, either (1) in relation to
any sum payable in a Specified Currency other than euro, a
day on which commercial banks and foreign exchange markets
settle payments and are open for general business (including
dealing in foreign exchange and foreign currency deposits)
in the principal financial centre of the country of the
relevant Specified Currency (if other than London and any
Additional Business Centre) and which if the Specified
Currency is Australian dollars or New Zealand dollars shall
be Sydney and Auckland, respectively or (2) in relation to
any Notes denominated or payable in euro, a day on which the
Trans-European Automated RealTime Gross Settlement Express
Transfer (TARGET) System (the "TARGET System") is open;
"Cash Management Agreement" means the cash management
agreement dated 26 March, 2001, among, amongst others, the
Cash Manager, the Mortgages Trustee, Funding 2 and the
Funding 2 Security Trustee;
"Cash Manager" means Northern Rock or such other person or persons
for the time being acting, under the cash management agreement, as agent,
inter alia, for the Mortgages Trustee, Funding 2 and (following enforcement of
the Funding 2 Security) the Funding 2 Security Trustee for the purposes of,
inter alia, managing all cash transactions and maintaining certain ledgers on
behalf of the Mortgages Trustee, Funding and (following enforcement of the
Funding 2 Security) the Funding 2 Security Trustee;
"Class" or "class" means, in relation to the Notes or the
Noteholders, the Class A Notes, the Class B Notes, the Class M Notes, the
Class C Notes or the Class D Notes, as the context requires;
29
"Class A Noteholders" means the Holders of the Class A Notes;
"Class A Notes" means Notes of any Series designated as such in the
applicable Final Terms;
"Class B Noteholders" means the Holders of the Class B Notes;
"Class B Notes" means Notes of any Series designated as such in the
applicable Final Terms;
"Class C Noteholders" means the Holders of the Class C Notes;
"Class C Notes" means Notes of any Series designated as such in the
applicable Final Terms;
"Class D Noteholders" means the Holders of the Class D Notes;
"Class D Notes" means Notes of any Series designated as such in the
applicable Final Terms;
"Class M Noteholders" means the Holders of the Class M Notes;
"Class M Notes" means Notes of any Series designated as such in the
applicable Final Terms;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Closing Date" means the date on which the Issuer issues a Series of
Notes to the Noteholders;
"Commercial Business Day" has the meaning indicated in Condition 1(D);
"Current Seller Share" means the amount of trust property
beneficially owned by the Seller from time to time;
"Designated Account" means the account (which, in the case of a
payment in Japanese Yen to a non-resident of Japan, shall be a non-resident
account) maintained by a holder with a Designated Bank and identified as such
in the Register;
"Designated Bank" means (in the case of payment in a Specified
Currency other than euro) a bank in the principal financial centre of the
country of such Specified Currency (which, if the Specified Currency is
Australian dollars or New Zealand dollars, shall be Sydney and Auckland,
respectively) and (in the case of a payment in euro) any bank which processes
payments in euro;
"Determination Period" means each period from (and including) a
Determination Date to (but excluding) the next Determination Date (including,
where either the Interest Commencement Date or the applicable final Note
Payment Date is not a Determination Date, the period commencing on the first
Determination Date prior to, and ending on the first Determination Date
falling after, such date);
"Determination Date" means, in respect of any Series and Class of
Notes, the date(s) specified as such for such Notes in the Final Terms;
"Distribution Date" means the date on which the mortgages trust
terminates and the London Business Day determined by the Cash Manager falling
no later than 6 business days after each Trust Determination Date;
"Dollars", "US$", "US Dollars" or "$" means the lawful currency for
the time being of the United States of America;
"EURIBOR" means the Euro-zone inter-bank offered rate;
"Euro", "euro" or "(euro)" means the currency of the member states of
the European Union that adopt the single currency in accordance with the
Treaty of Rome of 25 March 1957, establishing the European Community, as
amended from time to time;
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System;
"Extraordinary Resolution" means (a) a resolution passed at a meeting
of the Noteholders of a particular Class, Series or Series and Class duly
convened and held in
30
accordance with the provisions of the Issuer Trust Deed 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,
Series or Series and Class, which resolution in writing may be contained in
one document or in several documents in like form each signed by or on behalf
of one or more of the Noteholders of such Class, Series or Series and Class
(as the case may be);
"Final Maturity Date" means, in respect of any Series and Class of
Notes, the date specified as such for such Notes in the applicable Final
Terms;
"Final Terms" means, in relation to any Series of Notes, the final
terms issued in relation to such Series of Notes as a supplement to these
Conditions (being, in the case of a Series of Notes issued prior to 1st July,
2005, in the form of a pricing supplement) and giving details of, inter alia,
the amount and price of such Series of Notes and which forms a part of the
Base Prospectus in relation to such Series of Notes;
"Fixed Interest Period" or "Interest Period" means, in respect of a
Series and Class of Notes, the period from (and including) a Note Payment Date
for such Notes (or the Interest Commencement Date) to (but excluding) the next
(or first) Note Payment Date for such Notes.
"Fixed Coupon Amount" means, in respect of any Series and Class of
Notes, the amount specified as such (if any) for such Notes in the applicable
Final Terms;
"Funding 2" means Granite Finance Funding 2 Limited;
"Funding 2 Deed of Charge" means the deed of charge entered into on
or about the Initial Closing Date, as amended and restated from time to time,
between, among others, Funding 2, the Funding 2 Security Trustee, the Issuer
and the Note Trustee and each deed of accession or supplement entered into in
connection therewith;
"Funding 2 Program Date" or "Funding 2 Programme Date" means on or
about 19 January, 2005;
"Funding 2 Security" means the mortgages, charges, assignments,
pledges and other security created by Funding 2 under or pursuant to the
Funding 2 Deed of Charge in favour of the Funding 2 Security Trustee for the
benefit of the secured creditors of Funding 2 as described under the Funding 2
Deed of Charge;
"Funding 2 Security Trustee" means The Bank of New York and its
successors or any other security trustee under the Funding 2 Deed of Charge);
"Global Intercompany Loan" means, at any time, the aggregate of all
Loan Tranches advanced under the Global Intercompany Loan Agreement;
"Global Intercompany Loan Agreement" means the loan agreement entered
into on or about the Funding 2 Programme Date between, among others, Funding
2, the Issuer and the Funding 2 Security Trustee;
"Global Note Certificates" means the US Global Note Certificates and
the Reg S Global Note Certificates;
"Holder" has the meaning indicated in Condition 1(B);
"Individual Note Certificates" means the note certificates
representing the Notes while in definitive form;
"Interest Commencement Date" means, in respect of any Series and
Class of Notes, the Closing Date of such Notes or such other date as may be
specified as such for such Notes in the applicable Final Terms;
"Interest Determination Date" means, in respect of any Series and
Class of Notes, the date(s) specified as such (if any) for such Notes in the
applicable Final Terms;
31
"ISDA Definitions" means the 2000 ISDA Definitions, as published by
the International Swaps and Derivatives Association, Inc. and as amended and
updated as at the Closing Date of the first Series of Notes;
"Issuer" means Granite Master Issuer plc;
"Issuer Account Bank" means Citibank, N.A., situated at 5 Carmelite
Street, London EC4Y 0PA or such other person for the time being acting as
account bank to the Issuer under the Issuer Bank Account Agreement;
"Issuer Available Principal Receipts" means:
(a) prior to enforcement of the Issuer Security, for the Issuer
in respect of any Monthly Payment Date, an amount calculated
by the Issuer Cash Manager on the Distribution Date
immediately preceding that Monthly Payment Date equal to the
sum:
(i) of all principal receipts to be repaid by Funding 2
to the issuer under the Global Intercompany Loan
Agreement or that Monthly Payment Date; and
(ii) in so far as needed to make an Issuer Reserve
Principal Payment, any amount available to be drawn
under the Issuer Reserve Fund less any amounts to
be applied on the relevant Monthly Payment Date in
payment of interest or expenses under the Issuer
Pre-Enforcement Revenue Priority of Payments, plus
any amounts to be credited to the Issuer Reserve
Ledger under the Issuer Pre-Enforcement Principal
Priority of payments on the relevant Monthly
Payment Date.
(b) following enforcement of the Issuer Security, for the Issuer
in respect of any Monthly Payment Date the sum calculated by
or on behalf of the Issuer Security Trustee on the
Distribution Date immediately preceding such Monthly Payment
Date as the amount to be repaid by Funding 2 to the Issuer
under the Global Intercompany Loan Agreement during the
relevant Interest Period and/or the sum otherwise recovered
by the Issuer Security Trustee (or the receiver appointed on
its behalf) representing the Principal Amount Outstanding of
the Notes;
"Issuer Available Revenue Receipts" means for the Issuer in respect
of any Monthly Payment Date an amount calculated by the Issuer Cash Manager on
the Distribution Date immediately preceding such Monthly Payment Date equal to
the sum of:
(a) interest, fees and any other amount (excluding principal)
paid by Funding 2 on the relevant Monthly Payment Date in
respect of the Global Intercompany Loan;
(b) amounts received by the Issuer under or in accordance with
the Issuer Swap Agreements (excluding Swap Collateral
standing to the credit of the Issuer Swap Collateral
Accounts) and any early termination amounts (other than such
early termination amounts applied or to be applied by the
Issuer in the purchase of one or more replacement hedge
transactions) received by the Issuer under the Issuer Swap
Agreements;
(c) interest payable on the Issuer Bank Accounts and any income
from Authorised Investments made with funds standing to the
credit of the Issuer Bank Accounts in each case which has
been or will be received on or before the relevant Monthly
Payment Date; and
(d) the amounts available to be drawn under the Issuer Reserve
Fund, subject to any limits or conditions or the purposes
for which the Issuer Reserve Funding may be utilised;
"Issuer Bank Accounts" means the Issuer Transaction Account and also
includes any additional or replacement bank account opened in the name of the
Issuer from time to time with the prior written consent of the Issuer Security
Trustee and the Rating Agencies;
32
"Issuer Bank Account Agreement" means the bank account agreement
entered into on or about the Funding 2 Programme Date between the Issuer, the
issuer Cash Manager, the Issuer Account Bank and the Issuer Security Trustee;
"Issuer Cash Management Agreement" means the cash management
agreement entered into on or about the Funding 2 Programme Date among the
Issuer Cash Manager, the Issuer and the Issuer Security Trustee;
"Issuer Corporate Services Agreement" means the corporate services
agreement entered into on or about the Funding 2 Programme Date between, among
others, the Issuer Corporate Services Provider, Holdings, the Post Enforcement
Call Option Holder and the Issuer, for the provision by the Issuer Corporate
Services Provider of certain corporate services;
"Issuer Corporate Services Provider" means Law Debenture Corporate
Services Limited or such other person for the time being acting as corporate
services provider to the Issuer under the Issuer Corporate Services Agreement;
"Issuer Deed of Charge" means the deed of charge entered into on or
about the Funding 2 Program Date, as amended and restated from time to time,
between, among others, the Issuer and the Issuer Security Trustee and each
deed of accession or supplement entered into in connection therewith;
"Issuer Enforcement Notice" has the meaning indicated in Condition
10(A);
"Issuer Master Definitions Schedule" means the master definitions
schedule in connection with the Issuer dated on or about the Funding 2 Program
Date setting out, among other things, definitions which apply to certain
Transaction Documents;
"Issuer Paying Agent and Agent Bank Agreement" means the paying agent
and agent bank agreement entered into on or about the Funding 2 Program Date
between the Issuer, the Principal Paying Agent, the Paying Agents, the
Transfer Agent, the Registrar, the Agent Bank, the Issuer Security Trustee and
the Note Trustee;
"Issuer Post-Enforcement Call Option Agreement" means the post
enforcement call option agreement entered into on or about the Funding 2
Program Date between the Issuer, the Post Enforcement Call Option Holder and
the Note Trustee;
"issuer Post-Enforcement Priority of Payments" means the provisions
and the order of priority of payments in which all Issuer Available Revenue
Receipts, Issuer Available Principal Receipts and all other monies, income,
receipts and recoveries received by or on behalf of the Issuer or the Issuer
Security Trustee or any receiver of the Issuer and the proceeds of enforcement
of the Issuer Security are to be applied following an enforcement of the
issuer Security as set out in a schedule to the Issuer Deed of Charge, as the
same may be amended, varied or superseded from time to time in accordance with
the terms of the Issuer Deed of Charge;
"Issuer Pre-Enforcement Principal Priority of Payments" means the
provisions and the order of priority of payments in which the Issuer Available
Principal Receipts will be applied until enforcement of the Issuer Security as
set out in a schedule to the Issuer Cash Management Agreement;
"Issuer Pre-Enforcement Revenue Priority of Payments" means the
provisions and the order of priority of payments in which the Issuer Available
Revenue Receipts will be applied until enforcement of the Issuer Security and
as set out in a schedule to the Issuer Cash Management Agreement;
"Issuer Secured Creditors" means the Issuer Security Trustee (and any
receiver appointed under the Issuer Deed of Charge), the Note Trustee, the
Issuer Swap Providers, any Start-Up Loan Provider, the Issuer Corporate
Services Provider, the Issuer Account Bank, the Issuer Cash Manager, the
Paying Agents, the Agent Bank, the Transfer Agent, the Registrar and the
Noteholders and any new Issuer Secured Creditor who accedes to the Issuer Deed
of Charge from time to time under a Deed of Accession or a supplemental deed;
33
"Issuer Security" means the security created by the Issuer pursuant
to the Issuer Deed of Charge;
"Issuer Security Trustee" means The Bank of New York and its
successors or any further or other security trustee under the Issuer Deed of
Charge, as trustee for the Issuer Secured Creditors;
"Issuer Swap Agreements" means the ISDA master agreements, schedules
thereto and confirmations thereunder relating to the currency and/or interest
rate swaps to be entered into on or about each Closing Date, and any credit
support annexes or other credit support documents entered into at any time, as
amended from time to time, among the Issuer and the applicable Issuer Swap
Provider and/or any credit support provider and includes any additional and/or
replacement Issuer Swap Agreement entered into by the Issuer from time to time
in connection with the Notes;
"Issuer Swap Collateral" means any asset (including, without
limitation, cash and/or securities) paid or transferred to the Issuer by an
Issuer Swap Provider in accordance with the terms of the relevant Issuer Swap
Agreement as collateral to secure the performance of that Issuer Swap
Provider's obligations under the relevant Issuer Swap Agreement together with
any income or distributions received in respect of such asset (if the Issuer
is entitled to retain the same) and any equivalent of or replacement of such
asset into which such asset is transformed;
"Issuer Swap Collateral Accounts" means the Issuer Swap Collateral
Cash Account and the Issuer Swap Collateral Securities Account;
"Issuer Swap Collateral Ancillary Document" means any document
(including, without limitation, any custodial agreement or bank account
agreement but excluding the Issuer Swap Agreements, the Issuer Cash Management
Agreement and the Issuer Deed of Charge) as may be entered into by the Issuer
from time to time in connection with the Issuer Swap Collateral;
"Issuer Swap Collateral Cash Account" means an account opened in the
name of the Issuer for the purpose of holding Swap Collateral in cash and
maintained in accordance with the terms of the Issuer Cash Management
Agreement;
"Issuer Swap Collateral Securities Account" means a securities
account opened in the name of the Issuer for the purpose of holding Swap
Collateral in the form of securities and maintained in accordance with the
terms of the Issuer Cash Management Agreement;
"Issuer Swap Providers" means the institutions identified in respect
of each Issuer Swap Agreement in the Final Terms related to the relevant
Series and Class of Notes;
"Issuer Transaction Account" means the day to day bank accounts of
the Issuer, held with the Issuer Account Bank as at the Funding 2 Program Date
or that may be opened, with the prior approval of the Issuer Security Trustee,
after the Closing Date;
"Issuer Trust Deed" means the trust deed entered into on or about the
Funding 2 Program Date as amended and restated from time to time between the
Issuer and the Note Trustee, and each supplemental deed entered into in
connection therewith;
"LIBOR" means the London inter-bank offered rate;
"Listed Notes" means each Series and Class of Notes which is admitted
to the official list maintained by the UK Listing Authority and admitted to
trading on the London Stock Exchange's Gilt Edged and Fixed Interest Market;
"Loan Payment Date" means, in respect of a Loan Tranche, the Monthly
Payment Date(s) specified in the Loan Tranche Supplement for the payment of
interest and/or principal subject to the terms of the Global Intercompany Loan
Agreement;
"Loan Tranches" means the AAA Loan Tranches, the AA Loan Tranches,
the A Loan Tranches, the BBB Loan Tranches and the BB Loan Tranches, being the
advances made by the Issuer to Funding 2, pursuant to the Global Intercompany
Loan Agreement,
34
"Payment Business Day" means a day which is:
(a) a day on which a day on which commercial banks and foreign
exchange markets settle payments and are open for general
business (including dealing in foreign exchange and foreign
currency deposits) in:
(i) the relevant place of presentation;
(ii) London;
(iii) any Additional Financial Centre specified in the
applicable Final Terms; and
(b) either (1) in relation to any sum payable in a Specified
Currency other than euro, a day on which commercial banks
and foreign exchange markets settle payments and are open
for general business (including dealing in foreign exchange
and foreign currency deposits) in the principal financial
centre of the country of the relevant Specified Currency (if
other than London and any Additional Business Centre) and
which if the Specified Currency is Australian dollars or New
Zealand dollars shall be Sydney and Auckland, respectively
or (2) in relation to any Notes denominated or payable in
euro, a day on which the Trans-European Automated RealTime
Gross Settlement Express Transfer (TARGET) System is open;
and
(c) in the case of any payment in respect of a Global Note
Certificate denominated in a Specified Currency other than
US dollars and registered in the name of DTC or its nominee
and in respect of which an accountholder of DTC (with an
interest in such Global Note) has elected to receive any
part of such payment in US dollar, a day on which commercial
banks are not authorised or required by law or regulation to
be closed in New York;
"Post Enforcement Call Option Holder" means GPCH Limited;
"Principal Amount Outstanding" has the meaning indicated in Condition
5(C);
"Principal Paying Agent" means Citibank, N.A., 5 Carmelite Street,
London EC4Y DPA in its capacity as principal paying agent at its Specified
Office or such other person for the time being acting as principal paying
agent under the Issuer Paying Agent and Agent Bank Agreement;
"Rate of Interest" and "Rates of Interest" means, in respect of any
Series and Class of Notes, the rate or rates (expressed as a percentage per
annum) on interest payable in respect of such Notes specified in the
applicable Final Terms or calculated and determined in accordance with the
applicable Final Terms;
"Rating Agencies" means Standard & Poor's Rating Services, a division
of The McGraw-Hill Companies Inc., Moody's Investors Service Limited and Fitch
Ratings Ltd.;
"Reference Price" means, in respect of any Series and Class of Notes,
the price specified as such for such Notes in the applicable Final Terms;
"Reference Rate" means, in respect of any Series and Class of Notes,
the rate specified as such for such Notes in the applicable Final Terms;
"Reg S" means Regulation S under the United States Securities Act of
1933, as amended;
"Reg S Notes" means each Series and Class of Listed Notes that are
not US Notes;
"Reg S Global Note Certificates" means the note certificates
representing the Reg S Notes while in global form;
"Register" means the register of Noteholders kept by the Registrar
and which records the identity of each Noteholder and the number of Notes that
each Noteholder owns;
"Registrar" means Citibank, N.A. in its capacity as registrar at its
Specified Office or such other person for the time being acting as registrar
under the Issuer Paying Agent and Agent Bank Agreement;
35
"Relevant Screen" means a page of the Reuters service or Bloomberg
service, or any other medium for electronic display of data as may be
previously approved in writing by the Note Trustee and has been notified to
Noteholders in the manner set out in Condition 14;
"Relevant Screen Page" means, in respect of any Series and Class of
Notes, the screen page specified as such for such Notes in the applicable
Final Terms;
"Security Interest" means any mortgage or sub-mortgage, standard
security, charge or sub-charge (whether legal or equitable), encumbrance,
pledge, lien, hypothecation, assignment by way of security or other security
interest or title retention arrangement and any agreement, trust or
arrangement having substantially the same economic or financial effect as any
of the foregoing (other than a lien arising in the ordinary course of business
or by operation of law);
"Seller Share" means the Current Seller Share of the trust property
calculated as set forth in the Mortgages Trust Deed;
"Seller Share Event" means an event that will occur if, on a
Distribution Date, (i) the result of the calculation of the Current Seller
Share on that Distribution Date would be equal to or less than the Minimum
Seller Share for such Distribution Date (determined using the amounts of the
Current Seller Share and Minimum Seller Share that would exist after making
the distributions of mortgages trustee principal receipts due on that
Distribution Date on the basis that the Cash Manager assumes that those
mortgages trustee principal receipts are distributed in the manner described
in the Mortgages Trust Deed, and (ii) a Seller Share Event has not occurred on
the immediately preceding Distribution Date;
"Seller Share Event Distribution Date" means a Distribution Date on
which a Seller Share Event occurs;
"Series" means, subject to Condition 15, in relation to the Notes,
all Notes (of any Class) issued on a given day;
"Series and Class" means, a particular Class of Notes of a given
Series or, where such Class of such Series comprises more than one sub-class,
"Series and Class" means a particular sub-class of such Class;
"Specified Currency" means, in respect of any Series and Class of
Notes, the currency or currencies specified as such for such Notes in the
applicable Final Terms;
"Specified Currency Exchange Rate" means, in relation to a Series and
Class of Notes, the exchange rate specified in the Issuer Swap Agreement
relating to such Series and Class of Notes or, if the Issuer Swap Agreement
has been terminated, the applicable spot rate;
"Specified Date" has the meaning indicated in Condition 11(F);
"Specified Denomination" means, in respect of any Series and Class of
Notes, the denomination specified as such for such Notes in the applicable
Final Terms which shall, in respect of Notes issued on or after 1 July 2005,
be (euro)50,000 or more (or its equivalent in any other currency at the date
of issue of such Notes);
"Specified Office" means, as the context may require, in relation to
any of the Agents, the office specified against the name of such Agent in the
Issuer Paying Agent and Agent Bank Agreement or such other specified notice as
may be notified to the Issuer and the Note Trustee pursuant to the Issuer
Paying Agent and Agency Bank Agreement;
"Specified Period" means, in respect of any Series and Class of
Notes, the period expressed as the Specified Period for such Notes in the
applicable Final Terms;
"Sterling", "Pounds Sterling" or "(pound)" means the lawful currency
for the time being of the United Kingdom of Great Britain and Northern
Ireland;
"Sterling Notes" means each Series and Class of Notes denominated in
Sterling;
36
"sub-unit" means, with respect to any currency other than Sterling,
the lowest amount of such currency that is available as legal tender in the
country of such currency and, with respect to Sterling, one pence.
"Transaction Documents" means the Issuer Corporate Services
Agreement, the Global Intercompany Loan Agreement, the Funding 2 Deed of
Charge, the Issuer Bank Account Agreement, the Issuer Deed of Charge, the
Issuer Trust Deed, the Issuer Paying Agent and Agent Bank Agreement, the
Issuer Cash Management Agreement, the Issuer Post-Enforcement Call Option
Agreement, the Issuer Swap Agreements, any Issuer Swap Collateral Ancillary
Document, the Issuer Master Definitions Schedule, the Mortgages Trustee
Guaranteed Investment Contract, the Funding 2 Guaranteed Investment Contract
and such other related documents which are referred to in the terms of the
above documents;
"Transfer Agent" means Citibank, N.A. in its capacity as transfer
agent at its Specified Office or such other person for the time being acting
as transfer agent under the Issuer Paying Agent and Agent Bank Agreement;
"Trust Determination Date" means the first day (or, if not a London
Business Day, the next succeeding London Business Day) of each calendar month;
"UK Listing Authority" means the Financial Services Authority in its
capacity as competent authority for the purposes of Part VI of the Financial
Services and Markets Act 2000, as amended;
"US Global Note Certificates" means the note certificates
representing the US Notes while in global form;
"US Notes" means each Series and Class of Listed Notes which is
registered with the United States Securities and Exchange Commission under the
United States Securities Act of 1933, as amended;
"US Paying Agent" means Citibank, N.A., acting in its capacity as US
paying agent through its New York office or such other person for the time
being acting as US paying agent under the Issuer Paying Agent and Agent Bank
Agreement;
"US Prospectus" means, in relation to the US Notes, the US prospectus
of the Issuer from time to time, the first being the US prospectus dated 21
January 2005;
"US Prospectus Supplement" means, in relation to any Series of US
Notes, the prospectus supplement issued in relation to such Series of US Notes
as a supplement to the US prospectus and giving details of such Series of US
Notes.
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