EXHIBIT 4.4
EXECUTION COPY
SEVENTH ISSUER DEED OF CHARGE
DATED 23RD MARCH, 2005
PERMANENT FINANCING (NO. 7) PLC
AND
THE BANK OF NEW YORK
AND
HALIFAX PLC
AND
CITIBANK, N.A.
AND
CITIBANK, N.A., NEW YORK BRANCH
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AND
STRUCTURED FINANCE MANAGEMENT LIMITED
AND
UBS LIMITED
AND
SWISS RE FINANCIAL PRODUCTS CORPORATION
AND
CITIBANK N.A., LONDON BRANCH
ALLEN & OVERY
ALLEN & OVERY LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation................................................................................ 2
2. Seventh Issuer's Covenant to Pay.............................................................. 3
3. Security and Declaration of Trust............................................................. 3
4. Release of Seventh Issuer Charged Property.................................................... 5
5. Payments out of the Seventh Issuer Accounts, Authorised Investments and Application of
Cash prior to Enforcement..................................................................... 6
6. Payments out of the Seventh Issuer Accounts upon Enforcement.................................. 8
7. Conflict...................................................................................... 15
8. The Security Trustee's Powers................................................................. 16
9. Receiver...................................................................................... 19
10. Protection of Third Parties................................................................... 22
11. Protection of Security Trustee and Receiver................................................... 23
12. Expenses and Indemnity........................................................................ 23
13. Protection of Security........................................................................ 25
14. Crystallisation............................................................................... 26
15. Power of Attorney, etc........................................................................ 27
16. Other Security, etc........................................................................... 27
17. Avoidance of Payments......................................................................... 28
18. Set Off....................................................................................... 29
19. Execution of Documents........................................................................ 29
20. Exercise of Certain Rights.................................................................... 30
21. Covenants and Warranties...................................................................... 32
22. Supplements to the Trustee Acts............................................................... 35
23. Supplemental provisions regarding the Security Trustee........................................ 41
24. Remuneration and Indemnification of the Security Trustee...................................... 45
25. Appointment of New Security Trustee and removal of Security Trustee........................... 47
26. Retirement of Security Trustee................................................................ 48
27. Trust Indenture Act prevails.................................................................. 49
28. Notices and Demands........................................................................... 49
29. Further Provisions............................................................................ 50
30. Choice of Law................................................................................. 52
SCHEDULE
1. Power of Attorney............................................................................. 57
2. Form of Notice of Assignment and Consent to Assignment........................................ 59
Signatories......................................................................................... 53
THIS SEVENTH ISSUER DEED OF CHARGE is made on 23rd March, 2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 7) PLC, (registered number 5330776) a public
limited company incorporated under the laws of England and Wales whose
registered office is at Blackwell House, Guildhall Yard, London EC2V 5AE
(the SEVENTH ISSUER);
(2) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 48th Floor, One Canada Square, London E14 5AL acting in its
capacity as the Security Trustee;
(3) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 48th Floor, One Canada Square, London E14 5AL acting in its
capacity as the Note Trustee;
(4) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA and acting in its capacity as the Agent Bank;
(5) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA and acting in its capacity as the Principal Paying Agent;
(6) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA and acting in its capacity as the Registrar;
(7) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA and acting in its capacity as the Transfer Agent;
(8) HALIFAX PLC, a public limited company incorporated under the laws of
England and Wales whose registered office is at Trinity Road, Halifax,
West Yorkshire HX1 2RG acting in its capacity as the Seventh Issuer Cash
Manager;
(9) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, established by an Act
of the Parliament of Scotland in 1695, acting through its office situated
at 116 Wellington Street, Leeds LS1 4LT, and acting in its capacity as
the Seventh Issuer Account Bank;
(10) CITIBANK, N.A., NEW YORK BRANCH, whose principal office is at 14th Floor,
388 Greenwich Street, New York, New York 10013 acting in its capacity as
the U.S. Paying Agent;
(11) UBS LIMITED, of 1 Finsbury Avenue, London EC2M 2PP acting in its capacity
as Series 1 Seventh Issuer Swap Provider in respect of the Series 1 Class
A Seventh Issuer Swap Agreement, the Series 1 Class B Seventh Issuer Swap
Agreement, the Series 1 Class C Seventh Issuer Swap Agreement;
(12) SWISS RE FINANCIAL PRODUCTS CORPORATION, of 55 East 52nd Street, 39th
Floor, New York, New York 10055, acting in its capacity as Series 2
Seventh Issuer Swap Provider in respect of the Series 2 Class A Seventh
Issuer Swap Agreement, the Series 2 Class B Seventh Issuer Swap Agreement
and the Series 2 Class C Seventh Issuer Swap Agreement;
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(13) CITIBANK N.A., LONDON BRANCH, of Citigroup Centre, 33 Canada Square,
Canary Wharf, London E14 5LB, acting in its capacity as Series 3 Seventh
Issuer Swap Provider in respect of the Series 3 Class A Seventh Issuer
Swap Agreement, the Series 3 Class B Seventh Issuer Swap Agreement and
the Series 3 Class C Seventh Issuer Swap Agreement; and
(14) STRUCTURED FINANCE MANAGEMENT LIMITED, (registered number 3853947), whose
registered office is at Blackwell House, Guildhall Yard, London EC2V 5AE
acting in its capacity as the Corporate Services Provider under the terms
of the Seventh Issuer Corporate Services Agreement.
WHEREAS:
(a) This Deed secures and will secure, inter alia, the Seventh Issuer Secured
Obligations.
(b) The Seventh Issuer will on the date of this Deed issue the Seventh Issuer
Notes pursuant to the Seventh Issuer Trust Deed.
(c) By the Seventh Issuer Paying Agent and Agent Bank Agreement, the Paying
Agents and the Agent Bank have agreed to provide certain agency services
on behalf of the Seventh Issuer for the benefit of the Noteholders.
(d) By the Seventh Issuer Cash Management Agreement, the Seventh Issuer Cash
Manager has agreed to act as cash manager and to provide certain
administration and cash management services to the Seventh Issuer.
(e) By the Seventh Issuer Bank Account Agreement, the Seventh Issuer Account
Bank has agreed to provide certain bank account services to the Seventh
Issuer.
(f) By the Series 1 Seventh Issuer Swap Agreements, each Series 1 Seventh
Issuer Swap Provider has agreed to enter into dollar/sterling currency
swaps with the Seventh Issuer in relation to the Series 1 Seventh Issuer
Notes.
(g) By the Series 2 Seventh Issuer Swap Agreements, each Series 2 Seventh
Issuer Swap Provider has agreed to enter into dollar/sterling currency
swaps with the Seventh Issuer in relation to the Series 2 Seventh Issuer
Notes.
(h) By the Series 3 Seventh Issuer Swap Agreements, each Series 3 Seventh
Issuer Swap Provider has agreed to enter into euro/sterling currency
swaps with the Seventh Issuer in relation to the Series 3 Seventh Issuer
Notes.
(i) By the Seventh Issuer Corporate Services Agreement, the Corporate
Services Provider has agreed to act as corporate services provider to the
Seventh Issuer.
IT IS AGREED as follows:
1. INTERPRETATION
The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Deed and dated 23rd March,
2005 (as the same may be amended, varied or supplemented from time to
time with the consent of the parties to this Deed) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the seventh issuer master
definitions and construction schedule signed for the purposes of
identification by Allen & Overy LLP and Sidley Austin Brown & Wood on
23rd March, 2005, (the SEVENTH ISSUER MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) are expressly and specifically incorporated into this
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Deed and, accordingly, the expressions defined in the Master Definitions
and Construction Schedule (as so amended, varied or supplemented from
time to time) and the Seventh Issuer Master Definitions and Construction
Schedule shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Deed and
this Deed shall be construed in accordance with the interpretation
provisions set out in CLAUSE 2 (Interpretation and Construction) of the
Seventh Issuer Master Definitions and Construction Schedule.
2. SEVENTH ISSUER'S COVENANT TO PAY
The Seventh Issuer covenants with and undertakes to the Security Trustee
for itself and on trust for the Seventh Issuer Secured Creditors that it
will, subject to the provisions of the Seventh Issuer Transaction
Documents:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable to the Security
Trustee (whether for its own account or as trustee for the Seventh
Issuer Secured Creditors) or any of the other Seventh Issuer
Secured Creditors by the Seventh Issuer whether actually or
contingently, under this Deed or any other Seventh Issuer
Transaction Document; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any other Seventh Issuer
Transaction Document.
3. SECURITY AND DECLARATION OF TRUST
3.1 CONTRACTUAL RIGHTS
The Seventh Issuer, by way of first fixed security for the payment or
discharge of the Seventh Issuer Secured Obligations, subject to CLAUSE 4
(Release of Seventh Issuer Charged Property), hereby assigns (or, to the
extent not assignable, charges) to the Security Trustee (on trust for
itself and for the other Seventh Issuer Secured Creditors) all of its
right, title, interest and benefit, present and future, in, to and under
the Seventh Issuer Transaction Documents including, without limitation,
all rights to receive payment of any amounts which may become payable to
the Seventh Issuer thereunder and all payments received by the Seventh
Issuer thereunder including, without limitation, all rights to serve
notices and/or make demands thereunder and/or to take such steps as are
required to cause payments to become due and payable thereunder and all
rights of action in respect of any breach thereof and all rights to
receive damages or obtain other relief in respect thereof.
3.2 SEVENTH ISSUER ACCOUNTS
The Seventh Issuer, by way of first fixed security for the payment or
discharge of the Seventh Issuer Secured Obligations, subject to CLAUSE 4
(Release of Seventh Issuer Charged Property), hereby assigns (or, to the
extent not assignable, charges) to the Security Trustee (on trust for
itself and for the other Seventh Issuer Secured Creditors) all its right,
title, interest and benefit, present and future, in and to all moneys now
or at any time hereafter standing to the credit of the Seventh Issuer
Accounts, together with all interest accruing from time to time thereon
and the debt represented thereby.
3.3 AUTHORISED INVESTMENTS
The Seventh Issuer, by way of first fixed security for the payment or
discharge of the Seventh Issuer Secured Obligations, subject to CLAUSE 4
(Release of Seventh Issuer Charged
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Property), hereby charges by way of first fixed charge in favour of the
Security Trustee (on trust for itself and for the other Seventh Issuer
Secured Creditors) all its right, title, interest and benefit, present
and future, in and to such Authorised Investments to be made from time to
time by or on behalf of the Seventh Issuer using moneys standing to the
credit of the Seventh Issuer Accounts and all moneys, income and proceeds
payable thereunder or accrued thereon and the benefit of all covenants
relating thereto and all rights and remedies for enforcing the same.
3.4 FLOATING CHARGE
The Seventh Issuer, by way of security for the payment or discharge of
the Seventh Issuer Secured Obligations, subject to CLAUSE 4 (Release of
Seventh Issuer Charged Property), hereby charges to the Security Trustee
(on trust for itself and for the other Seventh Issuer Secured Creditors)
by way of first floating charge the whole of its undertakings and all its
property and assets whatsoever and wheresoever, present and future,
including without limitation its uncalled capital, other than any
property or assets from time to time or for the time being by CLAUSES 3.1
(Contractual Rights) to CLAUSE 3.3 (Authorised Investments) (inclusive)
effectively charged by way of fixed charge or otherwise effectively
assigned as security but excepting from the foregoing exclusion the
undertakings, property and assets of the Seventh Issuer situated in
Scotland or governed by Scots law, all of which are charged by the
floating charge hereby created. The floating charge hereby created is a
qualifying floating charge for the purpose of paragraph 14 of Schedule B1
of the Insolvency Act 1986.
3.5 FULL TITLE GUARANTEE
Each of the dispositions, assignments or charges over property effected
in or pursuant to CLAUSES 3.1 (Contractual Rights) to CLAUSE 3.4
(Floating Charge) (inclusive) is made with full title guarantee or, in
relation to any rights or assets situated in Scotland or governed by
Scots law, with absolute warrandice.
3.6 ACKNOWLEDGEMENTS AND UNDERTAKINGS
Each of the Seventh Issuer Secured Creditors hereby acknowledges the
assignments, charges and other security interests made or granted by the
foregoing provisions of this CLAUSE 3 and undertakes to the Security
Trustee not to do anything inconsistent with the security given under or
pursuant to this Deed or knowingly to prejudice the security granted to
the Security Trustee pursuant to this CLAUSE 3 or the Seventh Issuer
Charged Property or the Security Trustee's interest therein provided
that, without prejudice to CLAUSE 9 (Receiver), nothing in this Deed
shall be construed as limiting the rights exercisable by the aforesaid
parties in accordance with the terms of the Seventh Issuer Transaction
Documents.
3.7 DECLARATION OF TRUST
The Security Trustee hereby declares itself trustee of all the covenants,
undertakings, charges, assignments, assignations and other security
interests made or given or to be made or given under or pursuant to this
Deed and the other Seventh Issuer Transaction Documents for the Seventh
Issuer Secured Creditors in respect of the Seventh Issuer Secured
Obligations owed to each of them respectively upon and subject to the
terms and conditions of this Deed.
3.8 SECURITY TRUSTEE'S DISCRETION
Subject to CLAUSE 23.6 (Consent of Security Trustee), without prejudice
to the rights of the Security Trustee after the security created under
this Deed has become enforceable, the Seventh Issuer hereby authorises
the Security Trustee, prior to the security created by this
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Deed becoming enforceable, to exercise, or refrain from exercising, all
rights, powers, authorities, discretions and remedies under or in respect
of the Seventh Issuer Transaction Documents referred to in CLAUSE 3.1
(Contractual Rights) in such manner as the Security Trustee in its
absolute discretion shall think fit. For the avoidance of doubt, the
Security Trustee shall not be required to have regard to the interests of
the Seventh Issuer in the exercise or non-exercise of any such rights,
powers, authorities, discretions and remedies or to comply with any
direction given by the Seventh Issuer in relation thereto.
4. RELEASE OF SEVENTH ISSUER CHARGED PROPERTY
4.1 PRIOR TO PAYMENT OR DISCHARGE OF SEVENTH ISSUER SECURED OBLIGATIONS
(a) Except to the extent expressly provided in this CLAUSE 4, the
Security Trustee shall, release, reassign or discharge the Seventh
Issuer Charged Property or any part thereof only upon receipt of a
written request from the Seventh Issuer accompanied by (i) an
Officers' Certificate and (ii) certificates of independent parties
in accordance with Sections 314(c) and 314(d)(1) of the Trust
Indenture Act (the INDEPENDENT CERTIFICATES) or an Opinion of
Counsel to the effect that the Trust Indenture Act does not require
any such Independent Certificates;
(b) Prior to the release of any part of the Seventh Issuer Charged
Property, the Seventh Issuer shall, in addition to any obligation
imposed in this CLAUSE 4.1 or elsewhere in this Deed, furnish to
the Security Trustee an Officers' Certificate certifying or stating
the opinion of each person signing such certificate as to the fair
value of that part of the Seventh Issuer Charged Property to be so
released. The officers so certifying may consult with, and may
conclusively rely upon a certificate as to the fair value of such
property provided to such officers by an internationally recognised
financial institution with expertise in such matters;
(c) Whenever the Seventh Issuer is required to furnish to the Security
Trustee an Officers' Certificate certifying or stating the opinion
of any signatory thereof as to the matters described in the
preceding paragraph, the Seventh Issuer shall also deliver to the
Security Trustee an Independent Certificate as to the same matters,
if the fair value of that part of the Seventh Issuer Charged
Property to be so released (and of all other such property made the
basis of any such release since the commencement of the Seventh
Issuer's then current fiscal year, as set forth in the certificates
delivered pursuant to this CLAUSE 4.1), is 10 per cent. or more of
the Principal Amount Outstanding of the Seventh Issuer Notes, but
such Independent Certificate need not be furnished with respect to
any property so released if the fair value thereof as set forth in
the related Officers' Certificate is less than U.S.$25,000 or less
than one per cent. of the Principal Amount Outstanding of the
Seventh Issuer Notes;
(d) Whenever any part of the Seventh Issuer Charged Property is to be
released from the security constituted by this Deed, the Seventh
Issuer shall also furnish to the Security Trustee an Officer's
Certificate certifying or stating the opinion of each person
signing such certificate that in the opinion of such person the
proposed release will not impair the security under this Deed in
contravention of the provisions hereof; and
(e) Notwithstanding anything to the contrary contained herein, the
Seventh Issuer may (i) make cash payments out of the Seventh Issuer
Account relating to the Seventh Issuer Notes as and to the extent
permitted or required by the Seventh Issuer Transaction Documents
and (ii) take any other action permitted or required by the Seventh
Issuer Transaction Documents not inconsistent with the Trust
Indenture Act.
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4.2 ON PAYMENT OR DISCHARGE OF SEVENTH ISSUER SECURED OBLIGATIONS
Upon the irrevocable and unconditional payment or discharge (or any
combination of the foregoing) of all the Seventh Issuer Secured
Obligations, the Security Trustee shall, at the written request and cost
of the Seventh Issuer, release, reassign or discharge the Seventh Issuer
Charged Property to, or to the order of, the Seventh Issuer.
4.3 DISPOSAL OF AUTHORISED INVESTMENTS
Upon the Seventh Issuer Cash Manager, on behalf of the Seventh Issuer and
the Security Trustee, making a disposal of any Authorised Investment
charged pursuant to CLAUSE 3.3 (Authorised Investments), the Security
Trustee shall, if so requested in writing by and at the sole cost and
expense (on an indemnity basis) of the Seventh Issuer, but without being
responsible for any loss, costs, claims or liabilities whatsoever
occasioned and howsoever arising by so acting upon such request, release,
reassign or discharge from the encumbrances constituted by this Deed the
relevant Authorised Investments, provided that the proceeds of such
disposal are paid into an account charged pursuant to CLAUSES 3.2
(Seventh Issuer Accounts) in accordance with CLAUSE 5.5 (Authorised
Investments).
4.4 WITHDRAWALS FROM SEVENTH ISSUER ACCOUNTS
From time to time there shall be deemed to be released from the
encumbrances constituted by this Deed all amounts which the Seventh
Issuer Cash Manager, on behalf of the Seventh Issuer and the Security
Trustee, is permitted to withdraw from the Seventh Issuer Accounts
pursuant to CLAUSES 5.2 (Pre-Enforcement Priorities of Payment) and
CLAUSE 5.3 (Payments under the Seventh Issuer Cash Management Agreement)
and any such release will take effect immediately upon the relevant
withdrawal being made provided that where the relevant amount is
transferred to another bank account of the Seventh Issuer such bank
account shall thereupon become subject to the encumbrances constituted by
this Deed.
5. PAYMENTS OUT OF THE SEVENTH ISSUER ACCOUNTS, AUTHORISED INVESTMENTS AND
APPLICATION OF CASH PRIOR TO ENFORCEMENT
5.1 FOLLOWING SERVICE OF A SEVENTH ISSUER NOTE ACCELERATION NOTICE
(a) On each Seventh Issuer Note Determination Date following the service of a
Seventh Issuer Note Acceleration Notice (but prior to the service of an
Intercompany Loan Acceleration Notice on Funding 1) in respect of the
Seventh Issuer, the Security Trustee shall determine the amount of any
Seventh Issuer Principal Receipts and/or the sum recovered by the
Security Trustee (or the Receiver appointed on its behalf) available as
at the following Interest Payment Date.
(b) No payment, transfer or withdrawal from the Seventh Issuer Accounts may
be made under this CLAUSE 5 at any time after a Seventh Issuer Note
Acceleration Notice has been served in respect of the Seventh Issuer.
5.2 PRE-ENFORCEMENT PRIORITIES OF PAYMENT
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), but prior to the service of a
Seventh Issuer Note Acceleration Notice on the Seventh Issuer, the
Seventh Issuer Cash Manager, on behalf of the Seventh Issuer and the
Security Trustee, shall:
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(a) withdraw, or shall instruct the Seventh Issuer Account Bank or
cause the Seventh Issuer Account Bank to be instructed, to withdraw
(unless the intended recipient of the relevant payment agrees
otherwise) moneys from the Seventh Issuer Accounts (subject to
CLAUSE 5.8 (VAT) below) to be applied in the order of priority on
the specified dates (and in each case only if and to the extent
that payments or provisions of a higher order of priority have been
made in full and to the extent that such withdrawal does not cause
the Seventh Issuer Accounts to become overdrawn) as set out in
Schedule 2 of the Seventh Issuer Cash Management Agreement (the
SEVENTH ISSUER PRE-ENFORCEMENT PRIORITY OF PAYMENTS); and
(b) instruct the Seventh Issuer Swap Providers to pay to the specified
bank account of the Principal Paying Agent amounts due to be paid
on dates specified in the Seventh Issuer Swap Agreements.
5.3 PAYMENTS UNDER THE SEVENTH ISSUER CASH MANAGEMENT AGREEMENT
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), but prior to the service of a
Seventh Issuer Note Acceleration Notice on the Seventh Issuer, the
Seventh Issuer Cash Manager, on behalf of the Seventh Issuer and the
Security Trustee, shall withdraw, or shall instruct the Seventh Issuer
Account Bank or cause the Seventh Issuer Account Bank to be instructed,
to withdraw (unless the intended recipient of the relevant payment agrees
otherwise) moneys from the Seventh Issuer Accounts for application on any
Business Day in making any payments due to be made subject to and in
accordance with the Seventh Issuer Cash Management Agreement (but only to
the extent that such withdrawal does not cause the Seventh Issuer
Accounts to become overdrawn).
5.4 INVESTMENTS IN AUTHORISED INVESTMENTS
The Security Trustee may, to the extent that it is permitted to do so
under the FSMA, request the Seventh Issuer Cash Manager to (or the
Seventh Issuer Cash Manager may request the Security Trustee to) invest
in the names of the Security Trustee and the Seventh Issuer, jointly,
moneys standing from time to time and at any time standing to the credit
of the Seventh Issuer Accounts in Authorised Investments in accordance
with the following provisions:
(a) any costs properly and reasonably incurred in making and changing
investments will be reimbursed to the Seventh Issuer Cash Manager
and the Security Trustee; and
(b) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Seventh Issuer
Accounts.
5.5 AUTHORISED INVESTMENTS
Notwithstanding the security rights created by or pursuant to CLAUSE 3
(Security and Declaration of Trust), Authorised Investments may, on any
Business Day, be sold or redeemed or disposed of or realised or otherwise
deposited subject always to the other provisions hereof (including
without limitation CLAUSES 3.3 (Authorised Investments) and 4.3 (Disposal
of Authorised Investments)).
5.6 MANAGEMENT AND APPLICATION OF FUNDS
The Seventh Issuer shall take or cause to be taken such action as may
from time to time be necessary on its part to ensure that the Seventh
Issuer Accounts shall from time to time be
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credited with all amounts received by the Seventh Issuer and falling
within any of the following categories:
(a) amounts received by the Seventh Issuer from or on behalf of Funding
1 pursuant to the provisions of the Seventh Issuer Intercompany
Loan Agreement;
(b) interest received on the Seventh Issuer Accounts;
(c) amounts received by the Seventh Issuer from the Swap Providers
under the Seventh Issuer Swap Agreements;
(d) the proceeds arising from the disposal of any Authorised
Investments and any and all income or other distributions received
by the Seventh Issuer in respect thereof or arising from the
proceeds of any Authorised Investments;
(e) amounts received by the Seventh Issuer from the Security Trustee in
its capacity as security trustee under the Funding 1 Deed of Charge
or a Receiver following the service of an Intercompany Loan
Acceleration Notice; and
(f) such other payments received by the Seventh Issuer as are, or ought
in accordance with this Deed to be, comprised in the Seventh Issuer
Charged Property.
5.7 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Security Trustee enforces the Seventh Issuer Security at a time
when either no amounts or not all amounts owing in respect of the Seventh
Issuer Secured Obligations have become due and payable, the Security
Trustee (or a Receiver) may, for so long as no such amounts or not all
such amounts have become due and payable, pay any monies referred to in
CLAUSE 6 (Payments out of the Seventh Issuer Accounts Upon Enforcement)
into, and retain such monies in, an interest-bearing account (a RETENTION
ACCOUNT) to be held by it as security and applied by it in accordance
with CLAUSE 6 (Payments out of the Seventh Issuer Accounts Upon
Enforcement) as and when any of the amounts referred to therein become
due and payable.
5.8 VAT
If any sums which are payable by the Seventh Issuer under CLAUSE 5.2
(Pre-Enforcement Priorities of Payments) or CLAUSE 6 (Payments out of
Seventh Issuer Accounts upon Enforcement) of this Deed are subject to
VAT, the Seventh Issuer shall make payment of the amount in respect of
VAT to the relevant person in accordance with the order of priorities set
out in those clauses.
6. PAYMENTS OUT OF THE SEVENTH ISSUER ACCOUNTS UPON ENFORCEMENT
6.1 AFTER A SEVENTH ISSUER NOTE ACCELERATION NOTICE
From and including the time when a Seventh Issuer Note Acceleration
Notice (which has not been withdrawn) has been served on the Seventh
Issuer:
(a) no amount may be withdrawn from the Seventh Issuer Accounts without
the prior written consent of the Security Trustee; and
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(b) if not already crystallised, any charge created under or pursuant
to this Deed, which is a floating charge, shall immediately and
without further action on the part of the Security Trustee,
crystallise.
6.2 PAYMENT OF SEVENTH ISSUER REVENUE RECEIPTS AFTER SERVICE OF A SEVENTH
ISSUER NOTE ACCELERATION NOTICE BUT PRIOR TO THE SERVICE OF AN
INTERCOMPANY LOAN ACCELERATION NOTICE
From and including the time when a Seventh Issuer Note Acceleration
Notice has been served on the Seventh Issuer but prior to the service of
an Intercompany Loan Acceleration Notice, all Seventh Issuer Revenue
Receipts received or recovered by the Security Trustee or any Receiver
for the benefit of the Seventh Issuer Secured Creditors in respect of the
Seventh Issuer Secured Obligations shall be held by the Security Trustee
or any Receiver, as the case may be, on trust to be applied in accordance
with CLAUSES 5.2 (Pre-Enforcement Priorities of Payment) to 5.6
(Management and Application of Funds) (inclusive) and 5.7 (Enforcement
when not all Amounts due and payable) but as if:
(a) each of the references in the Seventh Issuer Pre-Enforcement
Revenue Priority of Payments to the Security Trustee included a
reference to any Receiver appointed by the Security Trustee;
(b) any reference in the Seventh Issuer Pre-Enforcement Revenue
Priority of Payments to an amount payable by the Seventh Issuer
which is not a Seventh Issuer Secured Obligation were deleted; and
(c) CLAUSE 5.2 (Pre-Enforcement Priorities of Payment) and the Seventh
Issuer Pre-Enforcement Revenue Priority of Payments were expressed
to be subject to the provisions of CLAUSE 5.7 (Enforcement When Not
All Amounts Due and Payable).
6.3 PAYMENT OF SEVENTH ISSUER PRINCIPAL RECEIPTS AFTER SERVICE OF A SEVENTH
ISSUER NOTE ACCELERATION NOTICE BUT PRIOR TO THE SERVICE OF AN INTERCOMPANY
LOAN ACCELERATION NOTICE
From and including the time when a Seventh Issuer Note Acceleration
Notice has been served on the Seventh Issuer but prior to the service of
an Intercompany Loan Acceleration Notice, all Seventh Issuer Principal
Receipts received or recovered by the Security Trustee or any Receiver
for the benefit of the Seventh Issuer Secured Creditors in respect of the
Seventh Issuer Secured Obligations shall be held by it on trust to be
applied (save to the extent required otherwise by law) on each Interest
Payment Date in the following order of priority (in each case only if and
to the extent that payments or provisions of a higher order of priority
have been made in full):
(a) first, pro rata and pari passu to repay the Seventh Issuer Class A
Notes as follows:
(i) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 1 Term AAA
Advance on each Funding 1 Interest Payment Date, shall be paid
by the Seventh Issuer to the Series 1 Class A Seventh Issuer
Swap Provider, and on each Interest Payment Date the Series 1
Class A Seventh Issuer Notes will be redeemed in amounts
corresponding to the principal exchange amounts (if any)
received from the Series 1 Class A Seventh Issuer Swap Provider
under the Series 1 Class A Seventh Issuer Swap;
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(ii) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 2 Term AAA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Seventh Issuer to the Series 2 Class A Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 2 Class A Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 2 Class A Seventh Issuer Swap
Provider under the Series 2 Class A Seventh Issuer Swap;
(iii) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 3 Term AAA
Advance on each Funding 1 Interest Payment Date shall be
paid by the Seventh Issuer to the Series 3 Class A Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 3 Class A Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 3 Class A Seventh Issuer Swap
Provider under the Series 3 Class A Seventh Issuer Swap;
(iv) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 4 Term AAA
Advance on each Funding 1 Interest Payment Date, shall be
applied by the Seventh Issuer to redeem the Series 4 Class A
Seventh Issuer Notes on such Interest Payment Date;
(v) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 5 Term AAA
Advance on each Funding 1 Interest Payment Date shall be
applied by the Seventh Issuer to redeem the Series 5 Class A
Seventh Issuer Notes on such Interest Payment Date; and
(b) secondly, pro rata and pari passu, to repay the Seventh Issuer
Class B Notes as follows:
(i) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 1 Term AA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Seventh Issuer to the Series 1 Class B Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 1 Class B Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 1 Class B Seventh Issuer Swap
Provider under the Series 1 Class B Seventh Issuer Swap;
(ii) anyprincipal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 2 Term AA
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Seventh Issuer to the Series 2 Class B Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 2 Class B Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 2 Class B Seventh Issuer Swap
Provider under the Series 2 Class B Seventh Issuer Swap;
(iii) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 3 Term AA
Advance on each Funding 1 Interest Payment Date shall be
paid by the Seventh Issuer to the Series 3 Class B Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 3 Class B Seventh Issuer Notes will be redeemed in
amounts
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corresponding to the principal exchange amounts (if any)
received from the Series 3 Class B Seventh Issuer Swap
Provider under the Series 3 Class B Seventh Issuer Swap ;
and
(iv) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 4 Term AA
Advance on each Funding 1 Interest Payment Date, shall be
applied by the Sixth Issuer to redeem the Series 4 Class B
Sixth Issuer Notes on such Interest Payment Date;
(c) thirdly, pro rata and pari passu to repay the Seventh Issuer Class
C Notes as follows:
(i) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 1 Term BBB
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Seventh Issuer to the Series 1 Class C Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 1 Class C Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 1 Class C Seventh Issuer Swap
Provider under the Series 1 Class C Seventh Issuer Swap;
(ii) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 2 Term BBB
Advance on each Funding 1 Interest Payment Date, shall be
paid by the Seventh Issuer to the Series 2 Class C Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 2 Class C Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 2 Class C Seventh Issuer Swap
Provider under the Series 2 Class C Seventh Issuer Swap;
(iii) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 3 Term BBB
Advance on each Funding 1 Interest Payment Date shall be
paid by the Seventh Issuer to the Series 3 Class C Seventh
Issuer Swap Provider, and on each Interest Payment Date the
Series 3 Class C Seventh Issuer Notes will be redeemed in
amounts corresponding to the principal exchange amounts (if
any) received from the Series 3 Class C Seventh Issuer Swap
Provider under the Series 3 Class C Seventh Issuer Swap; and
(iv) any principal amounts received by the Seventh Issuer from
Funding 1 in respect of the Seventh Issuer Series 4 Term BBB
Advance on each Funding 1 Interest Payment Date, shall be
applied by the Seventh Issuer to redeem the Series 4 Class C
Seventh Issuer Notes on such Interest Payment Date;
6.4 PAYMENT OF SEVENTH ISSUER REVENUE RECEIPTS AND SEVENTH ISSUER PRINCIPAL
RECEIPTS AFTER SERVICE OF A SEVENTH ISSUER NOTE ACCELERATION NOTICE AND
SERVICE OF AN INTERCOMPANY LOAN ACCELERATION NOTICE
All Seventh Issuer Revenue Receipts and Seventh Issuer Principal Receipts
received or recovered by the Security Trustee or any Receiver, after the
service of a Seventh Issuer Note Acceleration Notice and after the
service of an Intercompany Loan Acceleration Notice, for the benefit of
the Seventh Issuer Secured Creditors in respect of the Seventh Issuer
Secured Obligations, shall be held by it in the Seventh Issuer Accounts
on trust to be applied (save to the extent required otherwise by law), on
each Interest Payment Date, in the following order
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of priority (and, in each case, only if and to the extent that payments
or provisions of a higher order of priority have been made in full):
(a) first, to pay pro rata and pari passu amounts due to:
(i) the Security Trustee and any Receiver appointed by the
Security Trustee together with interest and any amount in
respect of VAT on those amounts and any amounts then due or
to become due to the Security Trustee and the Receiver under
the provisions of this Deed;
(ii) the Note Trustee together with interest and any amount in
respect of VAT on those amounts and any amounts then due or
to become due and payable to the Note Trustee under the
provisions of this Deed; and
(iii) the Agent Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amount in
respect of VAT on those amounts and any costs, charges,
liabilities and expenses then due or to become due and
payable to them under the provisions of the Seventh Issuer
Paying Agent and Agent Bank Agreement;
(b) secondly, to pay pro rata and pari passu amounts due and payable
(together with any amount in respect of VAT on those amounts) to
the Seventh Issuer Cash Manager under the Seventh Issuer Cash
Management Agreement and to the Corporate Services Provider under
the Seventh Issuer Corporate Services Agreement and to the Seventh
Issuer Account Bank under the Seventh Issuer Bank Account
Agreement;
(c) thirdly, to pay pro rata and pari passu:
(i) amounts due to the Series 1 Class A Seventh Issuer Swap
Provider in respect of the Series 1 Class A Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 1 Class A Seventh
Issuer Swap Provider in respect of the Series 1 Class A
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 1 Class A Seventh Issuer Notes;
(ii) amounts due to the Series 2 Class A Seventh Issuer Swap
Provider in respect of the Series 2 Class A Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 2 Class A Seventh
Issuer Swap Provider in respect of the Series 2 Class A
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 2 Class A Seventh Issuer Notes;
(iii) amounts due to the Series 3 Class A Seventh Issuer Swap
Provider in respect of the Series 3 Class A Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 3 Class A Seventh
Issuer Swap Provider in respect of the Series 3 Class A
Seventh Issuer Swap to pay interest due and payable on the
Series 3 Class A Seventh Issuer Notes;
(iv) interest and principal on the Series 4 Class A Seventh
Issuer Notes ; and
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(v) interest and principal on the Series 5 Class A Seventh
Issuer Notes;
(d) fourthly, to pay pro rata and pari passu:
(i) amounts due to the Series 1 Class B Seventh Issuer Swap
Provider in respect of the Series 1 Class B Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 1 Class B Seventh
Issuer Swap Provider in respect of the Series 1 Class B
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 1 Class B Seventh Issuer Notes;
(ii) amounts due to the Series 2 Class B Seventh Issuer Swap
Provider in respect of the Series 2 Class B Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 2 Class B Seventh
Issuer Swap Provider in respect of the Series 2 Class B
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 2 Class B Seventh Issuer Notes;
(iii) amounts due to the Series 3 Class B Seventh Issuer Swap
Provider in respect of the Series 3 Class B Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 3 Class B Seventh
Issuer Swap Provider in respect of the Series 3 Class B
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 3 Class B Seventh Issuer Notes; and
(iv) interest and principal on the Series 4 Class B Seventh
Issuer Notes ;
(e) fifthly, to pay pro rata and pari passu:
(i) amounts due to the Series 1 Class C Seventh Issuer Swap
Provider in respect of the Series 1 Class C Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 1 Class C Seventh
Issuer Swap Provider in respect of the Series 1 Class C
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 1 Class C Seventh Issuer Notes;
(ii) amounts due to the Series 2 Class C Seventh Issuer Swap
Provider in respect of the Series 2 Class C Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 2 Class C Seventh
Issuer Swap Provider in respect of the Series 2 Class C
Seventh Issuer Swap to pay interest and principal due and
payable on the Series 2 Class C Seventh Issuer Notes;
(iii) amounts due to the Series 3 Class C Seventh Issuer Swap
Provider in respect of the Series 3 Class C Seventh Issuer
Swap (including any termination payment but excluding any
related Seventh Issuer Swap Excluded Termination Amount) and
from amounts received from the Series 3 Class C Seventh
Issuer Swap Provider in respect of the Series 3 Class C
Seventh
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Issuer Swap to pay interest and principal due and payable on
the Series 3 Class C Seventh Issuer Notes; and
(iv) interest and principal on the Series 4 Class C Seventh
Issuer Notes ;
(f) sixthly, to pay pro rata and pari passu amounts due to:
(i) the Series 1 Seventh Issuer Swap Provider, following a
Seventh Issuer Swap Provider Default or a Seventh Issuer
Swap Provider Downgrade Termination Event by the Series 1
Seventh Issuer Swap Provider;
(ii) the Series 2 Seventh Issuer Swap Provider, following a
Seventh Issuer Swap Provider Default or a Seventh Issuer
Swap Provider Downgrade Termination Event by the Series 2
Seventh Issuer Swap Provider; and
(iii) the Series 3 Seventh Issuer Swap Provider, following a
Seventh Issuer Swap Provider Default or a Seventh Issuer
Swap Provider Downgrade Termination Event by the Series 3
Seventh Issuer Swap Provider.
6.5 SUBORDINATION
(a) Each of the Seventh Issuer Secured Creditors hereby agree to be
bound by the order of priority set out in the Seventh Issuer Pre-
Enforcement Priority of Payments or the Seventh Issuer Post-
Enforcement Priority of Payments (as applicable). Without prejudice
to CLAUSE 20, each of the Seventh Issuer Secured Creditors further
agree with each other party to this Deed that, notwithstanding any
other provision contained herein or in any other Seventh Issuer
Transaction Document:
(i) it will not demand or receive payment of any distribution in
respect of, or on account of, any amounts payable by the
Seventh Issuer or the Security Trustee (as applicable) to that
Seventh Issuer Secured Creditor under the Seventh Issuer
Transaction Documents, in cash or in kind, and will not apply
any money or assets in discharge of any such amounts payable to
it (whether by set-off or by any other method), unless all
amounts then due and payable by the Seventh Issuer to all other
Seventh Issuer Secured Creditors ranking higher in the order of
priority set out in the Seventh Issuer Pre-Enforcement Priority
of Payments or the Seventh Issuer Post-Enforcement Priority of
Payments (as applicable) have been paid in full; and
(ii)without prejudice to the foregoing, whether in the liquidation
of the Seventh Issuer or any other party to the Seventh Issuer
Transaction Documents or otherwise, if any payment or
distribution (or the proceeds of any enforcement of any
security) is received by a Seventh Issuer Secured Creditor in
respect of any amount payable by the Seventh Issuer or the
Security Trustee (as applicable) to that Seventh Issuer Secured
Creditor under a Seventh Issuer Transaction Document at a time
when, by virtue of the provisions of the relevant Seventh
Issuer Transaction Document and this Deed, no payment or
distribution should have been made, the amount so received
shall be held by the Seventh Issuer Secured Creditor upon trust
for the entity from which such payment was received and shall
be paid over to such entity as soon as is reasonably
practicable following the earlier of, (i) receipt of written
notice from such entity and (ii) actual knowledge of such
Seventh Issuer Secured Creditor, in each case, that such
payment or distribution should not have been
14
made (whereupon the relevant payment or distribution shall be
deemed not to have been made or received).
(b) The Security Trustee shall not pay or repay, or make any
distribution in respect of, any amount owing to a Seventh Issuer
Secured Creditor under the relevant Seventh Issuer Transaction
Documents, in cash or in kind, unless and until all amounts then
due and payable by the Security Trustee to all other Seventh Issuer
Secured Creditors ranking higher in the order of priority set out
in the Seventh Issuer Pre-Enforcement Priority of Payment or the
Seventh Issuer Post-Enforcement Priority of Payments (as
applicable) have been paid in full based on the information
provided to it by the Seventh Issuer Cash Manager and/or the
Seventh Issuer.
(c) Where amounts owing to a group of Seventh Issuer Secured Creditors
under the relevant Seventh Issuer Transaction Documents are
expressed to be required to be made pari passu and pro rata among
such group, the Security Trustee shall not pay or repay, or make
any distribution in respect of, such amounts to a Seventh Issuer
Secured Creditor of such group, in cash or in kind, except on a
pari passu and pro rata basis among such group.
7. CONFLICT
7.1 SEVENTH ISSUER SECURED CREDITORS
Subject to CLAUSE 7.2 (Noteholders) and except as otherwise expressly
provided in this Deed, the Security Trustee shall have regard to the
interests of the Seventh Issuer Secured Creditors only as regards the
exercise and performance of all powers, rights, trusts, authorities,
duties and discretions of the Security Trustee in respect of the Seventh
Issuer Charged Property, under this Deed or any other Seventh Issuer
Transaction Document to which the Security Trustee is a party or the
rights or benefits in respect of which are comprised in the Seventh
Issuer Charged Property (except where specifically provided otherwise).
7.2 NOTEHOLDERS
(a) If (in the Security Trustee's sole opinion) there is or may be a
conflict of interest between the Class A Noteholders and any other
Seventh Issuer Secured Creditor, then, save as provided herein and
subject to Condition 11 of the Seventh Issuer Notes, the Security
Trustee will have regard to the interests of the Class A
Noteholders only;
(b) subject to paragraph (a) above, if (in the Security Trustee's sole
opinion) there is or may be a conflict of interest between the
Class B Noteholders and any other Seventh Issuer Secured Creditor
then, save as provided herein and subject to Condition 11 of the
Seventh Issuer Notes, the Security Trustee will have regard to the
interests of the Class B Noteholders only;
(c) subject to paragraph (a) and (b) above, if (in the Security
Trustee's sole opinion) there is or may be a conflict of interest
between the Class C Noteholder and any other Seventh Issuer Secured
Creditor then, save as provided herein and subject to Condition 11
of the Seventh Issuer Notes, the Security Trustee will have regard
to the interest of the Class C Noteholders only;
(d) subject to paragraphs (a) to (c) above and paragraphs (e) and (f)
below, if (in the Security Trustee's sole opinion) there is or may
be a conflict between the respective interests of the Seventh
Issuer Swap Providers and any of the other Seventh Issuer
15
Secured Creditors, other than the Noteholders, the Security Trustee
will have regard to the interests of the Seventh Issuer Swap
Providers;
(e) subject to paragraph (f) below if, in the Security Trustee's sole
opinion, there is a conflict between the respective interests of
the Seventh Issuer Swap Providers then the Security Trustee will
have regard to the interests of the highest ranking swap providers
(being the Series 1 Class A Seventh Issuer Swap Provider, the
Series 2 Class A Seventh Issuer Swap Provider and the Series 3
Class A Seventh Issuer Swap Provider) only; and thereafter the
Security Trustee will have regard to the next highest ranking swap
providers (being the Series 1 Class B Seventh Issuer Swap Provider,
the Series 2 Class B Seventh Issuer Swap Provider and the Series 3
Class B Seventh Issuer Swap Provider) and so on;
(f) subject to paragraphs (a) to (e) above, if (in the Security
Trustee's sole opinion) there is or may be a conflict between the
respective interests of any of the Seventh Issuer Secured
Creditors, other than the Noteholders and the Seventh Issuer Swap
Providers, the Security Trustee will have regard to the interests
of the Seventh Issuer Secured Creditor who ranks highest in the
order of priority of payments set out in CLAUSE 6.4 (Payment of
Seventh Issuer Revenue Receipts and Seventh Issuer Principal
Receipts after service of a Seventh Issuer Note Acceleration Notice
and service of an Intercompany Loan Acceleration Notice) above.
7.3 ACKNOWLEDGEMENT
Each of the Seventh Issuer Secured Creditors hereby acknowledges and
concurs with the provisions of CLAUSES 7.1 (Seventh Issuer Secured
Creditors) and 7.2 (Noteholders) and each of them agrees that it shall
have no claim against the Security Trustee as a result of the application
thereof.
8. THE SECURITY TRUSTEE'S POWERS
8.1 PRIOR NOTIFICATION
The Security Trustee shall, if reasonably practicable, give prior
notification to the Seller of the Security Trustee's intention to enforce
the security created by this Deed, provided always that the failure of
the Security Trustee to provide such notification shall not prejudice the
ability of the Security Trustee to enforce the security created by this
Deed.
8.2 ENFORCEABLE
Without prejudice to the provisions of CLAUSES 8.5 (Law of Property Act
1925) and 9.1 (Appointment), (a) the security created under this Deed
shall become immediately enforceable and (b) the power of sale and other
powers conferred by Section 101 of the Law of Property Act 1925 (the 1925
ACT), as varied or amended by this Deed, shall, in accordance with this
CLAUSE 8, be exercisable by the Security Trustee, in each case at any
time following service of a Seventh Issuer Note Acceleration Notice or,
if there are no Seventh Issuer Notes outstanding, following a default in
payment of any other Seventh Issuer Secured Obligations on its due date.
Without prejudice to the effectiveness of any service of the Seventh
Issuer Note Acceleration Notice, the Note Trustee shall serve a copy of
any Seventh Issuer Note Acceleration Notice on each of the Seventh Issuer
Secured Creditors, Funding 1 and the Rating Agencies.
16
8.3 AMOUNTS DUE
Notwithstanding any other provision of this Deed, all amounts owing under
the Seventh Issuer Secured Obligations shall be deemed to have become due
for the purposes of Section 101 of the 1925 Act and (to the extent
applicable) the statutory power of sale and of appointing a Receiver
which are conferred on the Security Trustee under the 1925 Act (as varied
or extended by this Deed) only (and for no other purpose) and all other
powers shall be deemed to arise immediately after execution of this Deed
but shall only become enforceable in accordance with CLAUSE 8.2
(Enforceable) above. For the avoidance of doubt, the Security Trustee
shall not be required to have regard to the interests of the Seventh
Issuer in the exercise of its rights, powers, authorities, discretions
and remedies under this Deed.
8.4 POWER OF SALE
Section 103 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed and the statutory power of sale (as
extended by this Deed) and all other powers shall be exercisable at any
time after service of a Seventh Issuer Note Acceleration Notice.
8.5 LAW OF PROPERTY ACT 1925
The provisions of the 1925 Act relating to the power of sale and the
other powers conferred by Section 101(1) and (2) are hereby extended in
relation to the Seventh Issuer (as if such extensions were contained
therein) to authorise the Security Trustee at its absolute discretion at
any time following the occurrence of a Seventh Issuer Note Event of
Default and subject to the Security Trustee being indemnified and/or
secured to its satisfaction in relation to the exercise of such powers:
(a) to make demand in the name of the Seventh Issuer Secured Creditors
or in its own right for any moneys and liabilities in respect of
the Seventh Issuer Charged Property;
(b) to sell, transfer, convey, vary or otherwise dispose of the Seventh
Issuer's title to or interest in the Seventh Issuer Charged
Property, and to do so for any shares, debentures or other
securities including, without limitation, any Authorised
Investments whatsoever comprising part thereof, or in consideration
of an agreement to pay all or part of the purchase price at a later
date or dates, or an agreement to make periodical payments, whether
or not the agreement is secured by an Encumbrance or a guarantee,
or for such other consideration whatsoever as the Security Trustee
may in its absolute discretion think fit, and also to grant any
option to purchase, and to effect exchanges of, the whole or any
part of the Seventh Issuer Charged Property (and nothing shall
preclude any such disposal being made to a Seventh Issuer Secured
Creditor);
(c) with a view to or in connection with the sale of the Seventh Issuer
Charged Property, to carry out any transaction, scheme or
arrangement which the Security Trustee may, in its absolute
discretion, consider appropriate;
(d) to insure the Seventh Issuer Charged Property against such risks
and for such amounts as the Security Trustee may in its absolute
discretion consider prudent; and
(e) to do all or any of the things or exercise all or any of the powers
which are mentioned or referred to in CLAUSE 9.6 (Powers) as if
each of them was expressly conferred on the Security Trustee by
this Deed and which may not be included in paragraphs (a) to (d)
above.
17
8.6 DELEGATION TO RECEIVER
In addition and without prejudice to any of its statutory powers, the
Security Trustee may at any time by deed delegate to any Receiver all or
any of the extended powers of leasing, surrendering or accepting
surrenders of leases conferred on the Security Trustee by this Deed.
8.7 ADDITIONAL POWERS
The Security Trustee shall have the power to insure against any
liabilities or obligations arising:
(a) as a result of the Security Trustee acting or failing to act in a
certain way (other than which may arise from its negligence or
wilful default or that of its officers or employees);
(b) as a result of any act or failure to act by any person or persons
to whom the Security Trustee has delegated any of its trusts,
rights, powers, duties, authorities or discretions, or appointed as
its agent (other than which may arise from such person's negligence
or wilful default);
(c) in connection with the Seventh Issuer Charged Property; or
(d) in connection with or arising from the enforcement of the security
created by this Deed.
The Security Trustee shall not be under any obligation to insure in
respect of such liabilities and/or obligations or to require any other
person to maintain insurance, but to the extent that it does so, the
Seventh Issuer shall quarterly and on written request pay all insurance
premiums and expenses which the Security Trustee may properly incur in
relation to such insurance. If the Seventh Issuer fails to pay such
premiums or expenses or to reimburse the Security Trustee therefor, the
Security Trustee shall be entitled to be indemnified out of the Seventh
Issuer Charged Property in respect thereof and, in the case of a Seventh
Issuer Note Acceleration Notice having been served, the indemnification
of the Security Trustee in respect of all such insurance premiums and
expenses shall be payable in priority to payments to the Seventh Issuer
Noteholders and all other Seventh Issuer Secured Creditors and otherwise
in accordance with this Deed.
8.8 APPLICATION TO COURT
The Security Trustee may at any time after the occurrence of a Seventh
Issuer Note Event of Default apply to the Court for an order that the
powers and trusts of this Deed be exercised or carried into execution
under the direction of the Court and for the appointment of a Receiver of
the Seventh Issuer Charged Property or any part thereof and for any other
order in relation to the execution and administration of the powers and
trusts hereof as the Security Trustee shall deem expedient, and it may
assent to or approve any application to the Court made at the instance of
any of the Seventh Issuer Noteholders.
8.9 AUTHORISED INVESTMENTS
Any moneys which under the trusts of this Deed ought to or may be
invested by the Security Trustee, to the extent that it is permitted to
do so under the FSMA, (or by the Cash Manager on its behalf) after the
occurrence of a Seventh Issuer Note Event of Default may be invested in
the name of the Security Trustee or in the name of any nominee on its
behalf and under the control of the Security Trustee in any Authorised
Investments and the Security Trustee may at
18
any time vary or transfer (or direct the Cash Manager to vary or
transfer) any of such Authorised Investments for or into other such
Authorised Investments as the Security Trustee at its absolute discretion
may determine, and shall not be responsible (save where any loss results
from the Security Trustee's fraud, wilful default or negligence or that
of its officers or employees) for any loss occasioned by reason of any
such investments whether by depreciation in value or otherwise, provided
that such Authorised Investments were made in accordance with the
foregoing provisions.
8.10 DEFICIENCY OR ADDITIONAL PAYMENT
The Security Trustee shall have no responsibility whatsoever to any
Seventh Issuer Secured Creditor as regards any deficiency or additional
payment, as the case may be, which might arise because the Security
Trustee is subject to any Tax in respect of the Seventh Issuer Charged
Property or any part thereof or any income therefrom or any proceeds
thereof or is required to make any withholding or deduction from any
payment to any Seventh Issuer Secured Creditor.
8.11 APPLICATION OF FUNDS
If, after the service of a Seventh Issuer Note Acceleration Notice, the
amount of the moneys at any time available for payment of principal and
interest in respect of any Seventh Issuer Notes under CLAUSE 6 (Payments
out of the Seventh Issuer Accounts upon Enforcement) shall be less than
one-tenth of the Principal Amount Outstanding of all the Seventh Issuer
Notes then outstanding, the Security Trustee may, at its absolute
discretion, invest such moneys to the extent that it is permitted to do
so under the FSMA 2000 in any Authorised Investments and the Security
Trustee may at any time vary or transfer any of such Authorised
Investments for or into other such Authorised Investments as the Security
Trustee at its absolute discretion may determine; and such investments
with the resulting income thereof may be accumulated until the
accumulations, together with any other funds for the time being under the
control of the Security Trustee and applicable for the purpose, shall
amount to a sum equal to at least one-tenth of the Principal Amount
Outstanding of all the Seventh Issuer Notes then outstanding and such
accumulations and funds shall then be applied in accordance with CLAUSE 6
(Payments out of the Seventh Issuer Accounts upon Enforcement).
9. RECEIVER
9.1 APPOINTMENT
(a) Subject to paragraph (b) below, at any time following the
occurrence of a Seventh Issuer Note Event of Default, the Security
Trustee may, at its absolute discretion, appoint, by writing or by
deed, such person or persons (including an officer or officers of
the Security Trustee) as the Security Trustee thinks fit, to be
Receiver of the Seventh Issuer Charged Property or any part thereof
and, in the case of an appointment of more than one person, to act
together or independently of the other or others.
(b) The Security Trustee may not appoint an administrative receiver,
receiver, manager or receiver and manager pursuant to paragraph (a)
above solely as a result of the obtaining of a moratorium (or
anything done with a view to obtaining a moratorium) under the
Insolvency Act 2000 except with leave of the court.
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9.2 REMOVAL AND REPLACEMENT
Except as otherwise required by statute, the Security Trustee may by
writing or by deed remove any Receiver and appoint another in its place
or to act with any Receiver and the Security Trustee may apply to the
Court for an order removing an administrative receiver.
9.3 EXTENT OF APPOINTMENT
The exclusion of any part of the Seventh Issuer Charged Property from the
appointment of any Receiver shall not preclude the Security Trustee from
subsequently extending its appointment (or that of any Receiver replacing
it) to that part of the Seventh Issuer Charged Property or appointing
another Receiver over any other part of the Seventh Issuer Charged
Property.
9.4 AGENT OF THE SEVENTH ISSUER
Any Receiver shall, so far as the law permits, be the agent of the
Seventh Issuer and the Seventh Issuer alone shall be responsible for such
Receiver's contracts, engagements, acts, omissions, misconduct,
negligence or default and for liabilities incurred by him and in no
circumstances whatsoever shall the Security Trustee be in any way
responsible for or incur any liability in connection with such Receiver's
contracts, engagements, acts, omissions, misconduct, negligence or
default, and if a liquidator of the Seventh Issuer shall be appointed,
such Receiver shall act as principal and not as agent for the Security
Trustee. Notwithstanding the generality of the foregoing, such Receiver
shall in the exercise of his powers, authorities and discretions conform
to the regulations (if any) from time to time made and given in writing
by the Security Trustee.
9.5 REMUNERATION
The remuneration of any Receiver shall be fixed by the Security Trustee
and may be or include a commission calculated by reference to the gross
amount of all moneys received or otherwise and may include remuneration
in connection with claims, actions or proceedings made or brought against
such Receiver by the Seventh Issuer or any other person or the
performance or discharge of any obligation imposed upon him by statute or
otherwise, but subject to CLAUSE 6 (Payments out of the Seventh Issuer
Accounts upon Enforcement), such remuneration shall be payable hereunder
by the Seventh Issuer. The amount of such remuneration shall be paid in
accordance with the terms and conditions and in the manner agreed from
time to time between such Receiver and the Security Trustee.
9.6 POWERS
Any Receiver of the Seventh Issuer, in addition to any powers conferred
on a Receiver by statute or common law, shall have the following powers:
(a) to take possession of, get in and collect the Seventh Issuer
Charged Property (or such part thereof in respect of which it may
be appointed) or any part thereof including income whether accrued
before or after the date of his appointment;
(b) to carry on, manage, concur in or authorise the management of, or
appoint a manager of, the whole or any part of the business of the
Seventh Issuer;
(c) to sell, exchange, license, surrender, release, disclaim, abandon,
return or otherwise dispose of or in any way whatsoever deal with
the whole or any part of the Seventh Issuer Charged Property or any
interest in the Seventh Issuer Charged Property or any
20
part thereof for such consideration (if any) and upon such terms
(including by deferred payment or payment by instalments) as it may
think fit and to concur in any such transaction;
(d) to sell or concur in selling the whole or any part of the Seventh
Issuer's business whether as a going concern or otherwise;
(e) to appoint, engage, dismiss or vary the terms of employment of any
employees, officers, managers, agents and advisers of the Seventh
Issuer upon such terms as to remuneration and otherwise and for
such periods as he may determine;
(f) to insure, protect, maintain, repair, alter, improve, replace,
exploit, add to and develop or concur in so doing, the Seventh
Issuer Charged Property or any part thereof in any manner and for
any purpose whatsoever;
(g) in connection with the exercise or the proposed exercise of any of
its powers or in order to obtain payment of its remuneration
(whether or not it is already payable), to borrow or raise money
from any person without security or on the security of any of the
Seventh Issuer Charged Property and generally in such manner and on
such terms as it may think fit;
(h) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings concerning
the Seventh Issuer Charged Property or any part thereof;
(i) to transfer all or any of the Seventh Issuer Charged Property and/
or any of the liabilities of the Seventh Issuer to any other
company or body corporate, whether or not formed or acquired for
the purpose and to form a subsidiary or subsidiaries of the Seventh
Issuer;
(j) to call up or require the directors of the Seventh Issuer to call
up all or any portion of the uncalled capital for the time being of
the Seventh Issuer and to enforce payment of any call by action (in
the name of the Seventh Issuer or the Receiver as may be thought
fit);
(k) to redeem, discharge or compromise any Encumbrance from time to
time having priority to or ranking pari passu with this Deed;
(l) to effect or maintain indemnity insurance and other insurance
(including without limitation the Insurance Policies) and obtain
bonds and performance guarantees;
(m) in connection with the exercise of any of its powers, to execute or
do, or cause or authorise to be executed or done, on behalf of or
in the name of the Seventh Issuer or otherwise, as it may think
fit, all documents, receipts, registrations, acts or things which
it may consider appropriate;
(n) to exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Seventh Issuer
Charged Property or incidental to the ownership of or rights in or
to any of the Seventh Issuer Charged Property and to complete or
effect any transaction entered into by the Seventh Issuer and
complete, disclaim, abandon or modify all or any of the outstanding
contracts or arrangements of the Seventh Issuer relating to or
affecting the Seventh Issuer Charged Property;
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(o) to exercise all powers as are described in Schedule 1 to the
Insolvency Act 2000, whether or not the Receiver is an
"administrative receiver" as defined in that Act;
(p) to delegate its powers by way of power of attorney or in any other
manner to any person any right, power or discretion exercisable by
it under this Deed on the terms (including the power to sub-
delegate) and subject to any regulations which such Receiver may
think fit and such Receiver shall not be liable or responsible in
any way to the Seventh Issuer or the Security Trustee for any loss
or liability arising from any act, default, omission or misconduct
on the part of any such delegate or sub-delegate;
(q) generally to carry out, or cause or authorise to be carried out,
any transaction, scheme or arrangement whatsoever, whether similar
or not to any of the foregoing, in relation to the Seventh Issuer
Charged Property which it may consider expedient as effectually as
if he were solely and absolutely entitled to the Seventh Issuer
Charged Property;
(r) in addition:
(i) to do all other acts and things which it may consider desirable
or necessary for realising any Seventh Issuer Charged Property
or incidental or conducive to any of the rights, powers or
discretions conferred on a Receiver under or by virtue of this
Deed; and
(ii)to exercise in relation to any Seventh Issuer Charged Property
all the powers, authorities and things which it would be
capable of exercising if he were the absolute beneficial owner
of the same,
and may use the name of the Seventh Issuer for any of the above
purposes; and
(s) to pay and discharge out of the profits and income of the relevant
Seventh Issuer Charged Property and the moneys to be made by it in
carrying on the business of the Seventh Issuer the expenses
incurred in and about the carrying on and management of the
business or in the exercise of any of the powers conferred by this
CLAUSE 9.6 or otherwise in respect of such Seventh Issuer Charged
Property and all outgoings which it shall think fit to pay and to
apply the residue of the said profits, income or moneys in the
manner provided by CLAUSE 6 (Payments out of the Seventh Issuer
Accounts upon Enforcement) hereof.
The Security Trustee may pay over to a Receiver any moneys constituting
part of the Seventh Issuer Charged Property to the intent that the same
may be applied for the purposes referred to in CLAUSE 6 (Payments out of
the Seventh Issuer Accounts upon Enforcement) by such Receiver and the
Security Trustee may from time to time determine what funds such Receiver
shall be at liberty to keep in hand with a view to the performance of his
duties as such Receiver.
10. PROTECTION OF THIRD PARTIES
10.1 ENQUIRY
No purchaser from, or other person dealing with, the Security Trustee or
a Receiver shall be concerned to enquire whether any of the powers
exercised or purported to be exercised has arisen or become exercisable,
whether the Seventh Issuer Secured Obligations remain outstanding or have
become payable, whether such Receiver is authorised to act or as to the
propriety or validity of the exercise or purported exercise of any power;
and the title of such a
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purchaser and the position of such a person shall not be impeachable by
reference to any of those matters and the protections contained in
Sections 104 to 107 of the 1925 Act shall apply to any person purchasing
from or dealing with a Receiver or the Security Trustee.
10.2 RECEIPTS
Upon any dealing or transaction under this Deed, the receipt of the
Security Trustee or a Receiver, as the case may be, shall be an absolute
and a conclusive discharge to a purchaser and shall relieve him of any
obligation to see to the application of any moneys paid to or by the
direction of the Security Trustee or such Receiver.
11. PROTECTION OF SECURITY TRUSTEE AND RECEIVER
11.1 LIABILITY
Neither the Security Trustee nor any Receiver shall be liable to the
Seventh Issuer in the absence of breach of the terms of this Deed by
them, or wilful default, fraud, negligence or wilful misconduct on their
part or that of their officers, employees or agents in respect of any
loss or damage which arises out of the exercise or the attempted or
purported exercise of or failure to exercise any of their respective
powers.
11.2 POSSESSION
Without prejudice to the generality of CLAUSE 11.3 (Mortgagee in
Possession), entry into possession of the Seventh Issuer Charged Property
or any part thereof shall not render the Security Trustee or the Receiver
of that company liable to account as mortgagee or security holder in
possession. If and whenever the Security Trustee or the Receiver enters
into possession of the Seventh Issuer Charged Property, it shall be
entitled at any time to go out of such possession.
11.3 MORTGAGEE IN POSSESSION
Neither the Security Trustee nor the Seventh Issuer Secured Creditors
shall, by reason of any assignment or other security made under this
Deed, be or be deemed to be a mortgagee or security holder in possession
nor shall they take any action (other than, in the case of the Seventh
Issuer Secured Creditors, with the Security Trustee's prior written
consent) which would be likely to lead to the Seventh Issuer Secured
Creditors or the Security Trustee becoming a mortgagee or security holder
in possession in respect of any property referred to in this Deed. The
Security Trustee, in its absolute discretion, may at any time, serve a
written notice on the Seventh Issuer Secured Creditors requiring the
Seventh Issuer Secured Creditors from the date such notice is served to
obtain the Security Trustee's prior written consent before taking any
action which would be likely to lead to the Seventh Issuer Secured
Creditors or the Security Trustee becoming a mortgagee or security holder
in possession in respect of any property referred to in this Deed.
12. EXPENSES AND INDEMNITY
12.1 EXPENSES
The Seventh Issuer covenants with and undertakes to the Security Trustee
to reimburse or pay to the Security Trustee or any Receiver of the
Seventh Issuer (on the basis of a full indemnity) the amount of all costs
(including legal costs), charges and expenses (including insurance
premiums) properly incurred or sustained by the Security Trustee or any
Receiver (including,
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for the avoidance of doubt, any such costs, charges and expenses arising
from any act or omission of, or proceedings involving, any third person)
in connection with:
(a) the exercise or the attempted exercise, or the consideration of the
exercise by or on behalf of the Security Trustee or any Receiver of
any of the powers of the Security Trustee or such Receiver, and the
enforcement, preservation or attempted preservation of this Deed
(or any of the charges contained in or granted pursuant to it) or
any of the Seventh Issuer Charged Property or any other action
taken by or on behalf of the Security Trustee or such Receiver with
a view to or in connection with the recovery by the Security
Trustee or such Receiver of the Seventh Issuer Secured Obligations
from the Seventh Issuer or any other person; or
(b) the carrying out of any other act or matter which the Security
Trustee or any Receiver may reasonably consider to be necessary for
the preservation, improvement or benefit of the Seventh Issuer
Charged Property.
12.2 INDEMNITY
The Seventh Issuer agrees to indemnify the Security Trustee and any
Receiver, on an after-Tax basis, from and against all losses, actions,
claims, costs (including legal costs on a full indemnity basis), expenses
(including insurance premiums), demands and liabilities whether in
contract, tort, delict or otherwise now or hereafter properly sustained
or incurred by the Security Trustee or such Receiver and their respective
officers and employees or by any person for whose liability, act or
omission the Security Trustee or such Receiver may be answerable, in
connection with anything done or omitted to be done under or pursuant to
this Deed or any other Transaction Document to which such entity is a
party, or in the exercise or purported exercise of the powers herein
contained, or occasioned by any breach by the Seventh Issuer of any of
its covenants or other obligations to the Security Trustee, or in
consequence of any payment in respect of the Seventh Issuer Secured
Obligations (whether made by the Seventh Issuer or a third person) being
declared void or impeached for any reason whatsoever save where the same
arises as the result of the fraud, negligence or wilful default of the
Security Trustee or such Receiver or their respective officers or
employees or breach by the Security Trustee or such Receiver or their
respective officers or employees of the terms of this Deed.
12.3 TAXES
All sums payable by the Seventh Issuer under this Deed are deemed to be
exclusive of any amount in respect of VAT. If, pursuant to any provision
of this Deed, the Security Trustee or any Receiver of the Seventh Issuer
makes any taxable or deemed taxable supply to the Seventh Issuer, then
the Seventh Issuer shall pay to the Security Trustee or such Receiver (as
the case may be) (in addition to the consideration for the supply) an
amount equal to the VAT charged in respect of such taxable or deemed
taxable supply against production of a valid VAT invoice.
If the Security Trustee or any Receiver shall make any payment for a
taxable or deemed taxable supply to it pursuant to or in connection with
this Deed and any such payment shall bear VAT which is Irrecoverable VAT
the Seventh Issuer shall indemnify the Security Trustee or such Receiver
(as the case may be) on demand for an amount equal to such Irrecoverable
VAT so far as it has not been taken into account in computing the amount
of any payment made by the Seventh Issuer to the Security Trustee or such
Receiver under any other indemnity contained in this Deed.
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12.4 INTEREST
All sums payable by the Seventh Issuer under CLAUSES 24.3 (Disputes),
24.4 (Expenses) and 24.5 (Indemnity) shall be payable on demand and:
(a) in the case of payments actually made by the Security Trustee prior
to the demand, shall carry interest at the rate per annum which is
1 per cent. per annum higher than the base rate of the Agent Bank
for the time being from the first Business Day following the date
of the same being demanded to the date of actual payment (provided
that such demand shall be made on a Business Day, otherwise
interest shall be payable from the Third Business Day following the
date of the demand to the date of actual payment); and
(b) in all other cases, shall carry interest at such rate from the date
14 days after the date of the same being demanded or (where the
demand specifies that payment by the Security Trustee will be made
on an earlier date provided such earlier date is a business day)
from such earlier date (not being earlier than the Business Day
following the date of such demand) to the date of actual payment.
Any amounts payable pursuant to CLAUSES 24.1 (Remuneration) and 24.2
(Additional Remuneration) shall carry interest at the aforesaid rate from
the due date thereof to the date of actual payment.
12.5 STAMP DUTIES
The Seventh Issuer shall, to the extent permitted by applicable United
Kingdom law, pay all stamp duties and other duties or Taxes of a similar
nature, including for the avoidance of doubt any duty levied under the
Stamp Act 1891 as amended and supplemented, (if any) payable on or
arising out of or in consequence of:
(a) the creation of the security constituted by or pursuant to this
Deed; and
(b) the execution and delivery of this Deed and documents executed
pursuant hereto and the other Seventh Issuer Transaction Documents
(except where such obligation to pay such stamp duties and other
duties on Taxes of a similar nature is expressed to be the
obligation of any other party to the Seventh Issuer Transaction
Documents).
13. PROTECTION OF SECURITY
The Seventh Issuer further covenants with and undertakes to the Security
Trustee from time to time (and, for the purposes mentioned in paragraph
(a) below, notwithstanding that a Seventh Issuer Note Acceleration Notice
may not have been served) upon demand to execute, at the Seventh Issuer's
own cost, any document or do any act or thing (other than any amendment
hereto) which the Security Trustee may specify:
(a) with a view to registering or perfecting any charge or other
security created or intended to be created by or pursuant to this
Deed (including the perfecting of the conversion of any floating
charge to a fixed charge pursuant to CLAUSE 14.1 (Notice) or 14.2
(Automatic Crystallisation)) subject to having first obtained all
necessary consents (if any); or
(b) with a view to facilitating the exercise or the proposed exercise
of any of their powers or the realisation of any of the Seventh
Issuer Charged Property; or
25
(c) with a view to protecting the encumbrances created by or pursuant
to this Deed,
provided that the Seventh Issuer shall not be obliged to execute any
further documentation or take any other action or steps to the extent
that it would breach a restriction in any such agreement to which it is
party relating to assignment, transferring, charging or sharing of
possession/rights of such benefit.
14. CRYSTALLISATION
14.1 NOTICE
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charge created by this Deed or any other
right the Security Trustee may have, the Security Trustee may, at any
time, if:
(a) a Potential Seventh Issuer Note Event of Default is subsisting and
has not been waived; or
(b) it believes that the Seventh Issuer Charged Property or any part
thereof is in danger of being seized or sold under any form of
distress, execution or diligence levied or threatened or is
otherwise in jeopardy or imperilled; or
(c) any circumstance shall occur which, in the reasonable opinion of
the Security Trustee, prejudices, imperils, threatens or is likely
to do any of the foregoing in respect of the security created by
this Deed or the Seventh Issuer takes or threatens to take any
action that would be prejudicial to, or would be inconsistent with,
the security created hereby,
by notice in writing to the Seventh Issuer declare that the floating
charge hereby created shall be converted into a first specific fixed
charge as to all of the undertakings, property and assets or such of them
as may be specified in the notice, and by way of further assurance, the
Seventh Issuer, at its own expense, shall execute all documents in such
form as the Security Trustee shall require and shall deliver to the
Security Trustee all conveyances, deeds, certificates and documents which
may be necessary to perfect or, in respect of Scottish assets, to create
and perfect, such first specific fixed charge.
14.2 AUTOMATIC CRYSTALLISATION
Subject as set out below, in addition and without prejudice to any other
event resulting in a crystallisation of the floating charge created by
this Deed, the floating charge contained herein shall automatically be
converted into a fixed charge over all property, assets or undertaking of
the Seventh Issuer subject to the floating charge, if and when:
(a) a Seventh Issuer Note Event of Default occurs; or
(b) the Seventh Issuer ceases to carry on all or a substantial part of
its business or ceases to be a going concern or thereafter to do
any of the foregoing; or
(c) the Seventh Issuer stops making payments to its creditors or gives
notice to creditors that it intends to stop payment; or
(d) the holder of any other Encumbrance in relation to the Seventh
Issuer, whether ranking in priority to or pari passu with or after
the charges contained in this Deed, appoints a Receiver; or
26
(e) any floating charge granted by the Seventh Issuer to any other
person (whether permitted by the Seventh Issuer Transaction
Documents or not) crystallises for any reason whatsoever.
The floating charge created by CLAUSE 3.4 (Floating Charge) of this Deed
may not be converted into a fixed charge solely as a result of the
obtaining of a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency Act 2000 except with leave of the court.
14.3 FAILURE OF PETITION FOR ADMINISTRATION OR WINDING-UP
If any petition for the administration or winding-up of the Seventh
Issuer or filing of documents with the court for the administration or
service of a notice of intention to appoint an administrator in relation
to the Seventh Issuer is dismissed or withdrawn or a resolution for
winding-up of the Seventh Issuer is not passed by the necessary majority,
then without prejudice to any rights exercisable otherwise than in
consequence of the presentation of such petition or the filing of
documents or the service of a notice or resolution and subject to
anything done in the meantime in pursuance of the powers given by this
Deed and subject to the provisions contained in this Deed as to costs
charges and expenses incurred and payments made, possession of the
Seventh Issuer Charged Property will be restored to the Seventh Issuer,
and the Seventh Issuer and all persons concerned will be remitted to
their original rights provided that the Security Trustee is satisfied
that its security position at that time is not materially different to
that as at the date of this Deed.
15. POWER OF ATTORNEY, ETC.
15.1 EXECUTION OF POWER OF ATTORNEY
Immediately upon execution of this Deed, the Seventh Issuer shall execute
and deliver to the Security Trustee a power of attorney in or
substantially in the form set out in Schedule 1. For the avoidance of
doubt, the Security Trustee confirms that it may only exercise the powers
conferred under such power of attorney in the circumstances set out in
paragraph 1 of Schedule 1.
15.2 SEVENTH ISSUER CHARGED PROPERTY ON TRUST
To the extent that it is permitted to do so under the Transaction
Documents, for the purpose of giving effect to this Deed, the Seventh
Issuer hereby declares that, after service of a Seventh Issuer Note
Acceleration Notice, it will hold all of the Seventh Issuer Charged
Property (subject to the right of redemption) upon trust to convey,
assign or otherwise deal with such Seventh Issuer Charged Property in
such manner and to such person as the Security Trustee shall direct, and
declares that it shall be lawful for the Security Trustee to appoint a
new trustee or trustees of the Seventh Issuer Charged Property in place
of the Seventh Issuer.
16. OTHER SECURITY, ETC.
16.1 NO MERGER
The Security Interests contained in or created pursuant to this Deed are
in addition to, and shall neither be merged in, nor in any way exclude or
prejudice any other Encumbrance, right of recourse, set-off or other
right whatsoever which the Security Trustee or any Seventh Issuer Secured
Creditor may now or at any time hereafter hold or have (or would apart
from this Deed or any charge contained or created pursuant to this Deed
hold or have) as regards the Seventh Issuer or any other person in
respect of the Seventh Issuer Secured Obligations,
27
and neither the Security Trustee (subject to the provisions of CLAUSE
20.4 (Mandatory Enforcement) nor any Seventh Issuer Secured Creditor
shall be under any obligation to take any steps to call in or to enforce
any security for the Seventh Issuer Secured Obligations, and shall not be
liable to the Seventh Issuer for any loss arising from any omission on
the part of the Security Trustee or any Seventh Issuer Secured Creditor
to take any such steps or for the manner in which the Security Trustee or
any Seventh Issuer Secured Creditor shall enforce or refrain from
enforcing any such security.
16.2 CONSOLIDATION
Section 93 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed.
16.3 RULING OFF
If the Security Trustee receives notice of any Encumbrance affecting the
whole or any part of the Seventh Issuer Charged Property or any Security
Interests created under this Deed in contravention of the provisions
hereof:
(a) the Security Trustee may open a new account in respect of the
Seventh Issuer and, if it does not, it shall nevertheless be deemed
to have done so at the time it received such notice; and
(b) all payments made by the Seventh Issuer to the Security Trustee
after the Security Trustee receives such notice shall be credited
or deemed to have been credited to the new account, and in no
circumstances whatsoever shall operate to reduce the Seventh Issuer
Secured Obligations as at the time the Security Trustee received
such notice.
16.4 CHANGE OF NAME, ETC.
This Deed shall remain valid and enforceable notwithstanding any change
in the name, composition or constitution of the Security Trustee or the
Seventh Issuer or any amalgamation or consolidation by the Security
Trustee or the Seventh Issuer with any other corporation (whether, in the
case of the Seventh Issuer, permitted by the Seventh Issuer Transaction
Documents or not).
17. AVOIDANCE OF PAYMENTS
17.1 NO RELEASE
No assurance, security or payment which may be avoided or adjusted under
the law, including under any enactment relating to bankruptcy or
insolvency and no release, settlement or discharge given or made by the
Security Trustee or any Seventh Issuer Secured Creditor on the faith of
any such assurance, security or payment, shall prejudice or affect the
right of the Security Trustee or any Seventh Issuer Secured Creditor to
recover the Seventh Issuer Secured Obligations from the Seventh Issuer
(including any monies which it may be compelled to pay or refund under
the provisions of the Insolvency Act 1986 and any costs payable by it
pursuant to or otherwise incurred in connection therewith) or to enforce
the Security Interests created under or pursuant to this Deed to the full
extent of the Seventh Issuer Secured Obligations.
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17.2 RETENTION OF CHARGES
If the Security Trustee shall have reasonable grounds for believing that
the Seventh Issuer may be insolvent or deemed to be insolvent pursuant to
the provisions of the Insolvency Act 1986 (and production of a solvency
certificate of a duly authorised officer of the Seventh Issuer shall be
prima facie evidence of the solvency of the Seventh Issuer) at the date
of any payment made by the Seventh Issuer to the Security Trustee and
that as a result, such payment may be capable of being avoided or clawed
back, the Security Trustee shall be at liberty to retain the Security
Interests contained in or created pursuant to this Deed until the expiry
of a period of one month plus such statutory period within which any
assurance, security, guarantee or payment can be avoided or invalidated
after the payment and discharge in full of all Seventh Issuer Secured
Obligations notwithstanding any release, settlement, discharge or
arrangement which may be given or made by the Security Trustee on, or as
a consequence of, such payment or discharge of liability provided that,
if at any time within such period, a petition shall be presented to a
competent court for an order for the winding up or the making of an
administration order or documents shall be filed with the court for the
appointment of an administrator or formal notice shall be given of an
intention to appoint an administrator in respect of the Seventh Issuer or
the Seventh Issuer shall commence to be wound up or to go into
administration or any analogous proceedings shall be commenced by or
against the Seventh Issuer, as the case may be, the Security Trustee
shall be at liberty to continue to retain such security for such further
period as the Security Trustee may determine and such security shall be
deemed to continue to have been held as security for the payment and
discharge to the Security Trustee of all Seventh Issuer Secured
Obligations.
18. SET OFF
The Security Trustee may at any time following the service of a Seventh
Issuer Note Acceleration Notice (without notice and notwithstanding any
settlement of account or other matter whatsoever) combine or consolidate
all or any existing accounts of the Seventh Issuer whether in its own
name or jointly with others and held by it or any Seventh Issuer Secured
Creditor and may set off or transfer all or any part of any credit
balance or any sum standing to the credit of any such account (whether or
not the same is due to the Seventh Issuer from the Security Trustee or
relevant Seventh Issuer Secured Creditor and whether or not the credit
balance and the account in debit or the Seventh Issuer Secured
Obligations are expressed in the same currency in which case the Security
Trustee is hereby authorised to effect any necessary conversions at its
prevailing rates of exchange) in or towards satisfaction of any of the
Seventh Issuer Secured Obligations and may in its absolute discretion
estimate the amount of any liability of the Seventh Issuer which is
contingent or unascertained and thereafter set off such estimated amount
and no amount shall be payable by the Security Trustee to the Seventh
Issuer unless and until all Seventh Issuer Secured Obligations have been
ascertained and fully repaid or discharged.
19. EXECUTION OF DOCUMENTS
Any document required to be executed as a deed by the Security Trustee
under or in connection with this Deed shall be validly executed if
executed as a deed by a duly authorised attorney of the Security Trustee.
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20. EXERCISE OF CERTAIN RIGHTS
20.1 NO ENFORCEMENT BY SEVENTH ISSUER SECURED CREDITORS
Each of the Seventh Issuer Secured Creditors (other than the Noteholders,
the Note Trustee acting on behalf of the Seventh Issuer Noteholders and
the Security Trustee) hereby agrees with the Seventh Issuer and the
Security Trustee that:
(a) only the Security Trustee may enforce the security created in
favour of the Security Trustee by this Deed in accordance with the
provisions hereof; and
(b) subject to CLAUSE 3.6 (Acknowledgement and Undertaking), it shall
not take any steps for the purpose of recovering any of the Seventh
Issuer Secured Obligations (including, without limitation, by
exercising any rights of set off or enforcing any rights arising
out of the Seventh Issuer Transaction Documents against the Seventh
Issuer or procuring the winding up, administration (including, for
the avoidance of doubt, the filing of documents with the court or
the service of a notice of intention to appoint an administrator)
or liquidation of the Seventh Issuer in respect of any of its
liabilities whatsoever),
unless a Seventh Issuer Note Acceleration Notice shall have been served
or the Note Trustee, having become bound to serve a Seventh Issuer Note
Acceleration Notice, and/or having become bound to take any steps or
proceedings to enforce the said security pursuant to this Deed, fails to
do so within 30 days of becoming so bound and that failure is continuing
(in which case each of such Seventh Issuer Secured Creditors shall be
entitled to take any such steps and proceedings as it shall deem
necessary other than the presentation of a petition for the winding up
of, or for an administration order in respect of, the Seventh Issuer or
the filing of documents with the court or the service of a notice of
intention to appoint an administrator in relation to the Seventh Issuer).
20.2 KNOWLEDGE OF SECURITY TRUSTEE OF A SEVENTH ISSUER NOTE EVENT OF DEFAULT
The Security Trustee will not be deemed to have knowledge of the
occurrence of a Seventh Issuer Note Event of Default unless the Security
Trustee has received written notice from a Seventh Issuer Secured
Creditor stating that a Seventh Issuer Note Event of Default has occurred
and describing that Seventh Issuer Note Event of Default.
20.3 DISCRETIONARY ENFORCEMENT
Subject to the provisions of this Deed, the Security Trustee may at any
time, at its discretion and without notice, take such proceedings and/or
other action as it may think fit against, or in relation to, the Seventh
Issuer or any other person to enforce their respective obligations under
any of the Seventh Issuer Transaction Documents. Subject to the
provisions of this Deed, at any time after the security created by this
Deed has become enforceable, the Security Trustee may, at its discretion
and without notice, take such steps as it may think fit to enforce such
security.
20.4 MANDATORY ENFORCEMENT
The Security Trustee shall not be bound to take any steps or to institute
any proceedings or to take any other action under or in connection with
any of the Seventh Issuer Transaction Documents (including, without
limitation, enforcing the security constituted by or pursuant to this
Deed) unless (subject to the provisions of CONDITION 10 of the Seventh
Issuer Notes) the Security Trustee:
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(a) shall have been directed or requested to do so by an Extraordinary
Resolution of the Class A Noteholders, the Class B Noteholders or
the Class C Noteholders or in writing by the holders of at least 25
per cent. in aggregate Principal Amount Outstanding of the Class A
Seventh Issuer Notes, the Class B Seventh Issuer Notes or the Class
C Seventh Issuer Notes then outstanding or by any other Seventh
Issuer Secured Creditor PROVIDED THAT:
(i) the Security Trustee shall not, and shall not be bound to,
act at the direction or request of the Class B Noteholders
as aforesaid unless either so to do would not, in the sole
opinion of the Security Trustee, be materially prejudicial
to the interests of the Class A Noteholders or such action
is sanctioned by an Extraordinary Resolution of the Class A
Noteholders;
(ii) the Security Trustee shall not, and shall not be bound to,
act at the direction or request of the Class C Noteholders
as aforesaid unless either so to do would not, in the sole
opinion of the Security Trustee, be materially prejudicial
to the interests of the Class A Noteholders and/or the Class
B Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders and/or
the Class B Noteholders, as the case may be;
(iii) the Security Trustee shall not, and shall not be bound to,
act at the direction or request of any other Seventh Issuer
Secured Creditor as aforesaid unless so to do would not, in
the sole opinion of the Security Trustee, be materially
prejudicial to the interests of the Class A Noteholders and
the Class B Noteholders and the Class C Noteholders or such
action is sanctioned by Extraordinary Resolutions of the
Class A Noteholders and the Class B Noteholders and the
Class C Noteholders and each of the Seventh Issuer Secured
Creditors who ranks higher than the relevant Seventh Issuer
Secured Creditor in the order or priority of payments in
CLAUSE 6 (Payments out of the Seventh Issuer Accounts upon
Enforcement) consents to such action; and
(b) shall have been indemnified and/or secured to its satisfaction
against all liabilities, actions, proceedings, claims and demands
to which it may thereby render itself liable and all costs,
charges, damages and expenses which it may incur by so doing and
the terms of such indemnity may include the provision of a fighting
fund, non-recourse loan or other similar arrangement.
20.5 DISPOSAL OF SEVENTH ISSUER CHARGED PROPERTY
Notwithstanding CLAUSE 8 (The Security Trustee's Powers), if the Seventh
Issuer Security has become enforceable otherwise than by reason of a
default in payment of any amount due on the Class A Notes (or, once the
Class A Notes have been redeemed in full, the Class B Notes or, once the
Class A Notes and the Class B Notes have been redeemed in full, the Class
C Notes), the Security Trustee will not be entitled to dispose of any of
the Seventh Issuer Charged Property unless either a sufficient amount
would be realised to allow discharge in full of all amounts owing to the
Class A Noteholders and, once all of the Class A Noteholders have been
repaid, the Class B Noteholders and, once all the Class A Noteholders and
the Class B Noteholders, the Class C Noteholders or the Security Trustee
is of the sole opinion, which shall be binding on the Seventh Issuer
Secured Creditors, reached after considering at any time and from time to
time the advice of any financial adviser (or such other professional
advisers reasonably selected by the Security Trustee for the purpose of
giving such advice), that the cash flow prospectively receivable by the
Seventh Issuer will not (or that there is a significant risk that it will
not) be sufficient, having regard to any other relevant actual,
contingent or prospective liabilities of the Seventh Issuer, to discharge
in full in due course all
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amounts owing to the Class A Noteholders (or once all of the Class A
Noteholders have been repaid, the Class B Noteholders, or once all the
Class A Noteholders and the Class B Noteholders have been repaid, the
Class C Noteholders). The fees and expenses of the aforementioned
financial adviser or other professional adviser selected by the Security
Trustee shall be paid by the Seventh Issuer.
21. COVENANTS AND WARRANTIES
21.1 NOTICE OF ASSIGNMENT
Immediately upon the execution of this Deed, the Seventh Issuer shall
deliver one or more notices of assignment substantially in the form set
out in Schedule 2 to each of the persons named in such notices and shall
use all reasonable endeavours to procure the delivery to the Security
Trustee on the date hereof of receipts from the addressees of such
notices substantially in the form attached to the notice.
21.2 WARRANTY
The Seventh Issuer warrants to the Security Trustee that it has taken all
necessary steps to enable it to charge or assign as security the Seventh
Issuer Charged Property in accordance with CLAUSE 3 (Security and
Declaration of Trust), and that it has taken no action or steps to
prejudice its right, title and interest in and to the Seventh Issuer
Charged Property.
21.3 NEGATIVE COVENANTS
So long as any of the Seventh Issuer Secured Obligations remain
outstanding, the Seventh Issuer shall not, save to the extent permitted
by or provided for in the Transaction Documents or with the prior written
consent of the Security Trustee:
(a) create or permit to subsist any mortgage, standard security,
assignation, pledge, lien, charge or other security interest
whatsoever (unless arising by operation of law) upon the whole or
any part of its assets (including any uncalled capital) or its
undertaking, present or future;
(b) (i) carry on any business other than as described in the
Prospectus dated 17th March, 2005 relating to the issue of
the Seventh Issuer Notes and the related activities described
therein; or
(ii) have any subsidiaries or any subsidiary undertakings (as
defined in the Companies Act 1985) or any employees or
premises;
(c) transfer, convey, sell, lend, part with or otherwise dispose of, or
deal with, or grant any option or present or future right to
acquire any of its assets or undertaking or any interest, estate,
right, title or benefit therein or thereto or agree or attempts or
purport to do so;
(d) pay any dividend or make any other distribution to its shareholder
or issue any further shares;
(e) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness or
of any obligation of any person;
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(f) consolidate or merge with any other person or convey or transfer
its properties or assets substantially as an entirety to any other
person;
(g) permit any of the Seventh Issuer Transaction Documents to which it
is a party to become invalid or ineffective, or the priority of the
Security Interests created thereby to be reduced, or consent to any
variation of, or exercise any powers of consent or waiver pursuant
to the terms of any of the Seventh Issuer Transaction Documents to
which it is a party, or permit any party to any of the Transaction
Documents to which it is a party or any other person whose
obligations form part of the Seventh Issuer Charged Property to be
released from its respective obligations;
(h) have an interest in any bank account other than the Seventh Issuer
Accounts, unless such account or interest therein is charged to the
Security Trustee on terms acceptable to it;
(i) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X of
the Income and Corporation Taxes Act 1988 except for full payment
at the current applicable rate of corporation tax applied to the
surrendered amount and payable at the date when corporation tax is
due to be paid by the claimant or would be due in the absence of
the surrender;
(j) allow or permit the group election in force between the Seventh
Issuer and Funding 1 under Section 247 of the Income and
Corporation Taxes Act 1988 to cease, unless required to do so by
law;
(k) do any act or thing the effect of which would be to make the
Seventh Issuer resident in any jurisdiction other than the United
Kingdom;
(l) do any act or thing the effect of which would be to cause the
Seventh Issuer to have an establishment in a member state other
than England;
(m) permit any person other than itself and the Security Trustee to
have any equitable or beneficial interest in any of its assets or
undertakings or any interest, estate, right, title or benefit
therein;
(n) purchase or otherwise acquire any Note or Notes (including the
Seventh Issuer Notes); or
(o) engage in any activities in the United States (directly or through
agents) or derive any income from United States sources as
determined under United States income tax principles or hold any
property if doing so would cause it to be engaged or deemed to be
engaged in a trade or business within the United States as
determined under United States tax principles.
21.4 POSITIVE COVENANTS
The Seventh Issuer covenants and undertakes with the Security Trustee for
the benefit of the Seventh Issuer Secured Creditors as follows:
(a) at all times to carry on and conduct its affairs in a proper and
efficient manner and in accordance with its constitutive documents
and all laws and regulations applicable to it;
33
(b) give to the Security Trustee within a reasonable time after request
such information and evidence as it shall reasonably require and in
such form as it shall reasonably require, including without
prejudice to the generality of the foregoing the procurement by the
Seventh Issuer of all such certificates called for by the Security
Trustee pursuant to this Deed or any other Transaction Document for
the purpose of the discharge or exercise of the duties, trusts,
powers, authorities and discretions vested in it under these
presents or any other Transaction Document to which the Security
Trustee is a party or by operation of law;
(c) to cause to be prepared and certified by its auditors in respect of
each Financial Year accounts in such form as will comply with
relevant legal and accounting requirements applicable to it for the
time being;
(d) at all times to keep or procure the keeping of proper books of
account and records and allow the Security Trustee and any person
or persons appointed by the Security Trustee to whom the Seventh
Issuer shall have no reasonable objection free access to such books
of account and records at all times during normal business hours
upon reasonable notice in writing provided that such inspection
shall only be for the purposes of carrying out its duties under
this Deed and any information so obtained shall only be used and
passed on to any other person for the purpose of the Security
Trustee carrying out its duties under this Deed;
(e) to send to the Security Trustee a copy of every balance sheet,
profit and loss account, source and application of funds statement
(if any), report, or other notice, statement, circular or document
issued or given to any holder of securities (including Noteholders
and shareholders in their capacity as such) or creditors of the
Seventh Issuer as soon as reasonably practicable after issue of the
same;
(f) to give notice in writing to the Security Trustee of the occurrence
of any Seventh Issuer Note Event of Default, Potential Seventh
Issuer Note Event of Default and/or service of a Seventh Issuer
Note Acceleration Notice (such notice to be effective by the
delivery of a copy of the Seventh Issuer Note Acceleration Notice
to Security Trustee) immediately upon becoming aware thereof and
without waiting for the Security Trustee to take any further
action;
(g) give to the Security Trustee (i) within fourteen days after demand
by the Security Trustee therefor and (ii) (without the necessity
for any such demand) promptly after the publication of its audited
accounts in respect of each Financial Year and in any event not
later than the date required by statute to file or publish
(whichever is earlier) such audited accounts after the end of each
such Financial Year a certificate signed by two directors of the
Seventh Issuer to the effect that as at a date not more than seven
days before delivering such certificate (the CERTIFICATION DATE)
there did not exist and had not existed since the certification
date of the previous certificate (or in the case of the first such
certificate the date hereof) any Seventh Issuer Note Event of
Default (or if such then exists or existed, specifying the same)
and that during the period from and including the certification
date of the last such certificate (or in the case of the first such
certificate the date hereof) to and including the certification
date of such certificate the Seventh Issuer has complied, to the
best of such directors' knowledge and belief, with all its
obligations contained in this Deed and each of the other Seventh
Issuer Transaction Documents to which it is a party or (if such is
not the case) specifying the respects in which it has not so
complied;
(h) at all times to execute all such further documents and do all such
further acts and things as may in the reasonable opinion of the
Security Trustee be necessary at any
34
time or times to give effect to the terms and conditions of this
Deed and the other Seventh Issuer Transaction Documents;
(i) at all times to comply with the obligations and provisions binding
upon it under and pursuant to this Deed and the other Seventh
Issuer Transaction Documents;
(j) duly and promptly to pay and discharge all Taxes imposed upon it or
its assets unless such Taxes are, in the sole opinion of the
Security Trustee, being contested in good faith by the Seventh
Issuer;
(k) so far as permitted by law to enter into and maintain in full force
and effect a group income election under Section 247 of the Income
and Corporation Taxes Act 1988 in relation to any such payments as
are referred to in Section 247(4) of that Act and which are made
under the Seventh Issuer Intercompany Loan Agreement by Funding 1
to the Seventh Issuer and ensure that no steps will be taken
(whether by act, omission or otherwise) which would reasonably be
expected to lead to the revocation or invalidation of the
aforementioned election; and immediately to notify the Security
Trustee if it becomes aware that the aforementioned election ceases
to be in full force and effect or if circumstances arise, of which
it is aware, which may result in that election ceasing to be in
full force and effect; and
(l) at all times maintain its "centre of main interests" as defined in
the EU Insolvency Regulation (EC) No. 1346/2000 of 29th May 2000
(the REGULATION) in England.
21.5 FORMS 395
The Seventh Issuer shall make a filing or shall procure that a filing is
made with the Registrar of Companies of a duly completed Form 395
together with an executed original of this Deed within the applicable
time limit.
22. SUPPLEMENTS TO THE TRUSTEE ACTS
22.1 POWERS OF SECURITY TRUSTEE
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Security Trustee in relation to the trusts constituted by this Deed.
Where there are any inconsistencies between the Trustee Act 1925, the
Trustee Act 2000 and the provisions of this Deed, the provisions of this
Deed shall, to the extent allowed by law, prevail and, in the case of any
such inconsistency with the Trustee Act 2000, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that Act.
By way of supplement it is expressly declared as follows:
(a) the Security Trustee may in relation to this Deed or any of the
other Seventh Issuer Transaction Documents act on the opinion or
advice of, or a certificate or any information obtained from, any
lawyer, banker, valuer, surveyor, securities company, broker,
auctioneer, accountant or other expert or adviser in the United
Kingdom or elsewhere (including, without limitation, any
certificate or confirmation from the Rating Agencies), whether
obtained by the Security Trustee or any Receiver and shall not be
responsible for any loss occasioned by so acting;
(b) any such opinion, advice, certificate or information may be sent or
obtained by letter, telegram, telex, facsimile reproduction or in
any other form and the Security Trustee shall not be liable for
acting in good faith on any opinion, advice, certificate or
35
information purporting to be so conveyed although the same shall
contain some error or shall not be authentic provided that such
error or lack of authenticity is not manifest;
(c) the Security Trustee shall (save as expressly otherwise provided in
this Deed or any of the other Seventh Issuer Transaction Documents)
as regards all rights, powers, authorities and discretions vested
in it by this Deed or any of the other Transaction Documents, or by
operation of law, have absolute and uncontrolled discretion as to,
and save as otherwise provided in this Deed shall not be liable for
any loss, liability, costs, expenses or inconvenience arising as a
result of, the exercise or non-exercise thereof;
(d) the Security Trustee shall be at liberty to place this Deed and all
deeds and other documents relating to this Deed with any bank or
banking company, or lawyer or firm of lawyers believed by it to be
of good repute, in any part of the world, and the Security Trustee
shall not be responsible for or be required to insure against any
loss incurred in connection with any such deposit and the Seventh
Issuer shall pay all sums required to be paid on account of or in
respect of any such deposit;
(e) the Security Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay, on such terms as it
in its absolute discretion deems fit, an agent to transact or
conduct, or concur in transacting or conducting, any business and
to do or concur in doing all acts required to be done by the
Security Trustee (including the receipt and payment of money). The
Security Trustee (except where such agent is an affiliate or
associated company of, or otherwise connected with, the Security
Trustee) shall not be responsible for any misconduct or default on
the part of any person appointed by it in good faith hereunder or
be bound to supervise the proceedings or acts of any such persons;
(f) where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law)
be converted at such rate or rates in accordance with such method
and as at such date for the determination of such rate of exchange,
as may be specified by the Security Trustee in its absolute
discretion but having regard to current rates of exchange if
available and the Security Trustee shall not be liable for any loss
occasioned by the said conversion under this paragraph (f);
(g) subject to CLAUSE 23.6 (Consent of Security Trustee), any consent
given by the Security Trustee for the purposes of this Deed or any
of the other Transaction Documents may be given on such terms and
subject to such conditions (if any) as the Security Trustee in its
absolute discretion thinks fit and, notwithstanding anything to the
contrary contained in this Deed or any of the other Seventh Issuer
Transaction Documents, may be given retrospectively;
(h) the Security Trustee shall be entitled to rely (without
investigation or further inquiry) upon a certificate, reasonably
believed by it to be genuine, of the Seventh Issuer or any other
person in respect of every matter and circumstance for which a
certificate is expressly provided for under this Deed or the other
Seventh Issuer Transaction Documents and to call for and rely upon
a certificate of the Seventh Issuer or any other person reasonably
believed by it to be genuine as to any other fact or matter prima
facie within the knowledge of the Seventh Issuer or such person as
sufficient evidence thereof and the Security Trustee shall not be
bound in any such case to call for further evidence or be
responsible for any loss, liability, costs, damages, expenses or
inconvenience that may be caused by it failing to do so;
36
(i) the Security Trustee shall be entitled to rely (without
investigation or further inquiry) upon instructions or directions
given to it by the Note Trustee as being given on behalf of the
relevant class of Seventh Issuer Noteholders and the Security
Trustee shall not be bound in any such case to inquire as to the
compliance with the Seventh Issuer Trust Deed or be responsible for
any loss, liability, costs, damages, expenses or inconvenience that
may be caused by it failing to do so;
(j) the Security Trustee shall not be responsible for acting upon any
resolution purporting to have been passed at any meeting of the
Class A Noteholders or the Class B Noteholders or the Class C
Noteholders in respect whereof minutes have been made and
purporting to have been signed by the chairman thereof, even though
it may subsequently be found that there was some defect in the
constitution of the meeting or the passing of the resolution or
that for any reason the resolution was not valid or binding upon
the Class A Noteholders or the Class B Noteholders or the Class C
Noteholders;
(k) the Security Trustee may call for and shall be at liberty to accept
and place full reliance on as sufficient evidence of the facts
stated therein a certificate or letter of confirmation certified as
true and accurate and signed on behalf of DTC, Euroclear,
Clearstream, Luxembourg or any depository or common depository for
them or such person as the Security Trustee considers appropriate,
or any form of record made by any of them to the effect that any
particular time or through any particular period any particular
person is, was or will be shown in its records as entitled to a
particular number of Seventh Issuer Notes;
(l) the Security Trustee shall, in connection with the exercise by it
of any of its trusts, duties, rights, powers, authorities and
discretions under this Deed and the other Seventh Issuer
Transaction Documents:
(i) where it is required to have regard to the interests of the
Seventh Issuer Noteholders of any class, it shall have regard
to the interests of such Seventh Issuer Noteholders as a
class and, in particular but without prejudice to the
generality of the foregoing, shall not have regard to, or be
in any way liable for, the consequences of any exercise
thereof for individual Seventh Issuer Noteholders resulting
from their being for any purpose domiciled or resident in, or
otherwise connected with, or subject to the jurisdiction of,
any particular territory or any political sub-division
thereof and the Security Trustee shall not be entitled to
require, nor shall any Seventh Issuer Noteholder be entitled
to claim, from the Seventh Issuer, the Security Trustee or
any other person any indemnification or payment in respect of
any tax consequence of any such exercise upon individual
Seventh Issuer Noteholders; and
(ii) be entitled to assume that such exercise will not be
materially prejudicial to the interests of the Class A
Noteholders if each of the Rating Agencies has confirmed that
the then current rating by it of the Class A Notes would not
be adversely affected by such exercise, that such exercise
will not be materially prejudicial to the interests of the
Class B Noteholders if each of the Rating Agencies has
confirmed that the then current rating by it of the Class B
Notes would not be adversely affected by such exercise and
that such exercise will not be materially prejudicial to the
interests of the Class C Noteholder if each of the Rating
Agencies has confirmed that the then current rating by it of
the Class C Notes will not be adversely affected by such
exercise;
37
(m) the Security Trustee shall have no responsibility for the
maintenance of any rating of the Seventh Issuer Notes by the Rating
Agencies or any other person;
(n) the Security Trustee shall not be liable for any error of judgment
made in good faith by any officer or employee of the Security
Trustee assigned by the Security Trustee to administer its
corporate trust matters unless it shall be proved that the Security
Trustee was negligent in ascertaining the pertinent facts;
(o) no provision of this Deed or any other Document shall require the
Security Trustee to do anything which may be illegal or contrary to
applicable law or regulation or expend or risk its own funds or
otherwise incur any financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers or
otherwise in connection with this Deed or any other Seventh Issuer
Transaction Document (including, without limitation, forming any
opinion or employing any legal, financial or other adviser), if it
shall believe that repayment of such funds or adequate indemnity
against such risk or liability is not assured to it;
(p) the Security Trustee shall not (unless and to the extent ordered to
do so by a court of competent jurisdiction) be required to disclose
to any Seventh Issuer Secured Creditor any information made
available to the Security Trustee by the Seventh Issuer in
connection with the trusts of this Deed or the Seventh Issuer
Transaction Documents and no Seventh Issuer Secured Creditor shall
be entitled to take any action to obtain from the Security Trustee
any such information; and
(q) the Security Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets of the
trust as the Security Trustee may determine, including for the
purpose of depositing with a custodian this Deed or any documents
relating to the trusts created hereunder. The Security Trustee
shall not be responsible for any misconduct or default on the part
of any person appointed by it in good faith hereunder or be bound
to supervise the proceedings or acts of any such persons.
22.2 REPRESENTATIONS AND WARRANTIES, ETC.
The Security Trustee shall not be responsible for any recitals or
statements or warranties or representations of any party (other than the
Security Trustee) contained herein or in any other Transaction Document
or any other document entered into in connection therewith and may assume
the accuracy and correctness thereof and shall not be responsible for the
execution, legality, effectiveness, adequacy, genuineness, validity or
enforceability or admissibility in evidence of any such agreement or
other document or any trust or security thereby constituted or evidenced.
The Security Trustee may accept without enquiry, requisition or objection
such title as the Seventh Issuer may have to the Seventh Issuer Charged
Property or any part thereof from time to time and shall not be required
to investigate or make any enquiry into the title of the Seventh Issuer
to the Seventh Issuer Charged Property or any part thereof from time to
time whether or not any default or failure is or was known to the
Security Trustee or might be, or might have been, discovered upon
examination, inquiry or investigation and whether or not capable of
remedy. Notwithstanding the generality of the foregoing, each Seventh
Issuer Secured Creditor shall be solely responsible for making its own
independent appraisal of and investigation into the financial condition,
creditworthiness, condition, affairs, status and nature of the Seventh
Issuer, and the Security Trustee shall not at any time have any
responsibility for the same and each Seventh Issuer Secured Creditor
shall not rely on the Security Trustee in respect thereof.
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22.3 PERFECTION
The Security Trustee shall not be bound to give notice to any person of
the execution of this Deed nor shall it be liable for any failure,
omission or defect in perfecting the security intended to be constituted
hereby including, without prejudice to the generality of the foregoing:
(a) failure to obtain any licence, consent or other authority for the
execution of the same;
(b) failure to register the same in accordance with the provisions of
any of the documents of title of the Seventh Issuer to any of the
Seventh Issuer Charged Property; and
(c) failure to effect or procure registration of or otherwise protect
any of the Seventh Issuer Transaction Documents by registering the
same under any registration laws in any territory, or by
registering any notice, caution or other entry prescribed by or
pursuant to the provisions of the said laws.
22.4 ENFORCEABILITY, ETC.
The Security Trustee shall not be responsible for the genuineness,
validity, suitability or effectiveness of any of the Seventh Issuer
Transaction Documents or any other documents entered into in connection
therewith or any other document or any obligations or rights created or
purported to be created thereby or pursuant thereto or any security or
the priority thereof constituted or purported to be constituted by or
pursuant to this Deed or any of the Seventh Issuer Transaction Documents,
nor shall it be responsible or liable to any person because of any
invalidity of any provision of such documents or the unenforceability
thereof, whether arising from statute, law or decision of any court and
(without prejudice to the generality of the foregoing) the Security
Trustee shall not have any responsibility for or have any duty to make
any investigation in respect of or in any way be liable whatsoever for:
(a) the nature, status, creditworthiness or solvency of the Seventh
Issuer or Funding 1 or any other person or entity who has at any
time provided any security or support whether by guarantee, charge
or otherwise in respect of any advance made to the Seventh Issuer;
(b) the title, ownership, value, sufficiency, enforceability or
existence of any Seventh Issuer Charged Property or any security
(howsoever described) relating thereto;
(c) the execution, legality, validity, adequacy, admissibility in
evidence, sufficiency or enforceability of this Deed or any other
Seventh Issuer Transaction Document comprised within the Seventh
Issuer Charged Property or any other document entered into in
connection therewith;
(d) the registration, filing, protection or perfection of any security
relating to this Deed or the other Transaction Documents relating
to the Seventh Issuer Charged Property or the priority of the
security thereby created whether in respect of any initial advance
or any subsequent advance or any other sums or liabilities;
(e) the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Seventh Issuer or any other
person or entity who has at any time provided any Seventh Issuer
Transaction Document comprised within the Seventh Issuer Charged
Property or in any document entered into in connection therewith;
39
(f) the performance or observance by the Seventh Issuer or any other
person with any provisions of this Deed or any other Seventh Issuer
Transaction Document comprised within the Seventh Issuer Charged
Property or in any document entered into in connection therewith or
the fulfilment or satisfaction of any conditions contained therein
or relating thereto or as to the existence or occurrence at any
time of any default, event of default or similar event contained
therein or any waiver or consent which has at any time been granted
in relation to any of the foregoing;
(g) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered or
obtained at any time in connection with the Seventh Issuer Charged
Property;
(h) the title of the Seventh Issuer to any of the Seventh Issuer
Charged Property;
(i) the failure to effect or procure registration of or to give notice
to any person in relation to or otherwise protect the security
created or purported to be created by or pursuant to this Deed or
other documents entered into in connection herewith;
(j) the failure to call for delivery of documents of title to or
require any transfers, assignments, legal mortgages, charges or
other further assurances in relation to any of the assets the
subject matter of any of this Deed or any other document; or
(k) any other matter or thing relating to or in any way connected with
this Deed or the Seventh Issuer Charged Property or any document
entered into in connection therewith whether or not similar to the
foregoing.
22.5 NO SUPERVISION
The Security Trustee shall be under no obligation to monitor or supervise
the respective functions of the Seventh Issuer Account Bank under the
Seventh Issuer Bank Account Agreement or the Seventh Issuer Cash Manager
under the Seventh Issuer Cash Management Agreement or of any other person
under or pursuant to any of the other Transaction Documents.
22.6 NO LIABILITY
The Security Trustee shall not be liable or responsible for any loss,
cost, damage, expense or inconvenience which may result from anything
done or omitted to be done by it under this Deed or any of the other
Transaction Documents subject, with respect to the Seventh Issuer, to
CLAUSE 11.1 and otherwise, save where the same arises as a result of the
Security Trustee's fraud, wilful default or gross negligence.
22.7 CONCLUSIVE AND BINDING DETERMINATIONS
The Security Trustee as between itself and the Seventh Issuer Secured
Creditors shall have full power to determine all questions and doubts
arising in relation to any of the provisions of this Deed and the other
Seventh Issuer Transaction Documents and every such determination,
whether made upon a question actually raised or implied in the acts or
proceedings of the Security Trustee, shall be conclusive and shall bind
the Security Trustee and the Seventh Issuer Secured Creditors.
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22.8 USE OF PROCEEDS
The Security Trustee shall not be responsible for the receipt or
application by the Seventh Issuer of the proceeds of the issue of the
Seventh Issuer Notes.
22.9 MATERIAL PREJUDICE
The Security Trustee may determine whether or not any event, matter or
thing is, in its opinion, materially prejudicial to the interests of the
Seventh Issuer Secured Creditors and if the Security Trustee shall
certify that any such event, matter or thing is, in its opinion,
materially prejudicial, such certificate shall be conclusive and binding
upon the Seventh Issuer Secured Creditors.
22.10 NO INDEMNITY
None of the provisions of this Deed shall, in any case in which the
Security Trustee has failed to show the degree of care and diligence
required of it as security trustee of this Deed, having regard to the
provisions of this Deed and any of the other Seventh Issuer Transaction
Documents to which the Security Trustee is a party conferring on the
Security Trustee any powers, authorities or discretions, relieve or
indemnify the Security Trustee against any liabilities which by virtue of
any rule of law would otherwise attach to it in respect of any
negligence, default, breach of duty or breach of trust of which it may be
guilty in relation to its duties under this Deed.
23. SUPPLEMENTAL PROVISIONS REGARDING THE SECURITY TRUSTEE
23.1 ASSUMPTION OF NO DEFAULT
Except as herein otherwise expressly provided, the Security Trustee shall
be and is hereby authorised to assume without enquiry, and it is hereby
declared to be the intention of the Security Trustee that it shall assume
without enquiry, that the Seventh Issuer and each of the other parties
thereto is duly performing and observing all the covenants and provisions
contained in this Deed and the other Transaction Documents to be
performed and observed on their parts and that no event has occurred
which constitutes a Seventh Issuer Note Event of Default or a Potential
Seventh Issuer Note Event of Default or which would cause a right or
remedy to become exercisable, whether by Funding 1, the Seventh Issuer or
the Security Trustee, under or in respect of any of the Transaction
Documents.
23.2 DELEGATION
The Security Trustee may, in the execution of all or any of the trusts,
powers, authorities and discretions vested in it by this Deed or any of
the other Seventh Issuer Transaction Documents, act by responsible
officers or a responsible officer for the time being of the Security
Trustee. The Security Trustee may also, whenever it thinks expedient in
the interests of the Seventh Issuer Secured Creditors, whether by power
of attorney or otherwise, delegate to any person or persons all or any of
the trusts, rights, powers, duties, authorities and discretions vested in
it by this Deed or any of the other Seventh Issuer Transaction Documents.
Any such delegation may be made upon such terms and conditions and
subject to such regulations (including power to sub-delegate) as the
Security Trustee may think fit in the interests of the Seventh Issuer
Secured Creditors or any of them and, provided that the Security Trustee
shall have exercised reasonable care in the selection of such delegate
and, where a power to sub-delegate has been given, has obliged the
delegate to exercise reasonable care in the selection of any sub-
delegate, the Security Trustee shall not be bound to supervise the
proceedings of, or be responsible for any loss incurred by any misconduct
or default on
41
the part of, such delegate or sub-delegate. The Security Trustee shall
give prompt notice to the Seventh Issuer of the appointment of any
delegate as aforesaid and shall procure that any delegate shall also give
prompt notice of the appointment of any sub-delegate to the Seventh
Issuer.
23.3 COMMERCIAL TRANSACTIONS
The Security Trustee shall not, and no director, officer or employee of
any corporation being a trustee hereof shall, by reason of the fiduciary
position of the Security Trustee, be in any way precluded from making any
contracts or entering into any transactions in the ordinary course of
business with the Seventh Issuer, Funding 1 or Holdings or any other
subsidiary of Holdings or any other party to the Seventh Issuer
Transaction Documents or any other party to any of the Seventh Issuer
Transaction Documents or from accepting the trusteeship of any stock,
shares, debenture stock, debentures or securities of any such person.
Without prejudice to the generality of the foregoing, it is expressly
declared that such contracts and transactions include any contract or
transaction in relation to the placing, underwriting, purchasing,
subscribing for or dealing with or lending money upon or making payments
in respect of any stock, shares, debenture stock, debentures or other
securities of the Seventh Issuer, Funding 1 or Holdings or any other
subsidiary of Holdings or any other party to the Seventh Issuer
Transaction Documents or any contract of banking or insurance with the
Seventh Issuer, Funding 1 or Holdings or any other subsidiary of Holdings
or any other party to the Transaction Documents. Neither the Security
Trustee nor any such director or officer of the Security Trustee shall be
accountable to any of the Seventh Issuer Secured Creditors or the Seventh
Issuer, Funding 1 or Holdings for any profit, fees, commissions,
interest, discounts or share of brokerage earned, arising or resulting
from any such contracts or transactions. The Security Trustee and any
such director, officer or employee shall be at liberty to retain the same
for its or his own benefit.
23.4 ADDITIONAL POWERS
The powers conferred by this Deed upon the Security Trustee shall be in
addition to any powers which may from time to time be vested in it by
general law.
23.5 DUTIES AND RESPONSIBILITIES OF SECURITY TRUSTEE
The Security Trustee has no duties or responsibilities except those
expressly set out in this Deed or in the Transaction Documents.
23.6 CONSENT OF SECURITY TRUSTEE
If a request in writing is made to the Security Trustee by the Seventh
Issuer or any other person to give its consent to any event, matter or
thing, then:
(a) if the Seventh Issuer Transaction Document specifies that the
Security Trustee is required to give its consent to that event,
matter or thing if certain specified conditions are satisfied in
relation to that event, matter or thing, then the Security Trustee
shall give its consent to that event, matter or thing upon being
satisfied acting reasonably that those specified conditions have
been satisfied; and
(b) in any other case, the Security Trustee may give its consent if to
do so would not, in its opinion, be materially prejudicial to the
interests of the Seventh Issuer Secured Creditors.
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23.7 INTERESTS OF SEVENTH ISSUER SECURED CREDITORS
Where the Security Trustee is required to have regard to the interests of
any Seventh Issuer Secured Creditor (other than the Seventh Issuer
Noteholders), the Security Trustee shall consult with such Seventh Issuer
Secured Creditor and may rely on the opinion of such Seventh Issuer
Secured Creditor as to whether any act, matter or thing is or is not in
the interests of, or materially prejudicial to the interests of, such
Seventh Issuer Secured Creditor.
23.8 MODIFICATION TO TRANSACTION DOCUMENTS
(a) Without prejudice to CLAUSE 23.6 (Consent of Security Trustee), the
Security Trustee may from time to time and at any time without any
consent or sanction of the Seventh Issuer Secured Creditors concur
with the Seventh Issuer or any person in making or sanctioning any
modification:
(i) to any of the Seventh Issuer Transaction Documents which in
the opinion of the Security Trustee it may be expedient to
make, provided that the Security Trustee is of the opinion,
acting reasonably, that such modification will not be
materially prejudicial to the interests of the Seventh Issuer
Secured Creditor or, if it is not of that opinion in relation
to any Seventh Issuer Secured Creditor, such Seventh Issuer
Secured Creditor has given its written consent to such
modification; or
(ii) to any of the Seventh Issuer Transaction Documents which in
the Security Trustee's opinion is made to correct a manifest
error or an error established as such to the satisfaction of
the Security Trustee or is of a formal, minor or technical
nature.
(b) Without prejudice to CLAUSE 23.6 (Consent of Security Trustee) and
subject to paragraph (c) below, the Security Trustee shall be
required to give its consent to any modifications to the Mortgage
Sale Agreement, the Servicing Agreement, the Cash Management
Agreement, the Funding 1 Deed of Charge, the Funding 1 Liquidity
Facility Agreement, the Funding 1 Swap Agreement, the Intercompany
Loan Terms and Conditions, the Bank Account Agreement and the
Master Definitions and Construction Schedule that are requested by
Funding 1 or the Cash Manager, provided that (i) the Funding 1
Liquidity Facility Provider, the Funding 1 Swap Provider and the
Seventh Issuer Swap Providers provide written confirmation to the
Security Trustee consenting to such modification of any and all of
those documents listed under this paragraph (b) to which they are,
respectively, a party (such consent not to be unreasonably
withheld) and in any event such consent shall be deemed to be given
by each of the Funding 1 Liquidity Facility Provider, the Funding 1
Swap Provider and the Seventh Issuer Swap Providers (as the case
may be) if no written response is received by the Security Trustee
from each party, respectively, by the tenth Business Day after the
Security Trustee's request for such consent and (ii) Funding 1 or
the Cash Manager, as the case may be, has certified to the Security
Trustee in writing that such modifications are required in order to
accommodate:
(i) the entry by Funding 1 into New Intercompany Loan Agreements
and/or the addition of other relevant creditors to the
Transaction Documents;
(ii) the issue of new types of notes by New Issuers;
(iii) the inclusion of Funding 2 as a beneficiary of the Mortgages
Trust;
43
(iv) the issue of new notes by Funding 2;
(v) the sale of New Loan Types to the Mortgages Trustee;
(vi) changes to be made to the Reserve Fund Required Amount the
Liquidity Reserve Fund Required Amount and/or the manner in
which the Reserve Funds are funded;
(vii) changes to be made to the definitions of Asset Trigger Event
and Non-Asset Trigger Event; and
(viii)the addition of an Additional Funding 1 Liquidity Facility
pursuant to the terms of the Funding 1 Deed of Charge.
(c) The Security Trustee shall only be required to give its consent to
the modifications set out in paragraph (b) above if the Security
Trustee is satisfied that:
(i) in respect of the matters set out in paragraphs (b)(i) to
(b)(iv) inclusive, the relevant conditions precedent to, as
applicable, the addition of New Issuers (as set out in CLAUSE
2.2 of the Intercompany Loan Terms and Conditions), the
inclusion of Funding 2 as a beneficiary of the Mortgages
Trust (as set out in CLAUSE 13 (Funding 2 becomes a
beneficiary of the Mortgages Trust) of the Mortgages Trust
Deed) and the sale of New Loans to the Mortgages Trustee (as
set out in CLAUSE 4 (Sale and Purchase of New Portfolios) of
the Mortgage Sale Agreement), have been satisfied; and
(ii) in respect of the matters set out in paragraphs (b)(i) to
(b)(vii) inclusive, the Security Trustee has received written
confirmation from each of the Rating Agencies that the
relevant modifications will not adversely affect the then
current ratings of the Seventh Issuer Notes.
(d) Each Seventh Issuer Secured Creditor hereby acknowledges that the
Security Trustee is required to make the modifications set out in
paragraph (b) above (subject to paragraph (c)), and each Seventh
Issuer Secured Creditor further acknowledges that such
modifications may adversely affect the manner in which the
Mortgages Trustee allocates monies to Funding 1 and/or the manner
in which Funding 1 pays monies to the Seventh Issuer and/or the
amount of monies available to the Seventh Issuer to meet the
Seventh Issuer Secured Obligations. Each Seventh Issuer Secured
Creditor agrees that such modifications shall be binding on it and
unless the Security Trustee otherwise agrees, notice thereof shall
be given by the Seventh Issuer Cash Manager to the Seventh Issuer
Secured Creditors as soon as practicable after the modifications
have been made.
(e) Each of the Seventh Issuer Secured Creditors agrees from time to
time to do and perform such other and further acts and execute and
deliver any and all such other documents and instruments as may be
required by law or requested by the other party at the other
party's expense to establish, maintain and protect the rights and
remedies of the other party and carry out and effect the intent and
purpose of this CLAUSE 23.8.
23.9 RATING AGENCIES
If:
44
(a) a confirmation of rating or other response by a Rating Agency is a
condition to any action or step under this Deed or any other
Seventh Issuer Transaction Document; and
(b) a written request for such confirmation or response is delivered to
each Rating Agency by the Seventh Issuer (copied to the Security
Trustee) and either one or more Rating Agency (each a NON-
RESPONSIVE RATING AGENCY) indicates that it does not consider such
confirmation or response necessary in the circumstance or within 30
days of delivery of such request elicits no confirmation or
response and/or such request elicits no statement by such Rating
Agency that such confirmation or response could not be given; and
(c) at least one Rating Agency gives such a confirmation or response
based on the same facts,
then such condition shall be deemed to be modified with respect to the
facts set out in the request referred to in (b) so that there shall be no
requirement for the confirmation or response from the Non-Responsive
Rating Agency.
The Security Trustee shall be entitled to treat as conclusive a
certificate by any director, officer or employee of the Seventh Issuer,
Funding 1, the Seller, any investment bank or financial adviser acting in
relation to the Seventh Issuer Notes as to any matter referred to in (b)
in the absence of manifest error or the Security Trustee having facts
contradicting such certificates specifically drawn to his attention and
the Security Trustee shall not be responsible for any loss, liability,
costs, damages, expenses or inconvenience that may be caused as a result
of treating such certificate as conclusive.
23.10 AUTHORISATION OR WAIVER OF BREACH
The Security Trustee may, without the consent of the Seventh Issuer
Secured Creditors and without prejudice to its right in respect of any
further or other breach, from time to time and at any time, but only if
and in so far as in its opinion acting reasonably the interests of the
Seventh Issuer Secured Creditors will not be materially prejudiced
thereby authorise or waive, on such terms and conditions (if any) as
shall seem expedient to it, any proposed or actual breach of any of the
covenants or provisions contained in or arising pursuant to any of the
Transaction Documents. Any such authorisation or waiver shall be binding
on the Seventh Issuer Secured Creditors and, unless the Security Trustee
otherwise agrees, notice thereof shall be given by the Seventh Issuer
Cash Manager to the Seventh Issuer Secured Creditors as soon as
practicable thereafter.
23.11 INCORPORATION BY REFERENCE
The provisions of Schedule 4 to the Seventh Issuer Trust Deed shall be
deemed to be incorporated in this Deed but as if references therein to
the Note Trustee were to the Security Trustee.
24. REMUNERATION AND INDEMNIFICATION OF THE SECURITY TRUSTEE
24.1 REMUNERATION
(a) The Seventh Issuer shall (subject as hereinafter provided) pay to
the Security Trustee annually a fee of such amount and payable on
such dates as shall from time to time be agreed in writing by the
Seventh Issuer and the Security Trustee, provided that if and for
so long as the Note Trustee and the Security Trustee are the same
person, no such
45
fee shall be payable under this Deed. All such remuneration shall
be payable in accordance with the Seventh Issuer Pre-Enforcement
Revenue Priority of Payments or, as the case may be, the Seventh
Issuer Post-Enforcement Priority of Payments. Such remuneration
shall accrue from day to day and shall be payable up to and
including the date when all of the Seventh Issuer Secured
Obligations have been paid or discharged and the Security Trustee
has released, reassigned and/or discharged the Seventh Issuer
Charged Property as provided in CLAUSE 4.1 (Prior to Payment or
Discharge of Seventh Issuer Secured Obligations).
(b) The Seventh Issuer shall in addition pay to the Security Trustee an
amount equal to the amount of any VAT chargeable in respect of its
remuneration hereunder subject to the Security Trustee issuing to
the Seventh Issuer a proper VAT invoice in respect thereof.
24.2 ADDITIONAL REMUNERATION
In the event of a Seventh Issuer Note Event of Default or Potential
Seventh Issuer Note Event of Default occurring or in the event of the
Security Trustee finding it expedient or necessary or being required to
undertake any duties which the Security Trustee and the Seventh Issuer
agree to be of an exceptional nature or otherwise outside the scope of
the normal duties of the Security Trustee under this Deed, the Seventh
Issuer shall pay to the Security Trustee such additional remuneration as
shall be agreed between the Security Trustee and the Seventh Issuer.
24.3 DISPUTES
In the event of the Security Trustee and the Seventh Issuer failing to
agree upon the amount of any remuneration from time to time pursuant to
CLAUSE 24.1 (Remuneration) or to agree in a case to which CLAUSE 24.2
(Additional Remuneration) above applies, upon whether such duties are of
an exceptional nature or otherwise outside the scope of the normal duties
of the Security Trustee hereunder or upon the amount of such additional
remuneration, such matters shall be determined by an investment bank
(acting as an expert and not as an arbitrator) selected by the Security
Trustee and approved by the Seventh Issuer or, failing such approval,
nominated by the President for the time being of the Law Society of
England and Wales, the expenses being involved in such nomination and the
fees of such investment bank being payable by the Seventh Issuer, and the
decision of any such investment bank shall be final and binding on the
Seventh Issuer and the Security Trustee.
24.4 EXPENSES
In addition to remuneration hereunder, the Seventh Issuer shall on
written request, pay (on the basis of a full indemnity) all other costs,
charges and expenses which the Security Trustee may properly incur in
relation to the negotiation, preparation and execution of, the exercise
of its powers and the performance of its duties under, and in any other
manner in relation to, this Deed, the Seventh Issuer Security and any of
the other Seventh Issuer Transaction Documents to which the Security
Trustee is a party including but not limited to travelling and legal
expenses and any stamp, issue, registration, documentary and other Taxes
or duties paid or payable by the Security Trustee in connection with any
action taken or contemplated by or on behalf of the Security Trustee for
enforcing, or resolving any doubt concerning, or for any other purpose in
relation to, this Deed or any of the other Transaction Documents.
46
24.5 INDEMNITY
Subject to CLAUSE 22.10 (No Indemnity) and without prejudice to the right
of indemnity by law given to trustees, the Seventh Issuer shall indemnify
the Security Trustee, on an after Tax basis, in respect of all
proceedings (including claims and liabilities in respect of taxes other
than on its own overall net income), claims and demands and all costs,
charges, expenses (including, without prejudice to the generality of the
foregoing, legal and travelling expenses), and liabilities to which it
(or any person appointed by it to whom any trust, power, authority or
discretion may be delegated by it in the execution or purported execution
of the trusts, powers, authorities or discretions vested in it by or
pursuant to this Deed and any of the other Seventh Issuer Transaction
Documents to which the Security Trustee is a party) may be or become
liable or which may be properly incurred by it (or any such person as
aforesaid) in the execution or purported execution of any of its trusts,
powers, authorities and discretions hereunder or its functions under any
such appointment or in respect of any other matter or thing done or
omitted in any way relating to this Deed and any of the other Seventh
Issuer Transaction Documents to which the Security Trustee is a party, or
any such appointment and the Security Trustee shall be entitled to be
indemnified out of the Seventh Issuer Charged Property in respect thereof
save where the same arises as the result of the fraud, negligence or
wilful default of the Security Trustee or its officers or employees. The
Security Trustee shall not be entitled to be indemnified twice in respect
of the same matter pursuant to this Clause and the indemnity contained in
CLAUSE 12.2 (Indemnity) of this Deed.
24.6 SURVIVAL
Unless otherwise specifically stated in any discharge of this Deed, the
provisions of this CLAUSE 24 shall continue in full force and effect
notwithstanding such discharge.
25. APPOINTMENT OF NEW SECURITY TRUSTEE AND REMOVAL OF SECURITY TRUSTEE
25.1 POWER OF SEVENTH ISSUER
(a) The power of appointing a new Security Trustee and removing the
Security Trustee or any new Security Trustee shall be vested in the
Seventh Issuer, provided that such appointment or removal must be
approved by (i) an Extraordinary Resolution of the Class A
Noteholders, the Class B Noteholders and the Class C Noteholders
and (ii) in writing by each Seventh Issuer Secured Creditor (such
approval not to be reasonably withheld or delayed). Any
appointment of a new Security Trustee and any retirement or removal
of an existing Security Trustee hereof shall as soon as practicable
thereafter be notified by the Seventh Issuer to the Seventh Issuer
Secured Creditors.
(b) Any new Security Trustee must (i) meet the requirements of section
26(a)(1) of the US Investment Company Act of 1940; (ii) not be an
affiliate (as defined in Rule 405 of the US Securities Act of 1933,
as amended) of the Seventh Issuer or of any person involved in the
organisation or operation of the Seventh Issuer; (iii) not offer or
provide credit or credit enhancement to the Seventh Issuer; and
(iv) execute an agreement or instrument concerning the Seventh
Issuer Notes containing provisions to the effect set forth in
section 26(a)(3) of the US Investment Company Act of 1940.
25.2 POWER OF SECURITY TRUSTEE
Notwithstanding the provisions of CLAUSE 25.1 (Power of Seventh Issuer),
the Security Trustee may (as attorney for the Seventh Issuer) upon giving
prior written notice to the Seventh Issuer but without the consent of the
Seventh Issuer or the Seventh Issuer Secured
47
Creditors appoint any person established or resident in any jurisdiction
(whether a trust corporation or not) to act either as a separate security
trustee or as a co-trustee jointly with the Security Trustee:
(a) if the Security Trustee considers such appointment to be in the
interests of the Seventh Issuer Secured Creditors (or any of them);
(b) for the purposes of conforming to any legal requirement,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed or any Seventh Issuer
Charged Property is or is to be located; or
(c) for the purposes of obtaining a judgment in any jurisdiction or the
enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of this Deed or any of the other
Transaction Documents to which the Security Trustee is a party or
obligations arising pursuant thereto or any of the security
constituted by or pursuant to this Deed.
The Seventh Issuer hereby irrevocably appoints the Security Trustee to be
its attorney in its name and on its behalf to execute any such instrument
of appointment. Such a person shall (subject always to the provisions of
this Deed or any of the other Transaction Documents to which the Security
Trustee is a party) have such trusts, powers, authorities and discretions
(not exceeding those conferred on the Security Trustee by this Deed or
any of the other Transaction Documents to which the Security Trustee is a
party) and such duties and obligations as shall be conferred or imposed
on it by the instrument of appointment. The Security Trustee shall have
power in like manner to remove any such person. Such proper remuneration
as the Security Trustee may pay to any such person, together with any
attributable costs, charges and expenses incurred by it in performing its
function as such separate trustee or co-trustee, shall for the purposes
of this Deed be treated as costs, charges and expenses incurred by the
Security Trustee.
25.3 MULTIPLE TRUSTEES
Whenever there shall be more than two security trustees hereof, the
majority of such security trustees shall be competent to execute and
exercise all the trusts, powers, authorities and discretions vested by
this Deed and any of the other Transaction Documents in the Security
Trustee generally.
26. RETIREMENT OF SECURITY TRUSTEE
Any security trustee for the time being of this Deed may retire at any
time upon giving not less than three calendar months' prior notice in
writing to the Seventh Issuer without assigning any reason therefor and
without being responsible for any costs resulting from such retirement.
Provided, however, that the retirement or removal of any security trustee
shall not become effective unless there remains at least one security
trustee hereof in office upon such retirement or removal. The Seventh
Issuer covenants that, in the event of a security trustee (being a sole
security trustee) giving notice under this Clause or being removed as
referred to in CLAUSE 25.1 (Power of Seventh Issuer), it shall use its
best endeavours to procure a new security trustee of this Deed to be
appointed as soon as reasonably practicable thereafter. If within 60 days
of having given notice of its intention to retire, the Seventh Issuer has
failed to appoint a replacement Security Trustee, the outgoing Security
Trustee will be entitled to appoint its successor (provided that such
successor is acceptable to the Rating Agencies and will agree to the
terms of this Deed) and that the Rating Agencies confirm in writing that
the current ratings of the Notes shall not be either downgraded, reviewed
or withdrawn as a result of such appointment).
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27. TRUST INDENTURE ACT PREVAILS
If any provision of this Deed limits, qualifies or conflicts with another
provision which is required to be included in this Deed by, and is not
subject to a contractual waiver under, the U.S. Trust Indenture Act of
1939, as amended, the required provision of that act shall prevail.
28. NOTICES AND DEMANDS
28.1 SERVICE OF NOTICES
Any notices to be given pursuant to this Deed to any of the parties
hereto shall be in writing and shall be sufficiently served if sent to
the addresses given in CLAUSE 28.2 (Addresses) by prepaid first class
post, by hand or facsimile transmission and shall be deemed to be given
(in the case of facsimile transmission) when despatched, (where delivered
by hand) on the day of delivery if delivered before 17.00 hours on a
Business Day or on the next Business Day if delivered thereafter or on a
day which is not a Business Day or (in the case of first class post) when
it would be received in the ordinary course of the post.
28.2 ADDRESSES
The addresses referred to in this CLAUSE 28.2 are as follows:
(a) in the case of the Seventh Issuer, to Permanent Financing (No. 7)
PLC at Blackwell House, Guildhall Yard, London EC2V 5AE (facsimile
number +44 (0) 20 7556 0975) for the attention of the Directors
with a copy to Halifax plc at the address and facsimile number set
out in paragraph (d) below;
(b) in the case of the Security Trustee and the Note Trustee, to The
Bank of New York, 48th Floor, One Canada Square, London E14 5AL
(facsimile number +44 (0) 20 7964 6399) for the attention of Global
Structured Finance -- Corporate Trust;
(c) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar and the Transfer Agent, to Citibank, N.A., London Branch,
5 Carmelite Street, London EC4Y 0PA (facsimile number +44 (0) 20
7508 3878) for the attention of Agency and Trust;
(d) in the case of the Seventh Issuer Cash Manager, to Halifax plc at
Trinity Road (LP/3/3/SEC), Halifax, West Yorkshire HX1 2RG
(facsimile number +44 (0) 113 235 7511) for the attention of the
Head of Mortgage Securitisation with a copy to HBOS Treasury
Services plc, 33 Old Broad Street, London EC2N 1HZ (facsimile
number +44 (0) 20 7574 8303) for the attention of the Head of
Mortgage Securitisation and Covered Bonds;
(e) in the case of the Seventh Issuer Account Bank, to Bank of
Scotland, Leeds Business Centre, 116 Wellington Street, Leeds, LS1
4LT (facsimile number +44 (0) 1132 155899) for the attention of the
Corporate Banking Channel Support with copies to: Halifax plc,
Trinity Road (LP/3/3/SEC), Halifax, West Yorkshire HX1 2RG
(facsimile number +44 (0) 113 235 7511) for the attention of the
Head of Mortgage Securitisation; and HBOS Treasury Services plc, 33
Old Broad Street, London EC2N 1HZ (facsimile number +44 (0) 207574
8303) for the attention of Head of Mortgage Securitisation and
Covered Bonds;
49
(f) in the case of the US Paying Agent, to Citibank, N.A., New York
Branch, 14th Floor, 388 Greenwich Street, New York, New York 10013
for the attention of Agency and Trust (facsimile number +1 212 657
3862);
(g) in the case of the Series 1 Seventh Issuer Swap Providers, to UBS
Limited, 1 Finsbury Avenue, London, EC2M 2PP for the attention of
Credit Risk Management -- Documentation Unit/Legal (facsimile no:
+44 20 7567 4406 / +44 20 7568 9247);
(h) in the case of the Series 2 Seventh Issuer Swap Providers, to Swiss
Re Financial Products Corporation, 55 East 52nd Street, New York,
New York 10055 (facsimile number +1 212 317 5335) for the attention
of Head of Operations with a copy to Swiss Re Financial Products
Corporation, 55 East 52nd Street, New York, New York 10055
(facsimile number +1 212 317 5474) for the attention of General
Counsel;
(i) in the case of the Series 3 Seventh Issuer Swap Providers, to
Citibank, N.A., London Branch, Citigroup Centre, 33 Canada Square,
London E14 5LB, (facsimile number +44 (0) 20 7508 9115) for the
attention of the Head of Sales and the Trading Legal Department,
with a copy to the Head of the Structured Support Team at Citibank,
N.A., Citigroup Centre, 33 Canada Square, London E14 5LB (facsimile
number +44 (0) 20 8636 3868);
(j) in the case of the Corporate Services Provider, to Structured
Finance Management Limited, Blackwell House, Guildhall Yard, London
EC2V 5AE (facsimile number +44 (0) 20 7556 0975) for the attention
of the Directors;
(k) in the case of Fitch Ratings, to Fitch Ratings Limited, 101
Finsbury Pavement, London EC2A 1RS (facsimile number +44 (0) 20
7417 6262) for the attention of SF Surveillance;
(l) in the case of Moody's, to Moody's Investors Service, 2 Minster
Court, Mincing Lane, London EC3R 7XB (facsimile number +44 (0) 20
7772 5400) for the attention of Asset Backed Finance; and
(m) in the case of S&P, to Standard & Poor's, 20 Canada Square, 11th
Floor, London E14 5LH (facsimile number +44 (0) 20 7826 3598) for
the attention of the Structured Finance Surveillance Group,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
CLAUSE 28.
29. FURTHER PROVISIONS
29.1 EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the charges
contained in this Deed, a statement as to any amount due to any Seventh
Issuer Secured Creditor or of the Seventh Issuer Secured Obligations or
any part thereof or a statement of any amounts which have been notified
to the Security Trustee as being amounts due to any Seventh Issuer
Secured Creditor which is certified as being correct by an officer of the
Security Trustee or an officer of the relevant Seventh Issuer Secured
Creditor shall, save in the case of manifest error, be conclusive
evidence that such amount is in fact due and payable.
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29.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Security Trustee, the Seventh Issuer Secured
Creditors and any Receiver are cumulative, and may be exercised as often
as they consider appropriate and are in addition to their respective
rights under the general law. The respective rights of the Security
Trustee, the Seventh Issuer Secured Creditors and any Receiver in
relation to this Deed (whether arising under this Deed or under the
general law) shall not be capable of being waived or varied otherwise
than by express waiver or variation in writing; and, in particular, any
failure to exercise or any delay in exercising any such rights shall not
operate as a variation or waiver of that or any other such right; any
defective or partial exercise of such rights shall not preclude any other
or further exercise of that or any other such right; and no act or course
of conduct or negotiation on their part or on their behalf shall in any
way preclude them from exercising any such right or constitute a
suspension or any variation of any such right.
29.3 INVALIDITY OF ANY PROVISION
If any of the provisions of this Deed become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
29.4 SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law, the Seventh Issuer hereby waives any provision of law but
only to the extent permitted by law which renders any provision of this
Deed prohibited or unenforceable in any respect.
29.5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which,
when executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument
provided, however, that this Deed shall have no force or effect until it
is executed by the last party to execute the same and shall be deemed to
have been executed and delivered in the place where such last party
executed this Deed.
29.6 NEW INTERCOMPANY LOAN AGREEMENTS
If Funding 1 enters into a New Intercompany Loan Agreement, then the
parties hereto shall execute such documents and take such action as may
be necessary or required by the Security Trustee for the purpose of
including the New Issuer, any New Funding 1 Swap Provider, any New Start-
Up Loan Provider or any other person who has executed an Accession
Undertaking or any New Term Advance in the Transaction Documents.
29.7 VARIATION
No variation of any provision(s) of this Deed shall be effective unless
it is in writing and signed by (or by a person duly authorised by) each
of the parties hereto.
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29.8 EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Deed do not intend that any term of this Deed should
be enforced, by virtue of the Contracts (Rights of Third Parties) Act
1999, by any person who is not a party to this Deed.
30. CHOICE OF LAW
30.1 GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with
English law (other than any terms hereof which are particular to the law
of Scotland, which shall be construed in accordance with Scots law).
30.2 SUBMISSION TO JURISDICTION
Each party to this Deed hereby irrevocably submits to the non-exclusive
jurisdiction of the English courts in any action or proceeding arising
out of or relating to this Deed, and hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and
determined by such courts. Each party to this Deed hereby irrevocably
waives, to the fullest extent it may possibly do so, any defence or claim
that the English courts are an inconvenient forum for the maintenance or
hearing of such action or proceeding.
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30.3 AGENT FOR PROCESS
The U.S. Paying Agent shall at all times maintain an agent for service of
process of any other documents in proceedings in England or any
proceedings in connection with this Deed. Such agent shall be the
Principal Paying Agent having its office at 5 Carmelite Street, London
EC4Y 0PA (and by execution of this Deed, the Principal Paying Agent
hereby accepts such appointment). Any writ judgment or other notice of
legal process shall be sufficiently served on the Seventh Issuer if
delivered to such agent at its address for the time being. The U.S.
Paying Agent undertakes not to revoke the authority of the above agent
and if, for any reason, the Security Trustee requests the U.S. Paying
Agent to do so, it shall promptly appoint another such agent with an
address in England and advise the Note Trustee, the Seventh Issuer Swap
Providers, the Corporate Services Provider and the Security Trustee
thereof. If following such a request the U.S. Paying Agent fails to
appoint another agent the Security Trustee shall be entitled to appoint
one on their behalf.
The U.S. Paying Agent agrees that failure by a process agent to notify
the U.S. Paying Agent of the process will not invalidate the proceedings
concerned.
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly executed
and delivered as a deed the day and year first before written.
SIGNATORIES
THE SEVENTH ISSUER
EXECUTED as a DEED by )
PERMANENT FINANCING (NO. 7) PLC )
acting by its attorney )
in the presence of: )
(as attorney for PERMANENT
FINANCING (NO. 7) PLC)
Witness:
Name:....................
Address:
53
THE SECURITY TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
in its capacity as Security Trustee )
acting by its authorised signatory )
Authorised Signatory:
THE NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
in its capacity as Note Trustee )
acting by its authorised signatory )
Authorised Signatory:
AGENT BANK, PRINCIPAL PAYING AGENT, REGISTRAR AND
TRANSFER AGENT
EXECUTED as a DEED on behalf of )
CITIBANK, N.A., a company incorporated in )
the United States of America, )
in its capacities as Agent Bank, Principal )
Paying Agent, Registrar and Transfer Agent, )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority
of the company
SEVENTH ISSUER CASH MANAGER
EXECUTED as a DEED by )
HALIFAX plc )
in its capacity as Seventh Issuer Cash Manager )
acting by its attorney )
in the presence of: )
(as attorney for HALIFAX PLC)
Witness:
Name:.....................
Address:
54
SEVENTH ISSUER ACCOUNT BANK
EXECUTED as a DEED by )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
in its capacity as Account Bank )
acting by its attorney in the presence of )
Witness's Signature: (as attorney for the GOVERNOR
AND COMPANY OF THE BANK OF
Address: SCOTLAND)
Name:........................
U.S. PAYING AGENT
EXECUTED as a DEED by )
CITIBANK, N.A., NEW YORK BRANCH )
a company incorporated in )
the United States of America, )
in its capacity as U.S. Paying Agent )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority
of the company
SERIES 1 SEVENTH ISSUER SWAP PROVIDER
EXECUTED as a DEED by
UBS LIMITED )
in its capacity as )
SERIES 1 SEVENTH ISSUER SWAP PROVIDER )
acting by its attorney )
in the presence of: )
Witness's Signature:......................
Name:.....................................
Address:..................................
55
SERIES 2 SEVENTH ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
SWISS RE FINANCIAL )
PRODUCTS CORPORATION )
in its capacity as )
SERIES 2 SEVENTH ISSUER SWAP PROVIDER )
acting by its attorney )
in the presence of: )
Witness's Signature:......................
Name:.....................................
Address:..................................
SERIES 3 SEVENTH ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
CITIBANK N.A., LONDON BRANCH )
in its capacity as )
SERIES 3 SEVENTH ISSUER SWAP PROVIDER )
acting by its attorney )
in the presence of: )
Witness's Signature:
Name:.....................................
Address:
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
STRUCTURED FINANCE )
MANAGEMENT LIMITED )
in its capacity as )
CORPORATE SERVICES PROVIDER )
acting by its attorney )
in the presence of: )
(as attorney for STRUCTURED FINANCE
MANAGEMENT LIMITED)
Witness's Signature:
Name:....................................
Address:
56
SCHEDULE 1
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on 23rd March, 2005 by PERMANENT FINANCING (NO.
7) PLC (registered number 5330776,) whose registered office is Blackwell House,
Guildhall Yard, London EC2V 5AE (the PRINCIPAL).
WHEREAS:
(1) By virtue of a deed of charge (the SEVENTH ISSUER DEED OF CHARGE) dated
23rd March, 2005 between, inter alia, the Principal, the Security
Trustee, the Note Trustee, the Agent Bank, the Principal Paying Agent,
the Registrar, the Transfer Agent, the Seventh Issuer Cash Manager, the
Seventh Issuer Account Bank, the Corporate Services Provider and the
Seventh Issuer Swap Providers (each as referred to therein) provision was
made for the execution by the Principal of this Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where expressed
to the contrary) have the same meanings respectively as the words and
phrases in the Seventh Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH:
1. The Principal hereby irrevocably and by way of security for the
performance of the covenants, conditions, obligations and undertakings on
the part of the Principal contained in the Seventh Issuer Deed of Charge
appoints The Bank of New York and any other person or persons for the
time being the security trustee or security trustees of and under the
Seventh Issuer Deed of Charge (the ATTORNEY) and any receiver (including
any administrative receiver) and any manager (the RECEIVER) and/or
administrator (the ADMINISTRATOR) appointed from time to time by the
Attorney or on its behalf its true and lawful attorney for and in the
Principal's name or otherwise jointly and severally to do any act matter
or thing which the Attorney, Receiver or Administrator considers in each
case bona fide necessary for the protection or preservation of the
Attorney's interests and rights in and to the Seventh Issuer Charged
Property or which ought to be done under the covenants, undertakings and
provisions contained in the Seventh Issuer Deed of Charge on or at any
time after the service of a Seventh Issuer Note Acceleration Notice or in
any other circumstances where the Attorney has become entitled to take
the steps referred to in CLAUSES 8.4 (Power of Sale) to 8.10 (Deficiency
or Addition of Payment) (inclusive) of the Seventh Issuer Deed of Charge
including (without limitation) any or all of the following:
(a) to do every act or thing which the Attorney, Receiver or
Administrator may deem to be necessary, proper or expedient for
fully and effectually vesting, transferring or assigning the
Seventh Issuer Security and/or the Seventh Issuer Charged Property
or any part thereof and/or the Principal's estate, right, title,
benefit and/or interest therein or thereto in or to the Attorney
and its successors in title or other person or persons entitled to
the benefit thereof in the same manner and as fully and effectually
in all respects as the Principal could have done; and
(b) the power by writing under its hand by an officer of the Attorney
(including every Receiver appointed under the Seventh Issuer Deed
of Charge) from time to time to appoint a substitute attorney (each
a SUBSTITUTE) who shall have power to act on behalf of the
Principal as if that Substitute shall have been originally
appointed
57
Attorney by this Power of Attorney and/or to revoke any such
appointment at any time without assigning any reason therefor.
2. In favour of the Attorney, any Receiver and/or Administrator and/or
Substitute, or a person dealing with any of them and the successors and
assigns of such a person, all acts done and documents executed or signed
by the Attorney, a Receiver, an Administrator or a Substitute in the
purported exercise of any power conferred by this Power of Attorney shall
for all purposes be valid and binding on the Principal and its successors
and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify the
Attorney and each Receiver and/or Administrator and/or Substitute
appointed from time to time by the Attorney and their respective estates
against all actions, proceedings, claims, costs, expenses and liabilities
of every description arising from the exercise, or the purported
exercise, of any of the powers conferred by this Power of Attorney, save
where the same arises as the result of the fraud, negligence or wilful
default of the relevant Indemnified Party or its officers or employees.
4. The provisions of CLAUSE 3 shall continue in force after the revocation
or termination, howsoever arising, of this Power of Attorney.
5. The laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorney and each Receiver
and/or Administrator and/or Substitute carried out or purported to be
carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any Receiver
or Administrator or Substitute shall properly and lawfully do or cause to
be done in and concerning the Security Trustee's Seventh Issuer Security
and/or the Seventh Issuer Charged Property.
IN WITNESS WHEREOF this Power of Attorney has been executed and delivered as a
deed by the Principal the day and year first before written.
EXECUTED as a DEED by )
PERMANENT FINANCING (NO. 7) PLC )
acting by its attorney )
in the presence of: )
(as attorney for PERMANENT
FINANCING (NO. 7) PLC)
Witness:....................
Name:.......................
Address:....................
58
SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND CONSENT TO ASSIGNMENT
FORM OF NOTICE OF ASSIGNMENT
From: Permanent Financing (No. 7) PLC (the SEVENTH ISSUER)
The Bank of New York (the SECURITY TRUSTEE)
To: ABN AMRO Bank N.V., London Branch
Lehman Brothers International (Europe)
Morgan Stanley & Co. International Limited
(together, the MANAGERS)
and
ABN AMRO Bank N.V., London Branch
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
(together, the UNDERWRITERS)
23rd March, 2005
Dear Sirs,
US$1,000,000,000 SERIES 1 CLASS A ASSET BACKED FLOATING RATE NOTES DUE MARCH
2006 US$43,400,000 SERIES 1 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE
2042 US$42,200,000 SERIES 1 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE
2042 US$1,400,000,000 SERIES 2 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
SEPTEMBER 2014
US$60,700,000 SERIES 2 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
US$59,200,000 SERIES 2 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
EUR1,700,000,000 SERIES 3CLASS A ASSET BACKED FLOATING RATE NOTES DUE SEPTEMBER
2032
EUR73,700,000 SERIES 3 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
EUR71,800,000 SERIES 3 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE 2042
[GBP]850,000,000 SERIES 4 CLASS A ASSET BACKED FLOATING RATE NOTES DUE SEPTEMBER
2032 [GBP]36,800,000 SERIES 4 CLASS B ASSET BACKED FLOATING RATE NOTES DUE JUNE
2042 [GBP]35,900,000 SERIES 4 CLASS C ASSET BACKED FLOATING RATE NOTES DUE JUNE
2042 [GBP]500,000,000 SERIES 5 CLASS A ASSET BACKED FLOATING RATE NOTES DUE
SEPTEMBER 2032 (THE NOTES)
We hereby give you notice that by a deed of charge dated 23rd March, 2005 and
made between the Seventh Issuer, the Security Trustee and others (the SEVENTH
ISSUER DEED OF CHARGE), the Seventh Issuer assigned to the Security Trustee,
inter alia, all of its right, title, interest and benefit, present and future,
in, to and under the underwriting agreement and the subscription agreements
relating to the Notes dated 17th March, 2005 and made between, inter alios, the
Seventh Issuer and the Underwriters or Managers (as appropriate) named therein
(together the AGREEMENTS).
You are authorised and instructed henceforth to deal with the Security Trustee
in relation to the Agreement without further reference to us.
59
This notice is irrevocable. Please acknowledge receipt of this notice to the
Security Trustee by executing the attached Consent to Assignment.
Yours faithfully,
..........................
For and on behalf of
PERMANENT FINANCING (NO. 7) PLC
..........................
For and on behalf of
THE BANK OF NEW YORK
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CONSENT TO ASSIGNMENT
From: ABN AMRO Bank N.V., London Branch
Lehman Brothers International (Europe)
Morgan Stanley & Co. International Limited
(together, the MANAGERS)
and
ABN AMRO Bank N.V., London Branch
Lehman Brothers Inc.
Morgan Stanley & Co. Incorporated
(together, the UNDERWRITERS)
To: The Bank of New York (the SECURITY TRUSTEE)
Permanent Financing (No. 7) PLC (the SEVENTH ISSUER)
23rd March, 2005
Dear Sirs,
We hereby acknowledge receipt of the notice of assignment dated 23rd March, 2005
relating to the Seventh Issuer Deed of Charge dated 23rd March, 2005 between the
Seventh Issuer, the Security Trustee and others as adequate notice of the
assignment described therein.
We agree to deal only with Security Trustee in relation to the underwriting
agreement and the subscription agreements dated, in each case, 17th March, 2005
between the Seventh Issuer and the Underwriters or the Underwriters or Managers
(as appropriate) named therein (together, the AGREEMENTS) without any reference
to the Seventh Issuer.
We have not received from any other person any notice of assignment or charge of
or any interest in the Agreement.
Yours faithfully,
..........................
For and on behalf of
Morgan Stanley & Co. International Limited on behalf of all of the Managers
..........................
For and on behalf of
Morgan Stanley & Co. Incorporated on behalf of all of the Underwriters
61