Exhibit 4.6.1
CONFORMED COPY
AMENDED AND RESTATED MASTER ISSUER TRUST
DEED
DATED 28 MARCH 2007
▇▇▇▇▇▇ MASTER ISSUER PLC
(as Master Issuer)
and
THE BANK OF NEW YORK, LONDON BRANCH
(as Note Trustee)
RELATING TO A
RESIDENTIAL MORTGAGE-BACKED NOTE ISSUANCE PROGRAMME
CONTENTS
CLAUSE......................................................................PAGE
1. Definitions...........................................................1
2. Covenant to Repay and to Pay Interest on Master Issuer Notes..........3
3. Form and Issue of Master Issuer Notes.................................7
4. Replacement of Master Issuer Notes....................................9
5. Register, Transfer and Exchange of Master Issuer Notes................9
6. Fees, Duties and Taxes...............................................15
7. Covenant of Compliance...............................................15
8. Cancellation of Master Issuer Notes and Records......................16
9. Enforcement..........................................................16
10. Proceedings, Actions and Indemnification.............................17
11. Discharge of Payment.................................................18
12. Investment by Note Trustee...........................................18
13. Partial Payments.....................................................19
14. Covenants by the Master Issuer.......................................19
15. Remuneration and Indemnification of the Note Trustee.................24
16. Supplement to Trustee Acts...........................................26
17. Note Trustee's Liability.............................................34
18. Note Trustee Contracting with the Master Issuer......................34
19. Waiver, Authorisation and Determination..............................35
20. Entitlement to Treat Noteholder as Absolute Owner....................40
21. Currency Indemnity...................................................40
22. Eligibility and Disqualification; New Note Trustee...................41
23. Note Trustee's Retirement and Removal................................42
24. Note Trustee's Powers to be Additional...............................42
25. Notices..............................................................42
26. Rights of Third Parties..............................................43
27. Certificates and Opinions............................................43
28. Release of Collateral................................................44
29. Governing Law........................................................45
30. Counterparts.........................................................45
31. Submission to Jurisdiction...........................................45
32. Trust Indenture Act Prevails.........................................45
SCHEDULE
1. Forms of Global Master Issuer Notes..................................46
2. Form of Definitive Notes.............................................53
3. Form of Transfer Certificates........................................58
4. Terms and Conditions of the Master Issuer Notes......................61
5. Provisions for Meetings of Noteholders...............................62
SIGNATORIES
Signatories...................................................................75
APPENDIX
1. Servicing criteria to be addressed in Report on Assessment of
Compliance...........................................................76
THIS AMENDED AND RESTATED MASTER ISSUER TRUST DEED is made on 28 March 2007
BETWEEN:
(1) ▇▇▇▇▇▇ MASTER ISSUER PLC (registered number 5953811) whose registered
office is at Abbey National House, 2 Triton Square, Regent's Place,
London NW1 3AN (the MASTER ISSUER); and
(2) THE BANK OF NEW YORK, LONDON BRANCH a New York banking corporation
whose London branch address is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its capacity as NOTE TRUSTEE, which
expression shall include such company and all other persons and
companies for the time being acting as note trustee under this Deed).
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Master
Issuer passed on 16 November 2006, the Master Issuer resolved to
establish the Programme pursuant to which the Master Issuer may from
time to time issue Notes as set out herein.
(B) In connection with the Programme, the Master Issuer and the Note
Trustee entered into a Master Issuer Trust Deed on 28 November 2006
whereby the Note Trustee agreed to act as trustee for the benefit of
the Noteholders upon and subject to the terms and conditions of that
Deed.
(C) By a resolution of a duly authorised Board of Directors of the Master
Issuer passed on 27 March 2007, the Master Issuer has resolved, and
the Note Trustee has agreed, to amend and restate the Master Issuer
Trust Deed dated 28 November 2006 on the terms set out herein.
NOW THIS MASTER ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. DEFINITIONS
1.1 The Further Amended and Restated Master Definitions and Construction
Schedule and the Amended and Restated Master Issuer Master Definitions
and Construction Schedule, both signed for the purposes of
identification by ▇▇▇▇▇ & Overy LLP and ▇▇▇▇▇▇▇▇▇ and May on 28 March
2007 (as the same may be amended, varied or supplemented from time to
time in accordance with the terms thereof) are expressly and
specifically incorporated into this Deed and, accordingly, the
expressions defined in the Further Amended and Restated Master
Definitions and Construction Schedule and the Amended and Restated
Master 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, including the
Recitals hereto, and this Deed shall be construed in accordance with
the interpretation provisions set out in Clause 2 of the Further
Amended and Restated Master Definitions and Construction Schedule and
Clause 2 of the Amended and Restated Master Issuer Master Definitions
and Construction Schedule. In the event of a conflict between the
Further Amended and Restated Master Definitions and Construction
Schedule and the Amended and Restated Master Issuer Master Definitions
and Construction Schedule, the Amended and Restated Master Issuer
Master Definitions Schedule shall prevail.
1.2 (a) All references in these presents to principal and/or premium
and/or interest in respect of the Master Issuer Notes or to
any monies payable by the Master Issuer under these
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presents shall be deemed to include a reference to any
Additional Interest which may be payable under Condition 4.4
or, if applicable, under any undertaking or covenant given
pursuant to sub-clause 2.2.
(b) All references in these presents to [POUND], STERLING or
POUNDS STERLING shall be construed as references to the lawful
currency or currency unit for the time being of the United
Kingdom of Great Britain and Northern Ireland. All references
to [EURO], EUR, EURO or EURO shall be construed as references
to the single currency introduced at the third stage of
European Economic and Monetary Union pursuant to the Treaty
establishing the European Communities as amended from time to
time. All references to $, U.S.$ or U.S. DOLLARS shall be
construed as references to the lawful currency or currency
unit for the time being of the United States of America.
(c) All references in this Deed to these presents means this Deed,
the schedules hereto, the Master Issuer Notes, the Conditions,
any deed expressed to be supplemental hereto or thereto and
the schedules (if any) and the Master Issuer Deed of Charge
and the schedules thereto, all as from time to time
supplemented or modified in accordance with the provisions
contained in this Deed and/or where applicable, therein
contained.
(d) All references in these presents to guarantees or to an
obligation being guaranteed shall be deemed to include
respectively references to indemnities or to an indemnity
being given in respect thereof.
(e) All references in these presents to any action, remedy or
method of proceeding for the enforcement of the rights of
creditors shall be deemed to include, in respect of any
jurisdiction other than England, references to such action,
remedy or method of proceeding for the enforcement of the
rights of creditors available or appropriate in such
jurisdiction as shall most nearly approximate to such action,
remedy or method of proceeding described or referred to in
these presents.
(f) All references in these presents to taking proceedings against
the Master Issuer shall be deemed to include references to
proving in the winding up of the Master Issuer.
(g) All references in these presents to DTC, Euroclear and
Clearstream, Luxembourg, shall be deemed to include references
to any other or additional clearing system as may be approved
in writing by the Note Trustee or as may otherwise be
specified in the applicable Final Terms.
(h) Unless the context otherwise requires words or expressions
used in these presents shall bear the same meanings as in the
Companies ▇▇▇ ▇▇▇▇.
(i) Wherever in this Deed there is a requirement for the consent
of, or a request or direction from, the Noteholders, then, for
so long as any of the Master Issuer Notes is represented by a
Global Master Issuer Note registered in the name of DTC or its
nominee, DTC may mail an Omnibus Proxy to the Master Issuer in
accordance with and in the form used by DTC as part of its
usual procedures from time to time. Such Omnibus Proxy shall
assign the right to give such consent or, as the case may be,
make such request or direction to DTC's direct participants as
of the record date specified therein and any such assignee
participant may give the relevant consent or, as the case may
be, make the relevant request or direction in accordance with
this Deed.
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(j) Wherever this Deed refers to a provision of the Trust
Indenture Act, the provision shall be incorporated by
reference in and made part of this Deed. All terms used in
this Deed which are defined in the Trust Indenture Act by
reference to another statute or defined by an SEC rule shall
have the meanings assigned to them in the Trust Indenture Act.
2. COVENANT TO REPAY AND TO PAY INTEREST ON MASTER ISSUER NOTES
2.1 The Master Issuer Notes will be issued in Series and Classes (or
Sub-Classes). Each Series will comprise one or more Class A Master
Issuer Notes and/or Class B Master Issuer Notes and/or Class M Master
Issuer Notes and/or Class C Master Issuer Notes and/or Class D Master
Issuer Notes issued on the relevant Closing Date.
By not later than 5.00 p.m. (London time) on the second London
Business Day preceding each proposed Closing Date, the Master Issuer
shall deliver or cause to be delivered to the Note Trustee a copy of
the applicable Final Terms and drafts of all legal opinions to be
given in relation to the relevant Issue and shall notify the Note
Trustee in writing without delay of the relevant Closing Date and the
nominal amount of the Master Issuer Notes to be issued. Upon the issue
and authentication of the relevant Master Issuer Notes, such Master
Issuer Notes shall become constituted by these presents without
further formality.
Before the first issue of Master Issuer Notes occurring after each
anniversary of this Master Issuer Trust Deed and on such other
occasions as the Note Trustee so requests (on the basis that the Note
Trustee considers it necessary in view of a change (or a proposed
change which is reasonably likely to result in an actual change) in
English law affecting the Master Issuer, these presents, the Programme
Agreement or the Master Issuer Paying Agent and Agent Bank Agreement
or the Note Trustee has other grounds), the Master Issuer will procure
that (a) further legal opinion(s) (relating, if applicable, to any
such change or proposed change) in such form and with such content as
the Note Trustee may require from the legal advisers specified in the
Programme Agreement or such other legal advisers as the Note Trustee
may require is/are delivered to the Note Trustee. Whenever such a
request is made with respect to any Master Issuer Notes to be issued,
the receipt of such opinion in a form satisfactory to the Note Trustee
shall be a further condition precedent to the issue of those Master
Issuer Notes.
2.2 The Master Issuer covenants with the Note Trustee that it will, as and
when the Master Issuer Notes of any Series and Class (or Sub-Class) or
any instalment of principal in respect thereof becomes due to be
redeemed, or on such earlier date as the same or any part thereof may
become due and repayable thereunder, in accordance with the
Conditions, unconditionally pay or procure to be paid to or to the
order of the Note Trustee in the Specified Currency, in London, New
York City or the Principal Financial Centre of the country of the
relevant specified currency, as applicable, in immediately available
funds the principal amount of such Series and Class (or Sub-Class) or
the amount of such instalment becoming due for redemption on that date
and (except in the case of Zero Coupon Notes) shall in the meantime
and until redemption in full of such Series and Class (or Sub-Class)
of the Master Issuer Notes (both before and after any judgment or
other order of a court of competent jurisdiction) unconditionally pay
or procure to be paid to or to the order of the Note Trustee as
aforesaid interest (which shall accrue from day to day) on the
Principal Amount Outstanding of such Series and Class (or Sub-Class)
of the Master Issuer Notes outstanding at the rates set out in or (as
the case may be) calculated from time to time in accordance with
Condition 4 and on the dates provided for in the Conditions PROVIDED
THAT:
(a) every payment of principal or interest in respect of the
Master Issuer Notes to or to the account of the Principal
Paying Agent, in the manner provided in the Master Issuer
Paying Agent and Agent Bank Agreement, shall operate in
satisfaction pro
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tanto of the relative covenant by the Master Issuer in
sub-clause 2.2 contained in relation to such Series and Class
(or Sub-Class) of the Master Issuer Notes except to the extent
that there is default in the subsequent payment thereof in
accordance with the Conditions to the relevant Noteholders;
(b) in any case where payment of principal is not made to the Note
Trustee or the Principal Paying Agent, as applicable, on or
before the due date, interest shall continue to accrue on the
principal amount of such Series and Class (or Sub-Class) of
the Master Issuer Notes (except in the case of Zero Coupon
Notes) (both before and after any judgment or other order of a
court of competent jurisdiction) at the rates aforesaid (or,
if higher, the rate of interest on judgment debts for the time
being provided by English law) up to and including the date
which the Note Trustee determines to be the date on and after
which payment is to be made to the Noteholders in respect
thereof as stated in a notice given to the Noteholders in
accordance with Condition 14 (such date to be not later than
30 days after the day on which the whole of such principal
amount, together with an amount equal to the interest which
has accrued and is to accrue pursuant to this proviso up to
and including that date, has been received by the Note Trustee
or the Principal Paying Agent, as applicable);
(c) in any case where payment of the whole or any part of the
principal amount of any Master Issuer Note is improperly
withheld or refused upon due presentation thereof (other than
in circumstances contemplated by proviso (b) above) interest
shall accrue on that principal amount of such Master Issuer
Note (except in the case of any Zero Coupon Note) payment of
which has been so withheld or refused (both before and after
any judgment or other order of a court of competent
jurisdiction) at the rates aforesaid (or, if higher, the rate
of interest on judgment debts for the time being provided by
English law) from and including the date of such withholding
or refusal up to and including the date on which, upon further
presentation of such Master Issuer Note, payment of the full
amount (including interest as aforesaid) in the Specified
Currency payable in respect of such Master Issuer Note is made
or (if earlier) the day after notice is given to the relevant
Noteholder (either individually or in accordance with
Condition 14 that the full amount (including interest as
aforesaid) in the Specified Currency payable in respect of
such Master Issuer Note is available for payment, provided
that, upon further presentation thereof being duly made, such
payment is made; and
(d) notwithstanding any other provision of this Deed, the right of
any Noteholder to receive payment of principal and interest on
the Master Issuer Notes, on or after the respective due dates
expressed in the Master Issuer Notes, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent
of such Noteholder.
The Master Issuer shall pay additional interest in accordance with
Condition 4.4.
The Note Trustee will hold the benefit of the covenants contained in
this Clause on trust for the Noteholders and itself in accordance with
this Deed.
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2.3 At any time after a Note Event of Default shall have occurred or the
Master Issuer Notes or any of them shall otherwise have become due and
repayable or Definitive Notes have not been issued when so required in
accordance with this Deed and the relative Global Master Issuer Notes,
the Note Trustee may and shall, if directed by an Extraordinary
Resolution of the Noteholders and subject to it being indemnified
and/or secured to its satisfaction:
(a) by notice in writing to the Master Issuer, the Principal
Paying Agent, the U.S. Paying Agent, the Transfer Agent and
the Registrar require the Principal Paying Agent, the U.S.
Paying Agent, the Transfer Agent and the Registrar pursuant to
the Master Issuer Paying Agent and Agent Bank Agreement to:
(i) act thereafter as Principal Paying Agent, U.S. Paying
Agent, Transfer Agent and Registrar respectively of
the Note Trustee in relation to payments to be made by
or on behalf of the Note Trustee under the provisions
of this Deed mutatis mutandis on the terms provided in
the Master Issuer Paying Agent and Agent Bank
Agreement respectively (save that the Note Trustee's
liability under any provisions thereof for the
indemnification, remuneration and payment of
out-of-pocket expenses of the Paying Agents, the
Transfer Agent and the Registrar shall be limited to
the amounts for the time being held by the Note
Trustee on the trusts of these presents relating to
the Master Issuer Notes and available for such
purpose) and thereafter to hold all Master Issuer
Notes and all sums, documents and records held by them
in respect of the Master Issuer Notes on behalf of the
Note Trustee; or
(ii) deliver up all Master Issuer Notes and all sums,
documents and records held by them in respect of the
Master Issuer Notes to the Note Trustee or as the Note
Trustee shall direct in such notice provided that such
notice shall be deemed not to apply to any documents
or records which the relevant Paying Agent or the
Transfer Agent or the Registrar, as the case may be,
is obliged not to release by any law or regulation;
and/or
(b) by notice in writing to the Master Issuer require it to make
all subsequent payments in respect of the Master Issuer Notes
to or to the order of the Note Trustee and not to the
Principal Paying Agent; with effect from the issue of any such
notice to the Master Issuer and until such notice is withdrawn
sub-clause 2.2(a) relating to the Master Issuer Notes shall
cease to have effect.
2.4 The Master Issuer shall require each paying agent not a party to the
Master Issuer Paying Agent and Agent Bank Agreement to agree in
writing to hold in trust for the benefit of the Noteholders or the
Note Trustee all money held by such paying agent for the payment of
principal of or interest on the Master Issuer Notes (whether such
money has been paid to it by the Master Issuer or any other obligor of
the Master Issuer Notes), and the Master Issuer and such paying agent
shall each notify the Note Trustee of any default by the Master Issuer
(or any other obligor of the Master Issuer Notes) in making any such
payment.
2.5 All payments in respect of, under and in connection with these
presents and any Series and Class (or Sub-Class) of the Master Issuer
Notes to the relevant Noteholders shall be made in the relevant
Specified Currency.
2.6 The Master Issuer shall be at liberty from time to time (but subject
always to the provisions of these presents and satisfaction of the
requirements set out in sub-clause 2.7) without the consent of the
Noteholders to create and issue Master Issuer Notes having terms and
conditions the same as any Series and Class (or Sub-Class) of the
Master Issuer Notes (or the same in all respects save for the amount
and date of the first payment of interest thereon) and
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so that the same shall be consolidated and form a single series with
the outstanding Master Issuer Notes of a particular Series and Class
(or Sub-Class).
2.7 The Master Issuer may, without the consent of the Noteholders, raise
funds, from time to time, on any date (each a CLOSING DATE) by the
creation and issue of a Series comprising one or more Classes of Class
A Master Issuer Notes and/or Class B Master Issuer Notes and/or Class
M Master Issuer Notes and/or Class C Master Issuer Notes and/or Class
D Master Issuer Notes, provided that:
(a) the Rating Agencies confirm in writing that each Class of
Master Issuer Notes then outstanding will not be downgraded,
withdrawn or qualified by the Rating Agencies as a result of
the issue of such Series of Master Issuer Notes, and the
implicit ratings of the Master Issuer Term Advances
outstanding at that time, will not be downgraded, withdrawn or
qualified because of the issue;
(b) no Note Enforcement Notice has as at the applicable Closing
Date been served on the Issuer;
(c) as at the most recent Interest Payment Date, there is no debit
balance (which remains outstanding) on the Principal
Deficiency Ledger in respect of any Term Advance outstanding
at that time;
(d) on the applicable Closing Date and after giving effect to the
issuance of such Series of Master Issuer Notes on such Closing
Date, the Class A Available Subordinated Amount is equal to or
greater than the Class A Required Subordinated Amount;
(e) on the applicable Closing Date and after giving effect to the
issuance of such Series of Master Issuer Notes on such Closing
Date, the Class B Available Subordinated Amount is equal to or
greater than the Class B Required Subordinated Amount;
(f) on the applicable Closing Date and after giving effect to the
issuance of such Series of Master Issuer Notes on such Closing
Date, the Class M Available Subordinated Amount is equal to or
greater than the Class M Required Subordinated Amount; and
(g) on the applicable Closing Date and after giving effect to the
issuance of such Series of Master Issuer Notes on such Closing
Date, the Class C Available Subordinated Amount is equal to or
greater than the Class C Required Subordinated Amount,
provided that, in respect of any such issuance of a Series of Master
Issuer Notes, such conditions shall be waived by the Note Trustee if
(i) requested by the Master Issuer; and (ii) the Note Trustee has
received confirmation from the Rating Agencies that such waiver will
not result in a downgrading, qualification or withdrawal of the
ratings of any Class of Master Issuer Notes outstanding as at the
applicable Closing Date.
2.8 The Master Issuer Notes of each Series shall form a separate Series of
Master Issuer Notes and accordingly, unless for any purpose the Note
Trustee in its absolute discretion shall otherwise determine, the
provisions of this Clause, Clauses 3 to 19 (both inclusive),
sub-clause 22.3 and Schedule 3 hereto shall apply mutatis mutandis
separately and independently to the Master Issuer Notes of each Series
and in such Clauses and Schedule the expressions Master Issuer Notes
and Noteholders shall (where appropriate) be construed accordingly.
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3. FORM AND ISSUE OF MASTER ISSUER NOTES
3.1 (a) Each Series and Class (or Sub-Class) of the SEC-Registered
Master Issuer Notes will be initially offered and sold to the
public in the United States pursuant to a Registration
Statement filed with the SEC. Each Series and Class (or
Sub-Class) of SEC-Registered Master Issuer Notes will
initially be represented by a separate SEC-Registered Global
Master Issuer Note in registered form, in each case without
coupons or talons attached and which, in aggregate, will
represent the aggregate Principal Amount Outstanding of such
SEC-Registered Master Issuer Notes.
(b) Each Series and Class (or Sub-Class) of the Rule 144A Master
Issuer Notes will be initially offered and sold in the United
States to "qualified institutional buyers" (QIBS) pursuant to
Rule 144A (RULE 144A) under the United States Securities Act
of 1933, as amended (the SECURITIES ACT). Each Series and
Class (or Sub-Class) of the Rule 144A Master Issuer Notes will
initially be represented by a separate Rule 144A Global Master
Issuer Note in registered form, in each case without coupons
or talons attached and which, in aggregate, will represent the
aggregate Principal Amount Outstanding of such Rule 144A
Master Issuer Notes.
(c) Each Series and Class (or Sub-Class) of the Reg S Master
Issuer Notes will be initially offered and sold outside the
United States to non-U.S. persons pursuant to Regulation S
(REG S) under the Securities Act. Each Series and Class (or
Sub-Class) of Reg S Master Issuer Notes will initially be
represented by a Reg S Global Master Issuer Note in registered
form, in each case without coupons or talons attached and
which, in aggregate, will represent the aggregate Principal
Amount Outstanding of such Reg S Master Issuer Notes.
(d) The Note Trustee shall be deemed to approve the issuance of
such Series and Class (or Sub-Class) of Master Issuer Notes as
referred to in subclauses 3.1(a), 3.1(b) and 3.1(c) above if
it has not objected to any of the terms thereof within two
London Business Days of receipt by the Note Trustee of the
notification as referred to in sub-clause 14(gg) below.
3.2 The Global Master Issuer Notes shall be printed or typed in, or
substantially in, the form set out in Schedule 1 and may be executed
manually or in facsimile, which the Master Issuer shall deposit with
the DTC Custodian or the Common Depositary, as the case may be. Each
Global Master Issuer Note shall represent such of the outstanding
Master Issuer Notes of the relevant Series and Class (or Sub-Class) as
shall be specified therein and each shall provide that it shall
represent the aggregate Principal Amount Outstanding of the relevant
Series and Class (or Sub-Class) of Master Issuer Notes from time to
time endorsed thereon and that the aggregate Principal Amount
Outstanding of the Master Issuer Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect
exchanges, redemptions, purchases, cancellations and transfers of
interests therein in accordance with the terms of this Deed and the
Master Issuer Paying Agent and Agent Bank Agreement. Any endorsement
of a Global Master Issuer Note to reflect the amount of any increase
or decrease in the Principal Amount Outstanding of any Series and
Class (or Sub-Class) of Master Issuer Notes represented thereby shall
be made by the Registrar in accordance with Clause 5. Title to the
Global Master Issuer Notes shall pass by and upon the registration in
the Register in respect thereof in accordance with the provisions of
these presents. The Global Master Issuer Notes shall be issuable only
in registered form without coupons or talons attached and signed
manually or in facsimile by a person duly authorised by the Master
Issuer on behalf of the Master Issuer and shall be authenticated by or
on behalf of the Principal Paying Agent. The Global Master Issuer
Notes so executed and authenticated shall be binding and valid
obligations of the Master Issuer, notwithstanding that such duly
authorised person (for
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whatever reason) no longer holds that office at the time the Principal
Paying Agent authenticates the relevant Global Master Issuer Note.
3.3 The Global Master Issuer Notes shall be issued by the Master Issuer to
Cede & Co., as nominee on behalf of DTC, in respect of each U.S.
Global Master Issuer Note and to The Bank of New York (Depository)
Nominees Limited, as nominee for the Common Depositary, in respect of
each Reg S Global Master Issuer Note, on terms that Cede & Co. and the
Common Depositary shall, respectively, hold the same for the account
of the persons who would otherwise be entitled to receive the
Definitive Notes and the successors in title to such persons appearing
in the records of DTC, Euroclear and Clearstream, Luxembourg for the
time being. Upon the issuance of each such Global Master Issuer Notes
to Cede & Co. and the Common Depositary, DTC, Euroclear and
Clearstream, Luxembourg shall credit, on their respective internal
book-entry registration and transfer systems, the accounts of holders
of Book-Entry Interests with the respective interests owned by such
holders.
3.4 The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Clearstream, Luxembourg" and "Customer
Handbook" of Clearstream, Luxembourg shall be applicable to interests
in the Reg S Global Master Issuer Notes that are held through
Euroclear and Clearstream, Luxembourg.
3.5 The Master Issuer shall issue Definitive Notes in accordance with
sub-clause 3.6 only if any of the following applies while any Series
and Class (or Sub-Class) of Master Issuer Notes are represented by a
Global Master Issuer Note at any time after the 40th day following the
later of the date of the issue of such Global Master Issuer Note and
the commencement of the offering of the relevant Master Issuer Notes:
(a) (in the case of any U.S. Global Master Issuer Notes) DTC has
notified the Master Issuer that it is at any time unwilling or
unable to continue as the registered holder of such U.S.
Global Master Issuer Notes or is at any time unwilling or
unable to continue as, or ceases to be, a clearing agency
registered under the Exchange Act, and a successor to DTC
registered as a clearing agency under the Exchange Act is not
able to be appointed by the Master Issuer within 90 days of
such notification, or (in the case of the Reg S Global Master
Issuer Notes) both Euroclear and Clearstream, Luxembourg are
closed for business for a continuous period of 14 days (other
than by reason of holiday, statutory or otherwise) or announce
an intention permanently to cease business and do so cease to
do business and no alternative clearing system satisfactory to
the Note Trustee is available; and
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax or in the interpretation or administration
by a revenue authority or a court or administration of such
laws or regulations which becomes effective on or after the
date of issue of such Global Master Issuer Note, the Master
Issuer or any Paying Agent is or will be required to make any
deduction or withholding from any payment in respect of such
Master Issuer Notes which would not be required were the
Master Issuer Notes in definitive form.
3.6 If required by sub-clause 3.5, the Master Issuer shall, at its sole
cost and expense within 30 days of the occurrence of the relevant
event referred to in sub-clause 3.5(a) or (b), issue Definitive Notes
of the same class as the Series and Class (or Sub-Class) of Master
Issuer Notes represented by the relevant Global Master Issuer Note in
exchange for the whole (or the remaining part(s) outstanding) of the
relevant Global Master Issuer Note. If Definitive Notes are issued,
the beneficial interests represented by the U.S. Global Master Issuer
Notes of each
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Series and Class (or Sub-Class) shall be exchanged by the Master
Issuer for Definitive Notes of that Series and Class (or Sub-Class)
(such exchanged U.S. Global Master Issuer Notes, the U.S. DEFINITIVE
MASTER ISSUER NOTES) and the beneficial interests represented by the
Reg S Global Master Issuer Note of each Series and Class (or
Sub-Class) denominated in Sterling or Euro shall be exchanged by the
Master Issuer for Definitive Notes of that Series and Class (or
Sub-Class) (such exchanged Reg S Global Master Issuer Notes, the REG S
DEFINITIVE NOTES). The Definitive Notes shall be printed or typed in,
or substantially in, the form set out in Schedule 2 in the
denomination and transferable in units specified for such notes in the
applicable Final Terms, shall be serially numbered and shall be
endorsed with a form of transfer in the form, or substantially in the
form, also set out in Schedule 2. Title to the Definitive Notes shall
pass by and upon the registration in the Register in respect thereof
in accordance with the provisions of these presents. The Definitive
Notes shall be issuable only in registered form without coupons or
talons attached and signed manually or in facsimile by a person duly
authorised by or on behalf of the Master Issuer and shall be
authenticated by or on behalf of the Principal Paying Agent. Each
Master Issuer Note so executed and authenticated shall be a binding
and valid obligation of the Master Issuer, notwithstanding that such
duly authorised person (for whatever reason) no longer holds that
office at the time the Principal Paying Agent authenticates the Note.
3.7 If the Master Issuer is obliged to issue or procure the issue of any
Definitive Notes pursuant to sub-clause 3.6 but fails to do so within
30 days of the occurrence of the relevant event referred to in
sub-clause 3.5(a) or (b), then the Master Issuer shall indemnify the
Note Trustee, the registered holder of the relevant Global Master
Issuer Note(s) and the relevant Noteholders and keep them indemnified
against any and all loss or damage incurred by any of them if the
amount received by the Note Trustee, the registered holder of such
Global Master Issuer Note(s) or the relevant Noteholders in respect of
the Master Issuer Notes is less than the amount that would have been
received had Definitive Notes been issued in accordance with
sub-clause 3.6. If and for so long as the Master Issuer discharges its
obligations under this indemnity, the breach by the Master Issuer of
the provisions of sub-clause 3.6 shall be deemed to be cured ab
initio.
4. REPLACEMENT OF MASTER ISSUER NOTES
If a mutilated or defaced Global Master Issuer Note or Definitive Note
is surrendered to the Registrar or Transfer Agent or the Principal
Paying Agent, if a Noteholder claims that a Global Master Issuer Note
or Definitive Note has been lost, stolen or destroyed, the Master
Issuer shall issue, and the Principal Paying Agent shall authenticate,
a replacement Global Master Issuer Note or Definitive Note,
respectively, on receipt of satisfactory evidence in accordance with
Condition 13. An indemnity for an amount sufficient in the judgement
of the Master Issuer and (in the case of a Definitive Note) the
Registrar and (in the case of a Global Master Issuer Note) the
Principal Paying Agent to protect the Master Issuer and (in the case
of a Definitive Note) the Registrar and (in the case of a Global
Master Issuer Note) the Principal Paying Agent from any loss which any
of them may suffer if a Global Master Issuer Note or a Definitive Note
is replaced may be required by the Master Issuer and (in the case of a
Definitive Note) the Registrar and (in the case of a Global Master
Issuer Note) the Principal Paying Agent. The Master Issuer may charge
such Noteholder for its costs in replacing such Master Issuer Note.
5. REGISTER, TRANSFER AND EXCHANGE OF MASTER ISSUER NOTES
5.1 TRANSFER AND EXCHANGE OF GLOBAL MASTER ISSUER NOTES
A Global Master Issuer Note will be exchanged by the Master Issuer for
another Global Master Issuer Note or Definitive Note(s) only in the
circumstances set forth in sub-clause 3.5,
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the Conditions, the Master Issuer Paying Agent and Agent Bank
Agreement and the relevant Global Master Issuer Note. Upon the
occurrence of any of the events specified therein concerning the
exchange of a Global Master Issuer Note for Definitive Notes,
Definitive Notes of the relevant Series and Class (or Sub-Class) shall
be issued in such names as the Master Issuer shall instruct the
Registrar (based on the instructions of DTC and Euroclear and
Clearstream, Luxembourg) and the Registrar shall cause the Principal
Amount Outstanding of the applicable Global Master Issuer Note to be
reduced accordingly, cancel such Global Master Issuer Note (if
applicable) and direct DTC and Euroclear and Clearstream, Luxembourg
to make corresponding reductions in their book-entry systems, and the
Master Issuer shall execute and the Principal Paying Agent shall
authenticate such Definitive Notes of the relevant Series and Class
(or Sub-Class) in the appropriate principal amounts and the Registrar
will register them. The Registrar shall deliver such Definitive Notes
to the persons in whose names such Notes are so registered. Reg S
Definitive Notes issued in exchange for a Book-Entry Interest pursuant
to sub-clause 5.1 shall bear the legend set forth in sub-clause
5.4(b), and shall be subject to all restrictions on transfer contained
therein to the same extent as the Global Master Issuer Note so
exchanged. Global Master Issuer Notes may also be exchanged or
replaced, in whole or in part, mutatis mutandis, as provided in Clause
4. Every Master Issuer Note executed, authenticated and delivered in
exchange for, or in lieu of, a Global Master Issuer Note or any
portion thereof, pursuant to Clause 4 hereof, shall be executed,
authenticated and delivered in the form of, and shall be, a Global
Master Issuer Note. A Global Master Issuer Note may not be exchanged
for another Master Issuer Note other than as provided in sub-clause
5.1.
Notwithstanding any other provisions of this Master Issuer Trust Deed
or the Master Issuer Notes, transfers and exchanges of interests in
Global Master Issuer Notes shall be made only in accordance with the
following provisions:
(a) TRANSFERS FROM A RULE 144A GLOBAL MASTER ISSUER NOTE TO A REG
S GLOBAL MASTER ISSUER NOTE. If the holder of a beneficial
interest in a Rule 144A Global Master Issuer Note of one
Series or Class (or Sub-Class) wishes at any time to transfer
such interest to a person who wishes to take delivery thereof
in the form of a beneficial interest in the Reg S Global
Master Issuer Note of the same Series and Class (or Sub-Class)
such transfer may be effected, subject to the rules and
procedures of DTC, Euroclear and Clearstream, Luxembourg, to
the extent applicable (the APPLICABLE PROCEDURES) by the
transferor giving a certificate to the Registrar in, or
substantially in, the form set out in PART I of SCHEDULE 3
hereto. Upon receipt by the Registrar of the relevant
certificate given by the transferor, the Registrar shall
present the Global Master Issuer Note of the relevant Series
and Class (or Sub-Class) to, or to the order of, the relevant
Paying Agent which shall reduce the Principal Amount
Outstanding of such Rule 144A Global Master Issuer Note and
increase the Principal Amount Outstanding of the corresponding
Reg S Global Master Issuer Note by the principal amount of the
beneficial interest in such Rule 144A Global Master Issuer
Note to be transferred, by annotation thereon.
(b) TRANSFERS FROM A REG S GLOBAL MASTER ISSUER NOTE TO A RULE
144A GLOBAL MASTER ISSUER NOTE DURING THE DISTRIBUTION
COMPLIANCE PERIOD. If the holder of a beneficial interest in a
Reg S Global Master Issuer Note of one Series and Class (or
Sub-Class) wishes at any time during the Distribution
Compliance Period to transfer such interest to a person who
wishes to take delivery thereof in the form of a beneficial
interest in the Rule 144A Global Master Issuer Note of the
same Series and Class (or Sub-Class), such transfer may be
effected, subject to the Applicable Procedures, by the
transferor giving a certificate to the Registrar in, or
substantially in, the form set out in PART II of SCHEDULE 3
hereto. Upon receipt by the Registrar of
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the relevant certificate given by the transferor, the
Registrar shall present the Global Master Issuer Note of the
relevant Series and Class (or Sub-Class) to, or to the order
of, the relevant Paying Agent which shall reduce the Principal
Amount Outstanding of such Reg S Global Master Issuer Note and
increase the Principal Amount Outstanding of such Rule 144A
Global Master Issuer Note by the principal amount of the
beneficial interest in such Reg S Global Master Issuer Note to
be so transferred, by annotation thereon.
(c) TRANSFERS FROM A REG S GLOBAL MASTER ISSUER NOTE TO A RULE
144A GLOBAL MASTER ISSUER NOTE AFTER THE DISTRIBUTION
COMPLIANCE PERIOD. If the holder of a beneficial interest in a
Reg S Global Master Issuer Note of one Series and Class (or
Sub-Class) wishes at any time after the Distribution
Compliance Period to transfer such interest to a person who
wishes to take delivery thereof in the form of a beneficial
interest in the Rule 144A Global Master Issuer Note of the
same Series and Class (or Sub-Class), such transfer may be
effected subject only to the Applicable Procedures. The
Registrar shall present the Global Master Issuer Note of the
relevant Series and Class (or Sub-Class) to, or to the order
of, the relevant Paying Agent which shall reduce the Principal
Amount Outstanding of such Reg S Global Master Issuer Note and
increase the Principal Amount Outstanding of such Rule 144A
Global Master Issuer Note by the principal amount of the
beneficial interest in such Reg S Global Master Issuer Note to
be so transferred, by annotation thereon.
(d) EXCHANGES OF A RULE 144A GLOBAL MASTER ISSUER NOTE FOR A REG S
GLOBAL MASTER ISSUER NOTE. If the holder of a beneficial
interest in a Rule 144A Global Master Issuer Note of one
Series and Class (or Sub-Class) wishes at any time to exchange
such interest for a beneficial interest in the Reg S Global
Master Issuer Note of the same Series and Class (or
Sub-Class), such exchange may be effected, subject to the
Applicable Procedures, by the transferor giving a certificate
to the Registrar in, or substantially in, the form set out in
PART I of SCHEDULE 3 hereto. Upon receipt by the Registrar of
the relevant certificate given by the holder of the beneficial
interest, the Registrar shall present the Global Master Issuer
Note of the relevant Series and Class (or Sub-Class) to, or to
the order of, the relevant Paying Agent which shall reduce the
Principal Amount Outstanding of such Rule 144A Global Master
Issuer Note and increase the Principal Amount Outstanding of
the corresponding Reg S Global Master Issuer Note by the
principal amount of the beneficial interest in such Rule 144A
Global Master Issuer Note to be so exchanged, by annotation
thereon.
(e) EXCHANGES OF A REG S GLOBAL MASTER ISSUER NOTE FOR A RULE 144A
GLOBAL MASTER ISSUER NOTE. If the holder of a beneficial
interest in a Reg S Global Master Issuer Note of one Series
and Class (or Sub-Class) wishes at any time to exchange such
interest for a beneficial interest in the Rule 144A Global
Master Issuer Note of the same Series and Class (or
Sub-Class), such exchange may be effected, subject to the
Applicable Procedures, by the transferor giving a certificate
to the Registrar in, or substantially in, the form set out in
PART II of SCHEDULE 3 hereto. Upon receipt by the Registrar of
the relevant certificate given by the holder of the beneficial
interest, the Registrar shall present the Global Master Issuer
Note of the relevant Series and Class (or Sub-Class) to, or to
the order of, the relevant Paying Agent which shall reduce the
Principal Amount Outstanding of such Reg S Global Master
Issuer Note and increase the Principal Amount Outstanding of
the corresponding Rule 144A Global Master Issuer Note by the
principal amount of the beneficial interest in such Reg S
Global Master Issuer Note to be so exchanged, by annotation
thereon.
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5.2 TRANSFER AND EXCHANGE OF BOOK-ENTRY INTERESTS
The transfer and exchange of Book-Entry Interests shall be effected
through DTC, Euroclear and/or Clearstream, Luxembourg, as the case may
be, in accordance with these presents, the Master Issuer Paying Agent
and Agent Bank Agreement and the procedures therefor of DTC, Euroclear
and/or Clearstream, Luxembourg, as the case may be. Book-Entry
Interests shall be subject to restrictions on transfer comparable to
those set forth herein and in the Master Issuer Paying Agent and Agent
Bank Agreement to the extent required by the Securities Act. The Note
Trustee shall have no obligation to ascertain or to monitor DTC's,
Euroclear's or Clearstream, Luxembourg's compliance with any such
restrictions on transfer.
5.3 TRANSFER OF DEFINITIVE NOTES
Definitive Notes may be transferred in whole or in part (provided that
any partial transfer relates to a Definitive Note) in the principal
amount specified in the applicable Final Terms or, in each case, in
such other denominations as the Note Trustee shall determine and
notify to the relevant Noteholders. When Definitive Notes are
presented by a Noteholder to the Registrar with a request to register
the transfer of such Definitive Notes, the Registrar shall register
the transfer as requested only if such Definitive Notes are presented
or surrendered for registration of transfer and are endorsed or
accompanied by a written instrument of transfer in form satisfactory
to the Registrar duly executed by such Noteholder or by his attorney
duly authorised in writing and upon receipt of such certificates and
other documents as shall be necessary to evidence compliance with the
restrictions on transfer contained in these presents and in the Master
Issuer Paying Agent and Agent Bank Agreement. Thereupon, the Registrar
shall request the Master Issuer to issue and the Principal Paying
Agent to authenticate the new Definitive Notes required to be issued
in connection with such transfer. In the case of a transfer of part
only of such Definitive Master Issuer Note, a new Definitive Note in
respect of the balance not transferred will be issued to the
transferor. All transfers of Definitive Notes are subject to any
restrictions on transfer set forth on such Definitive Notes and the
detailed regulations concerning transfers in the Master Issuer Paying
Agent and Agent Bank Agreement.
5.4 UNITED STATES TRANSFER AND EXCHANGE RESTRICTIONS
Each purchaser of a Rule 144A Global Master Issuer Note, a Reg S
Global Master Issuer Note, a Rule 144A Definitive Note or a Reg S
Definitive Note, as the case may be, will be deemed to have
acknowledged, represented and agreed with the issuing entity, the Note
Trustee, the Transfer Agent and Registrar and the initial purchasers
as follows (terms used in this paragraph that are defined in Rule 144A
or Regulation S under the Securities Act are used herein as defined
therein): (1) the purchaser (A) in the case of Rule 144A Global Master
Issuer Notes or Rule 144A Definitive Notes (i) is a "qualified
institutional buyer" within the meaning of Rule 144A under the
Securities Act, (ii) is aware that the sale to it is being made in
reliance on Rule 144A under the Securities Act and (iii) is acquiring
the Rule 144A Global Master Issuer Notes and Rule 144A Definitive
Notes for its own account or for the account of a QIB or (B) in the
case of Reg S Global Master Issuer Notes or Reg S Definitive Notes, is
a non-U.S. person acquiring the Reg S Global Master Issuer Notes or
the Reg S Definitive Notes for its own account or as a fiduciary or
agent for other non-U.S. persons in an offshore transaction (as
defined in Regulation S under the Securities Act, an "offshore
transaction") pursuant to an exemption from registration provided by
Regulation S under the Securities Act; (2) the purchaser understands
that each Rule 144A Global Master Issuer Note, Reg S Global Master
Issuer Note, Rule 144A Definitive Note and Reg S Definitive Note is
being offered in a transaction not involving any public offering in
the United States within the meaning of the Securities Act, that such
Global Master Issuer Notes and Definitive Notes have not been and will
not be registered under the Securities Act and are not fungible with
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any Class of SEC-Registered Notes that (A) if in the future it decides
to offer, resell, pledge or otherwise transfer any Rule 144A Global
Master Issuer Note, Reg S Global Master Issuer Note, Rule 144A
Definitive Note and Reg S Definitive Note, such Master Issuer Notes
may be offered, resold, pledged or otherwise transferred only (i) in
the United States to a person whom the seller reasonably believes is a
QIB in a transaction meeting the requirements of Rule 144A, (ii)
outside the United States in a transaction complying with the
provisions of Rule 903 or 904 under the Securities Act, (iii) pursuant
to an exemption from registration under the Securities Act provided by
Rule 144 (if available), or (iv) pursuant to an effective registration
statement under the Securities Act, in each of cases (i) through (iv)
in accordance with any applicable securities laws of any State of the
United States, and that (B) the purchaser will, and each subsequent
holder is required to, notify any subsequent purchaser of such Global
Master Issuer Notes and Definitive Notes of the resale restrictions
referred to in (A) above; (3) the purchaser acknowledges that each of
the Rule 144A Master Issuer Notes will be represented by a Rule 144A
Global Master Issuer Note and that transfers thereof or any interest
therein are restricted as described herein; (4) with respect to any
foreign purchaser claiming an exemption from United States income or
withholding tax, such purchaser has delivered to the paying agent a
true and complete Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY, indicating such
exemption; and the purchaser acknowledges that transfers of the Master
Issuer Notes or any interest therein will otherwise be subject in all
respects to any other restrictions applicable thereto contained in
this Deed.
Moreover, each purchaser of a Rule 144A Global Master Issuer Note, a
Reg S Global Master Issuer Note, a Rule 144A Definitive Note or a Reg
S Definitive Note will be deemed to have represented and warranted, on
each day from the date on which the purchaser acquires such Global
Master Issuer Note or Definitive Note through and including the date
on which the purchaser disposes of such Global Master Issuer Note or
Definitive Master Issuer Note, either that (A) it is not a Plan or an
entity whose underlying assets include the assets of any Plan or a
governmental plan which is subject to any federal, state or local law
of the United States that is substantially similar to the provisions
of section 406 of ERISA or section 4975 of the Code or (B) its
purchase, holding and disposition of such note will not result in a
prohibited transaction under section 406 of ERISA or section 4975 of
the Code (or, in the case of the governmental plan, any substantially
similar federal, state or local law of the United States) for which an
exemption is not available.
(a) RULE 144A LEGEND
Each Rule 144A Global Master Issuer Note and each Rule 144A Definitive
Note will bear a legend substantially to the following effect:
"THIS NOTE IS ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES
ACT), AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS
NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUING ENTITY
THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
13
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903
OR 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE."
(b) REG S LEGEND
Each Reg S Global Master Issuer Note and each Reg S Definitive Note
will bear a legend substantially to the following effect:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF
U.S. LAW, PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE
COMMENCEMENT OF THE OFFERING OF THE NOTES AND THE CLOSING OF THE
OFFERING OF THE NOTES, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN OR INTO THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE
UNITED STATES."
Any transfer, resale, pledge or other transfer of the Reg S Master
Issuer Notes or Rule 144A Master Issuer Notes contrary to the
restrictions set forth in sub-clause 5.4 will be deemed void ab initio
by the Transfer Agent and Registrar.
5.5 CANCELLATION AND/OR ADJUSTMENT OF GLOBAL MASTER ISSUER NOTES AND
PURCHASE AND CANCELLATION OF MASTER ISSUER NOTES
(a) At such time as all Book-Entry Interests in respect of a Global Master
Issuer Note have been exchanged for Definitive Notes, such Global
Master Issuer Note shall be returned to or retained and cancelled by
the Registrar as set out in the Master Issuer Paying Agent and Agent
Bank Agreement. At any time prior to such cancellation, if any
Book-Entry Interest is exchanged for an interest in another Global
Master Issuer Note, the principal amount of the Master Issuer Notes
represented by such Global Master Issuer Note shall be reduced
accordingly and an endorsement shall be made on such Global Master
Issuer Note by the Registrar to reflect such reduction.
(b) Any Master Issuer Notes purchased by the Master Issuer, any Subsidiary
of the Master Issuer, any holding company of the Master Issuer or any
other Subsidiary of such holding company shall be cancelled forthwith
and may not be resold or reissued.
5.6 GENERAL PROVISIONS RELATING TO ALL TRANSFERS AND EXCHANGES
(a) To permit registrations of transfers and exchanges of Master Issuer
Notes, the Master Issuer shall execute and the Principal Paying Agent
shall authenticate Global Master Issuer Notes
14
and Definitive Notes upon a written order signed by an officer of the
Master Issuer or at the Registrar's request.
(b) No service fee shall be charged to a Noteholder for any registration
of a Definitive Note on transfer or exchange but the Master Issuer may
require payment of a sum sufficient to cover any stamp or transfer tax
or similar governmental charge payable in connection therewith (other
than any such stamp or transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Condition 13) and the
Registrar may require an indemnity in respect of such tax or charge.
(c) All Global Master Issuer Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Master Issuer Notes or
Definitive Notes shall be the valid obligations of the Master Issuer,
evidencing the same debt and entitled to the same benefits under this
Deed as the Global Master Issuer Notes or Definitive Notes surrendered
upon such registration of transfer or exchange.
5.7 REGISTER OF MASTER ISSUER NOTES
The Master Issuer shall at all times ensure that the Registrar
maintains in Luxembourg, or at such other place as the Note Trustee
may agree, a register (the REGISTER) in respect of the Master Issuer
Notes showing the amount of the Global Master Issuer Notes or
Definitive Notes, as the case may be, from time to time outstanding
and the dates of issue and all subsequent transfers and changes of
ownership thereof and the names and addresses of the holders of the
Global Master Issuer Notes or the Definitive Notes. So long as DTC or
its nominee, or the Common Depositary or its nominee, is the
registered holder of a Global Master Issuer Note, DTC or the Common
Depositary, as the case may be, will be considered the sole registered
holder of such Global Master Issuer Note for all purposes under this
Deed. Each Master Issuer Note, whether in global or definitive form,
shall have an identifying serial number which shall be entered on the
Register. The Note Trustee and the holders of such Master Issuer Notes
or any of them and any person authorised by it or any of them may at
all reasonable times during office hours inspect the Register and take
copies of or extracts from it.
6. FEES, DUTIES AND TAXES
The Master Issuer will pay any stamp duty, issue, registration,
documentary or other taxes of a similar nature and duties payable in
the United Kingdom, Belgium, Luxembourg or the United States,
including interest and penalties, on or in connection with (a) the
execution and delivery of these presents and the Transaction Documents
to which it is a party and any documents executed pursuant thereto,
(b) the constitution and original issue of the Master Issuer Notes and
(c) any action in any jurisdiction taken by or on behalf of the Note
Trustee or (where permitted under these presents so to do) any
Noteholder to enforce the Master Issuer Notes.
7. COVENANT OF COMPLIANCE
The Master Issuer covenants with the Note Trustee that it will comply
with and perform and observe all the provisions of these presents, the
Master Issuer Notes, the Master Issuer Deed of Charge, the Master
Issuer Paying Agent and Agent Bank Agreement and the documents
executed pursuant hereto and thereto and the other Transaction
Documents which are expressed to be binding on it. The Conditions
shall be binding on the Master Issuer, the Noteholders, the Note
Trustee and all persons claiming through or under any of them. The
Note Trustee shall be entitled to enforce the obligations of the
Master Issuer under the Master Issuer Notes and the Conditions and to
exercise any other rights, powers, authorities and discretions
conferred upon the Note Trustee in the Conditions as if the same were
set out and
15
contained in this Deed, which shall be read and construed as one
document with the Master Issuer Notes. The Note Trustee shall hold the
benefit of this covenant upon trust for itself and the Noteholders
according to its and their respective interests. The provisions of
Schedule 3 and Schedule 4 shall have effect in the same manner as if
herein set forth.
8. CANCELLATION OF MASTER ISSUER NOTES AND RECORDS
8.1 The Master Issuer shall procure that all Master Issuer Notes (a)
redeemed, (b) being mutilated or defaced, surrendered and replaced
pursuant to Condition 13 or (c) exchanged as provided in these
presents shall forthwith be cancelled by or on behalf of the Master
Issuer and a certificate stating:
(a) the aggregate principal amount of Master Issuer Notes which
have been redeemed;
(b) the serial numbers of Master Issuer Notes of each class so
redeemed;
(c) the aggregate amount of interest paid (and the due dates of
such payments) on Master Issuer Notes of each Series and Class
(or Sub-Class); and
(d) the aggregate principal amounts of Master Issuer Notes of each
Series and Class (or Sub-Class) which have been so exchanged
and replaced and the serial numbers of such Master Issuer
Notes in definitive form,
shall be given to the Note Trustee by or on behalf of the Master
Issuer as soon as possible and in any event within four months after
the date of such redemption, replacement, exchange or cancellation, as
the case may be. The Note Trustee may accept without further
investigation or enquiry such certificate as conclusive evidence of
such redemption, replacement or exchange pro tanto of the Master
Issuer Notes or payment of interest thereon and of cancellation of the
relative Master Issuer Notes.
8.2 The Master Issuer shall procure that the Registrar shall keep a full
and complete record of all Master Issuer Notes and of their
redemption, cancellation, payment or exchange (as the case may be) and
of all replacement Master Issuer Notes issued in substitution for
lost, stolen, mutilated, defaced or destroyed Master Issuer Notes. The
Master Issuer shall procure that the Registrar shall at all reasonable
times make such record available to the Master Issuer and the Note
Trustee.
8.3 All records and certificates maintained pursuant to this Clause 8
shall make a distinction between Definitive Notes and Global Master
Issuer Notes.
9. ENFORCEMENT
9.1 The Note 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 Master Issuer or any other person as it
may think fit to enforce its obligations under these presents, the
Master Issuer Notes or any of the other Transaction Documents,
including giving directions to the Master Issuer Security Trustee
under or in connection with any Transaction Document.
9.2 Unless the contrary be proved to the satisfaction of the Note Trustee,
proof that as regards any specified Master Issuer Note the Master
Issuer has made default in paying any amount due in respect of such
Master Issuer Note shall be sufficient evidence that the same default
has been made as regards all other Master Issuer Notes in respect of
which the relevant amount is due and payable.
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9.3 References in sub-clauses 2.2(b) and 2.2(c) or the provisions of any
trust deed supplemental to this Deed corresponding to sub-clauses
2.2(b) and 2.2(c) to "the rates aforesaid" shall, in the event of such
Master Issuer Notes having become due and repayable, with effect from
the expiry of the Interest Period during which such Master Issuer
Notes become due and repayable, be construed as references to rates of
interest calculated mutatis mutandis in accordance with the
Conditions, except that no notices need be published in respect
thereof.
10. PROCEEDINGS, ACTIONS AND INDEMNIFICATION
10.1 The Note Trustee shall not be bound to take any proceedings or give
any directions mentioned in sub-clause 9.1 or any other action in
relation to these presents, the Master Issuer Notes or any documents
executed pursuant thereto or any of the other Transaction Documents
unless (a) respectively directed or requested to do so by an
Extraordinary Resolution of the Class A Noteholders, the Class B
Noteholders, the Class M Noteholders, the Class C Noteholders or the
Class D Noteholders, as the case may be, or in writing by the holders
of at least one-quarter in aggregate Principal Amount Outstanding of
the Class A Master Issuer Notes, the Class B Master Issuer Notes, the
Class M Master Issuer Notes, the Class C Master Issuer Notes or the
Class D Master Issuer Notes, as the case may be, then outstanding and
(b) it shall be indemnified and/or secured to its satisfaction against
all liabilities, actions, proceedings, claims and demands to which it
may be or become liable and all costs, charges, damages and expenses
which may be incurred by it in connection therewith, and the terms of
such indemnity may include the provisions of a fighting fund,
non-recourse loan or other similar arrangement PROVIDED THAT:
(a) the Note Trustee shall not be obliged to act at the direction
or request of the Class B Noteholders as aforesaid unless
either the Note Trustee is of the sole opinion that to do so
would not 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;
(b) the Note Trustee shall not be obliged to act at the direction
or request of the Class M Noteholders as aforesaid unless (i)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders and (ii)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class B Noteholders;
(c) the Note Trustee shall not be obliged to act at the direction
or request of the Class C Noteholders as aforesaid unless (i)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders; (ii)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class B Noteholders; and (iii)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class M Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class M Noteholders;
(d) the Note Trustee shall not be obliged to act at the direction
or request of the Class D Noteholders as aforesaid unless (i)
either the Note Trustee is of the sole opinion that to do so
17
would not be materially prejudicial to the interests of the
Class A Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class A Noteholders; (ii)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class B Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class B Noteholders; (iii)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class M Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class M Noteholders and (iv)
either the Note Trustee is of the sole opinion that to do so
would not be materially prejudicial to the interests of the
Class C Noteholders or such action is sanctioned by an
Extraordinary Resolution of the Class C Noteholders; and
(e) the Note Trustee shall only be obliged to give a Note
Enforcement Notice at the direction or request of the most
senior class of Noteholders as aforesaid.
10.2 Save as provided below, only the Note Trustee may enforce the
provisions of these presents, the Conditions or the Master Issuer
Notes. No Noteholder shall be entitled to proceed directly against the
Master Issuer or any other party to any of the Master Issuer
Transaction Documents unless the Note Trustee, having become bound as
aforesaid to take proceedings, fails to do so within a reasonable
period and such failure is continuing; provided that no Class B
Noteholder, Class M Noteholder, Class C Noteholder or Class D
Noteholder will be entitled to commence proceedings for the winding up
or administration of the Master Issuer unless there are no outstanding
Master Issuer Notes of a Class with higher priority or, if Master
Issuer Notes of a Class with higher priority are outstanding, there is
consent of Noteholders of not less than one quarter of the aggregate
principal amount of the Master Issuer Notes outstanding of the Class
or Classes of Master Issuer Notes with higher priority or pursuant to
an Extraordinary Resolution of the Holders of such Class of Master
Issuer Notes.
11. DISCHARGE OF PAYMENT
Any payment to be made in respect of the Master Issuer Notes by the
Master Issuer or the Note Trustee may be made in accordance with the
Conditions and any payment so made shall be a good discharge of the
relevant payment obligation of the Master Issuer or, as the case may
be, the Note Trustee.
12. INVESTMENT BY NOTE TRUSTEE
12.1 The Note Trustee may at its discretion and pending payment invest
moneys at any time available for the payment of principal and interest
on the Master Issuer Notes of any Class in some or one of the
investments hereinafter authorised for such periods as it may consider
expedient with power from time to time at the like discretion to vary
such investments and to accumulate such investments and the resulting
interest and other income derived therefrom. The accumulated
investments shall be applied under clause 7 (Payments out of the
Master Issuer Transaction Accounts Upon Enforcement) of the Master
Issuer Deed of Charge. All interest and other income deriving from
such investments shall be applied first in payment or satisfaction of
all amounts then due and unpaid under Clause 15 to the Note Trustee
and/or any Appointee and otherwise held for the benefit of and paid to
the holders of the Master Issuer Notes of such Class.
12.2 Any moneys which under the trusts of these presents ought to or may be
invested by the Note Trustee may be invested in the name or under the
control of the Note Trustee in any investments or other assets in any
part of the world whether or not they produce income or by placing the
same on deposit in the name or under the control of the Note Trustee
at such bank or other financial institution and in such currency as
the Note Trustee may think fit. If that bank or institution is the
Note Trustee or a subsidiary, holding or associated company of the
Note Trustee, it need only account for an amount of interest equal to
the amount of interest which would, at then current rates, be payable
by it on such a deposit to an independent
18
customer. The Note Trustee may at any time vary any such investments
for or into other investments or convert any moneys so deposited into
any other currency and shall not be responsible for any loss resulting
from any such investments or deposits, whether due to depreciation in
value, fluctuations in exchange rates or otherwise.
13. PARTIAL PAYMENTS
Upon presentation and surrender to the Registrar of a Definitive Note
that is redeemed in part, the Principal Paying Agent shall
authenticate for the holder a new Definitive Note equal in principal
amount to the principal amount of the unredeemed portion of the
Definitive Note surrendered. Upon presentation of a Global Master
Issuer Note that is redeemed in part, the Registrar shall make a
notation on Part I of the Schedule thereto to reduce the aggregate
principal amount of such Global Master Issuer Note to an amount equal
to the aggregate principal amount of the unredeemed portion of the
Global Master Issuer Note presented.
14. COVENANTS BY THE MASTER ISSUER
So long as any of the Master Issuer Notes remain outstanding (or, in
the case of paragraphs (i), (j), (n), (o) and (q), so long as any of
the Master Issuer Notes remain liable to prescription in respect of
the payment of principal in respect of all such Master Issuer Notes
remaining outstanding at such time) the Master Issuer covenants with
the Note Trustee that it shall:
(a) CONDUCT: at all times carry on and conduct its affairs in a
proper and efficient manner and in accordance with its
constitutive documents and all laws and regulations applicable
to it;
(b) INFORMATION: give or procure to be given to the Note Trustee
such opinions, certificates, information and evidence as the
Note Trustee shall require and in such form as it shall
require, including without limitation the procurement by the
Master Issuer of all such certificates called for by the Note
Trustee pursuant to this Deed for the purpose of the discharge
or exercise of the duties, trusts, powers, authorities and
discretions vested in it under these presents or by operation
of law;
(c) ACCOUNTS FOR STOCK EXCHANGE: cause to be prepared and
certified by the Auditors of the Master Issuer in respect of
each Financial Period, accounts in such form as will comply
with all relevant legal and accounting requirements and all
requirements for the time being of any stock exchange,
competent listing authority and/or quotation system on or by
which the Master Issuer Notes are listed, quoted and/or
traded;
(d) BOOKS AND RECORDS: at all times keep proper books of account
and allow the Note Trustee and any person appointed by the
Note Trustee free access to such books of account at all
reasonable times during normal business hours;
(e) NOTEHOLDER INFORMATION: send to the Note Trustee (in addition
to any copies to which it may be entitled as a holder of any
securities of the Master Issuer) two copies in English of
every balance sheet, profit and loss account, report, circular
and notice of general meeting and every other document issued
or sent to its shareholders as a class together with any of
the foregoing, and every document issued or sent to holders of
securities other than its shareholders (including the
Noteholders) as soon as practicable after the issue or
publication thereof;
(f) NOTICE OF NOTE EVENT OF DEFAULT: give notice in writing to the
Note Trustee of the occurrence of any Note Event of Default,
Potential Note Event of Default or any
19
matter it concludes is likely to give rise to a Note Event of
Default immediately upon becoming aware thereof, including the
status of any such default or matter and what action the
Master Issuer is taking or proposes to take with respect
thereto, and without waiting for the Note Trustee to take any
action;
(g) NOTICE OF DEFERRAL OF PAYMENTS: as soon as practicable after
becoming aware that any part of a payment of interest on the
Master Issuer Notes will be deferred or that a payment
previously deferred will be made in accordance with Condition
4, give notice thereof to the Noteholders in accordance with
Condition 14 and, for so long as the Master Issuer Notes are
listed on the official list of the United Kingdom Listing
Authority and admitted to trading on the London Stock
Exchange's market for listed securities, in accordance with
the listing rules of the United Kingdom Listing Authority and
the rules of the London Stock Exchange;
(h) CERTIFICATES RELATING TO FINANCIAL INFORMATION: give to the
Note Trustee (i) within 14 days after demand by the Note
Trustee therefor and (ii) (without the necessity for any such
demand) promptly after the publication of its audited accounts
in respect of each Financial Period commencing with the
financial period first ending after the date hereof and in any
event not later than 120 days after the end of each such
financial period a certificate signed by two directors of the
Master 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
Note Event of Default or Potential Note Event of Default (or
if such exists or existed, specifying the same) and that
during the period from and including the certification date of
the last such certificate (or in the case of the first such
certificate the date hereof) to and including the
certification date of such certificate the Master Issuer has
complied, to the best of such directors' knowledge and belief,
with all its obligations contained in these presents and each
of the Master 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;
(i) FURTHER ASSURANCES: at all times execute and do all such
further documents, acts and things as may be necessary at any
time or times in the opinion of the Note Trustee to give
effect to these presents and the other Master Issuer
Transaction Documents only in so far as permitted by law;
(j) AGENT BANK, REFERENCE BANKS ETC.: at all times maintain an
Agent Bank, four Reference Banks, a Paying Agent, a Transfer
Agent and a Registrar in accordance with the Conditions;
(k) NOTIFICATION OF NON-PAYMENT: procure the Principal Paying
Agent (or any other relevant Paying Agent) to notify the Note
Trustee forthwith in the event that (i) the Principal Paying
Agent (or other relevant Paying Agent) does not, on or before
the due date for any payment in respect of any of the Master
Issuer Notes, receive unconditionally pursuant to the Master
Issuer Paying Agent and Agent Bank Agreement, payment of the
full amount in the requisite currency of the monies payable on
such due date on all such Master Issuer Notes, or (ii) there
are insufficient funds in the Specified Currency available to
the Principal Paying Agent to discharge the amount of the
monies payable on such due date;
(l) NOTIFICATION OF LATE UNCONDITIONAL PAYMENT: in the event of
any unconditional payment to the Principal Paying Agent, (or
any other relevant Paying Agent) or the Note Trustee of any
sum due in respect of any of the Master Issuer Notes being
20
made after the due date for payment thereof forthwith give or
procure to be given notice to the relevant Noteholders in
accordance with Condition 14 that such payment has been made;
(m) LISTING: use reasonable endeavours to maintain the listing of
the Master Issuer Notes on the official list of the United
Kingdom Listing Authority and to maintain the admission to
trading of the Master Issuer Notes on the London Stock
Exchange's market for listed securities or, if it is unable to
do so having used reasonable endeavours, use reasonable
endeavours to obtain and maintain a quotation, listing and
admission to trading of the Master Issuer Notes on or by such
other stock exchanges, competent listing authorities and/or
quotation systems as the Master Issuer may decide (with the
prior written approval of the Note Trustee) and shall also
upon obtaining a quotation, listing and admission to trading
of such Master Issuer Notes on or by such other stock
exchanges, competent listing authorities and/or quotation
systems enter into a trust deed supplemental to this Deed to
effect such consequential amendments to this Deed as the Note
Trustee may require or as shall be requisite to comply with
the requirements of any such stock exchange, competent listing
authority and/or quotation system;
(n) CHANGE OF AGENT BANK, REFERENCE BANKS, ETC.: give notice to
the Noteholders in accordance with Condition 14 of any
appointment, resignation or removal of any Agent Bank,
Reference Banks, Paying Agents, Transfer Agent or Registrar
(other than the appointment of the initial Agent Bank,
Reference Banks, Paying Agents, Transfer Agent and Registrar)
after, except in the case of resignation, having obtained the
prior written approval of the Note Trustee (such approval not
to be unreasonably withheld or delayed) thereto or any change
of any Paying Agent's, Agent Bank's, Transfer Agent's or
Registrar's specified office and (except as provided by the
Master Issuer Paying Agent and Agent Bank Agreement or the
Conditions) at least 30 days prior to such event taking
effect; PROVIDED ALWAYS THAT so long as any of the Master
Issuer Notes remain outstanding in the case of the termination
of the appointment of the Agent Bank, Transfer Agent or the
Registrar or so long as any of the Master Issuer Notes remain
liable to prescription in the case of the termination of the
appointment of the Principal Paying Agent no such termination
shall take effect until a new Agent Bank, Transfer Agent,
Registrar or Principal Paying Agent, as the case may be, has
been appointed on terms previously approved in writing by the
Note Trustee;
(o) PRE-APPROVAL OF NOTICES: obtain the prior written approval of
the Note Trustee to, and promptly give to the Note Trustee and
the Rating Agencies two copies of, the form of every notice
given to the Noteholders in accordance with Condition 14 (such
approval, unless so expressed, not to constitute approval for
the purposes of Section 21 of FSMA of the content of an
invitation or inducement to engage in investment activities
within the meaning of Section 21 of FSMA;
(p) AVAILABILITY OF MEETING MATERIALS: from time to time as
required or contemplated by this Deed or as reasonably
requested by the Note Trustee, make available through the
Paying Agents, or otherwise, such documents as may be required
by the Noteholders in connection with meetings of Noteholders;
(q) COMPLIANCE WITH MASTER ISSUER PAYING AGENT AND AGENT BANK
AGREEMENT AND OTHER TRANSACTION DOCUMENTS: use its best
endeavours to procure that the Agent Bank, the Paying Agents,
the Transfer Agent and the Registrar comply with and perform
all their respective obligations under the Master Issuer
Paying Agent and Agent Bank Agreement and the other
Transaction Documents and (in the case of the
21
Paying Agents, the Transfer Agent and the Registrar) any
notice given by the Note Trustee pursuant to sub-clause 2.3(a)
and not make any amendment or modification to the Master
Issuer Paying Agent and Agent Bank Agreement or any other
Transaction Documents or agree to waive or authorise any
breach thereof without the prior written approval of the Note
Trustee;
(r) EXERCISE OF REDEMPTION RIGHTS: in the event that Funding
elects to prepay any Term Advance in whole or in part under
the Master Intercompany Loan Agreement, the Master Issuer
shall exercise its right to redeem the corresponding Series
and Class/es (or Sub-Classes) of Master Issuer Notes in the
same respective aggregate principal amounts as such Term
Advances on the same Interest Payment Date under Condition
5.4, Condition 5.5 or Condition 5.6, as applicable;
(s) REDEMPTION REQUIREMENTS: not give notice of its election to
redeem all or any part of any Series and Class/es (or
Sub-Classes) of Master Issuer Notes pursuant to Condition 5.4,
Condition 5.5 or Condition 5.6 unless it shall first have:
(i) given written notice to the Note Trustee of its
intention so to do in accordance with the Master
Issuer Paying Agent and Agent Bank Agreement; and
(ii) delivered to the Note Trustee a certificate signed by
two directors of the Master Issuer certifying that the
Master Issuer will have the necessary funds on the
Interest Payment Date on which redemption is to occur
(the REDEMPTION DATE) to discharge all amounts
required under the Master Issuer Deed of Charge to be
paid in priority to such Series and Class/es (or
Sub-Classes) of Master Issuer Notes on the redemption
date, and to redeem such Series and/or Class/es of
Master Issuer Notes in whole or, as the case may be,
in part; and that all such funds will on such
redemption date be subject to the security constituted
by the Master Issuer Deed of Charge and not subject to
the interest of any other person;
provided always that the provisions of this subclause are
subject to and without prejudice to the provisions of
sub-clause 14(o);
(t) INTEREST IN MASTER ISSUER CHARGED PROPERTY: ensure that, save
as permitted in these presents, the Master Issuer Deed of
Charge, the Conditions and the other Master Issuer Transaction
Documents, no person other than the Master Issuer and the
Master Issuer Security Trustee shall have any equitable or
beneficial interest in the Master Issuer Charged Property;
(u) MAINTENANCE OF MASTER ISSUER CASH MANAGER: ensure that there
is at all times a cash manager appointed in accordance with
the provisions of the Master Issuer Cash Management Agreement;
(v) TAX DEDUCTION: take reasonable steps to ensure that it does
not engage in any course of conduct that would lead to a
deduction, for United Kingdom corporation tax purposes, in
respect of accrued interest or discount on the Master Issuer
Notes by the Master Issuer being denied, postponed or
restricted (whether such denial, postponement or restriction
results from the application of paragraph 2 or 13 of Schedule
9 of the Finance ▇▇▇ ▇▇▇▇ or otherwise);
(w) UNITED KINGDOM AND UNITED STATES TAX STATUS: ensure that it is
at all times solely resident in the United Kingdom for United
Kingdom tax purposes and has no
22
branch, business establishment or other fixed establishment
outside the United Kingdom; and furthermore, ensure that it
will not engage in any activities in the United States
(directly or through agents), will not derive any income from
United States sources as determined under United States income
tax principles, and will not hold any property if doing so
would cause it to be engaged or deemed to be engaged in a
trade or business within the United States as determined under
United States income tax principles;
(x) PRE-ENFORCEMENT PAYMENTS: ensure that amounts standing to the
credit of the Master Issuer Transaction Accounts will be
applied by the Master Issuer in or towards satisfaction of
such of the obligations set out in the Master Issuer Cash
Management Agreement as may be, at any given time, then due
and payable (in each case only if and to the extent that
payments or provisions of a higher order of priority which are
also due and payable or are likely to fall due at that time or
prior to the next succeeding Interest Payment Date have been
made or provided for in full);
(y) AVAILABILITY OF INFORMATION: make available for inspection by
Noteholders at the specified office of the Registrar during
normal business hours on any Business Day copies of each
balance sheet and profit and loss account sent to the Note
Trustee pursuant to sub-clause 14(e), this Deed, the Master
Issuer Paying Agent and Agent Bank Agreement and the other
Master Issuer Transaction Documents and provide the Registrar
with the information specified in Condition 5.3;
(z) RATINGS: furnish, or procure that there is furnished, from
time to time, any and all documents, instruments, information
and undertakings that may be reasonably necessary in order to
maintain the current ratings of the Master Issuer Notes by the
Rating Agencies (save that when any such document, instrument,
information and/or undertaking is not within the possession or
control of the Master Issuer, the Master Issuer agrees only to
use its best efforts to furnish, or procure that there is
furnished, from time to time any such documents, instruments,
information and undertakings as may be reasonably necessary in
order to maintain the current ratings of the Master Issuer
Notes by the Rating Agencies);
(aa) CALCULATIONS: do, or procure that there are done on its
behalf, all calculations required pursuant to the Conditions;
(bb) DTC, EUROCLEAR AND CLEARSTREAM, LUXEMBOURG: use its reasonable
endeavours to procure that DTC and Euroclear and/or
Clearstream, Luxembourg (as the case may be) issue(s) any
certificate or other document requested by the Note Trustee
acting reasonably pursuant to these presents as soon as
practicable after such request;
(cc) INFORMATION REGARDING NOTEHOLDERS: furnish or cause to be
furnished to the Note Trustee on 30 June and 31 December of
each year, commencing 31 December 2006 and at such other times
as the Note Trustee may request in writing, all information in
the possession or control of the Master Issuer or of the
Registrar as to the names and addresses of the Noteholders,
and requiring the Note Trustee to preserve, in as current a
form as is reasonably practicable, all such information so
furnished to it;
(dd) OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO
BE CONTAINED THEREIN: upon any application, demand or request
by the Master Issuer to the Note Trustee to take any action
under any of the provisions of this Deed (other than the
issuance of Master Issuer Notes) and upon request of the Note
Trustee, furnish to the Note Trustee an officers' certificate
and opinion of counsel complying with the
23
provisions of Section 314 of the Trust Indenture Act (an
OFFICERS' CERTIFICATE and OPINION OF COUNSEL, respectively);
(ee) AUTHORISED SIGNATORIES: upon the execution of this Deed and
thereafter forthwith upon any change of the same, deliver to
the Note Trustee (with a copy to the Principal Paying Agent
and the Registrar) a list of the Authorised Signatories of the
Master Issuer, together with certified specimen signatures of
the same;
(ff) MASTER ISSUER NOTES OF THE MASTER ISSUER: in order to enable
the Note Trustee to ascertain the nominal amount of the Master
Issuer Notes of each Series and Class (or Sub-Class) for the
time being outstanding for any of the purposes referred to in
the proviso to the definition of OUTSTANDING in the Master
Issuer Master Definitions and Construction Schedule, deliver
to the Note Trustee as soon as practicable upon being so
requested in writing by the Note Trustee a certificate in
writing signed by two directors of the Master Issuer setting
out the total number and aggregate nominal amount of the
Master Issuer Notes of each Series and Class (or Sub-Class)
issued which:
(i) up to and including the date of such certificate have
been purchased by the Master Issuer, any Subsidiary of
the Master Issuer, any holding company of the Master
Issuer or any other Subsidiary of such holding company
and cancelled; and
(ii) are at the date of such certificate held by, for the
benefit of, or on behalf of, the Master Issuer, any
Subsidiary of the Master Issuer, any holding company
of the Master Issuer or any other Subsidiary of such
holding company;
(gg) NEW ISSUANCE: notify the Note Trustee at least five London
Business Days prior to the relevant Closing Date of any new
Series and Class (or Sub-Class) of Master Issuer Notes if the
terms and conditions of such Master Issuer Notes are different
from the Conditions attached hereto as Schedule 3;
(hh) CENTRE OF MAIN INTERESTS: maintain its registered office in
the United Kingdom and maintain its "centre of main interests"
(as that expression is defined in the Council Regulation (EC)
No. 1346/2000 of 29 May, 2000) in the United Kingdom; and
(ii) UNITED STATES REPORTING REQUIREMENTS: send to the Note Trustee
copies of the annual reports, information, documents, and
other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe)
which the Master Issuer is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act within 15
days after it files them with the SEC and comply with the
other provisions of Section 314(a) of the Trust Indenture Act.
15. REMUNERATION AND INDEMNIFICATION OF THE NOTE TRUSTEE
15.1 The Master Issuer shall pay to the Note Trustee remuneration for its
services as trustee as from the date of this Deed, such remuneration
to be at such rate and to be paid on such dates as may from time to
time be agreed in writing between the Master Issuer and the Note
Trustee. The rate of remuneration in force from time to time may upon
the final redemption of the whole of the Master Issuer Notes of any
Series and Class (or Sub-Class) be reduced by such amount as shall be
agreed in writing between the Master Issuer and the Note Trustee, such
reduced remuneration to be calculated from such date as shall be
agreed as aforesaid. Such remuneration shall accrue from day to day
and be payable (in priority to payments to the
24
Noteholders) up to and including the date when, all the Master Issuer
Notes having become due for redemption, the redemption monies and
interest thereon to the date of redemption have been paid to the
Principal Paying Agent and, where applicable, the Registrar or, as the
case may be, the Note Trustee PROVIDED THAT if upon due presentation
of any Master Issuer Note or any cheque payment of the monies due in
respect thereof is improperly withheld or refused, remuneration will
commence again to accrue until payment to the Noteholders is made.
15.2 In the event of the occurrence of a Note Event of Default or the Note
Trustee in its absolute discretion considering it necessary, or being
requested by the Master Issuer to undertake duties which the Note
Trustee and the Master Issuer agree to be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note Trustee
under this Deed, the Master Issuer shall pay to the Note Trustee such
additional remuneration as shall be agreed between them.
15.3 The Master Issuer shall pay to the Note Trustee in addition an amount
equal to the amount of any VAT or similar tax chargeable in respect of
its remuneration under this Deed against production of a valid tax
invoice.
15.4 In the event of the Note Trustee and the Master Issuer failing to
agree:
(a) (in a case to which sub-clause 15.1 above applies) upon the
amount of the remuneration; or
(b) (in a case to which sub-clause 15.2 above applies) upon
whether such duties shall be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note
Trustee under this Deed, or upon such additional remuneration,
such matters shall be determined by a person (acting as an expert and
not as an arbitrator) selected by the Note Trustee and approved by the
Master Issuer or, failing such approval, nominated (on the application
of the Note Trustee) by the President for the time being of The Law
Society of England and Wales (the expenses involved in such nomination
and the fees of such person being payable by the Master Issuer) and
the determination of any such person shall be final and binding upon
the Note Trustee and the Master Issuer.
15.5 In addition to remuneration hereunder, the Master Issuer shall on
written request pay (on an indemnity basis) all other costs, charges
and expenses which the Note Trustee and any Appointee 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 and any other Master
Issuer Transaction Document to which the Note Trustee is a party,
including but not limited to reasonable travelling and legal expenses
properly incurred and any stamp, issue, registration, documentary and
other similar taxes or duties paid or payable by the Note Trustee in
connection with any action taken or contemplated by or on behalf of
the Note Trustee for enforcing, or for any other purpose in relation
to, this Deed or any of the other Transaction Documents.
15.6 All amounts payable pursuant to sub-clause 15.2 above and/or
sub-clause 16(l) shall be payable by the Master Issuer on the date
specified in a demand by the Note Trustee and in the case of payments
actually made by the Note Trustee prior to such demand shall (if not
paid within three days after such demand and the Note Trustee so
requires) carry interest at the rate of three per cent. per annum
above the mean base rate from time to time of the Reference Banks from
the date specified in such
25
demand, and in all other cases shall (if not paid on the date
specified in such demand or, if later, within three days after such
demand and, in either case, the Note Trustee so requires) carry
interest at such rate from the date specified in such demand. All
remuneration payable to the Note Trustee shall carry interest at such
rate from the due date therefor.
15.7 Unless otherwise specifically stated in any discharge of this Deed,
the provisions of this Clause 15 and sub-clause 16(l) shall continue
in full force and effect notwithstanding such discharge.
15.8 The Note Trustee shall be entitled in its absolute discretion to
determine in respect of which Series and Class (or Sub-Class) of
Master Issuer Notes any liabilities incurred under this Deed have been
incurred or to allocate any such liabilities between the Master Issuer
Notes of any Series and Class (or Sub-Class).
16. SUPPLEMENT TO TRUSTEE ACTS
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Note Trustee in relation to the trusts constituted by these presents.
Where there are any inconsistencies between the Trustee Acts and the
provisions of these presents, the provisions of these presents shall,
to the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee ▇▇▇ ▇▇▇▇, the provisions of these
presents shall constitute a restriction or exclusion for the purposes
of that Act (which provisions, except as expressly provided in this
Clause 15, shall be in lieu of the provisions contained in section
315(a) of the Trust Indenture Act).
The Note Trustee shall have all the powers conferred upon trustees by
the Trustee ▇▇▇ ▇▇▇▇ of England and Wales and by way of supplement
thereto it is expressly declared as follows:
(a) EXPERT ADVICE OR OPINION: the Note Trustee may in relation to
these presents or the other Transaction Documents act on the
advice or opinion of or any information obtained from any
lawyer, valuer, accountant, surveyor, banker, broker,
auctioneer or other person whether obtained by the Master
Issuer, the Note Trustee, the Principal Paying Agent, the
Registrar or otherwise and shall not be responsible for any
liability occasioned by so acting in good faith; any such
advice, opinion or information may be sent or obtained by
letter, telex, telegram, facsimile transmission, email or
cable and the Note Trustee shall not be liable for acting on
any advice, opinion or information purporting to be conveyed
by any such letter, telex, telegram, facsimile transmission,
email or cable although the same shall contain some error or
shall not be authentic;
(b) CERTIFICATE AS SUFFICIENT EVIDENCE: the Note Trustee may call
for and shall be at liberty to accept as sufficient evidence
of any fact or matter or the expediency of any transaction or
thing a certificate signed by any two directors of the Master
Issuer and the Note Trustee shall not be bound in any such
case to call for further evidence or be responsible for any
liability that may be occasioned by it or any other person
acting on such certificate;
(c) CUSTODY OF DOCUMENTS: the Note Trustee shall be at liberty to
hold these presents and any other documents relating thereto
or any other Transaction Documents or to deposit them in any
part of the world with any banker or banking company or
company whose business includes undertaking the safe custody
of documents or lawyer or firm of lawyers considered by the
Note Trustee to be of good repute and the Note Trustee shall
not be responsible for or required to insure against any
liability incurred in connection with any such holding or
deposit and may pay all sums required to be paid on account of
or in respect of any such deposit;
26
(d) APPLICATION OF PROCEEDS: the Note Trustee shall not be
responsible for the receipt or application of the proceeds of
the issue of any of the Master Issuer Notes by the Master
Issuer, the exchange of any Global Master Issuer Note for
another Global Master Issuer Note or Definitive Notes or the
exchange of any Definitive Note for another Definitive Note or
the delivery of any Global Master Issuer Note or Definitive
Notes to the person(s) entitled to it or them;
(e) ASSUMPTION OF NO DEFAULT: except to the extent required
pursuant to Section 315(b) of the Trust Indenture Act, the
Note Trustee shall not be bound to give notice to any person
of the execution of any documents comprised or referred to in
these presents or to take any steps to ascertain whether any
Note Event of Default or Potential Note Event of Default has
happened and, until it shall have actual knowledge or express
notice pursuant to these presents to the contrary, the Note
Trustee shall be entitled to assume that no Note Event of
Default or Potential Note Event of Default has occurred and
that the Master Issuer is observing and performing all of its
obligations under these presents;
(f) ABSOLUTE DISCRETION: save as expressly otherwise provided in
this Deed, the Note Trustee shall have absolute and
uncontrolled discretion as to the exercise or non exercise of
its trusts, powers, authorities and discretions under these
presents (the exercise or non-exercise of which as between the
Note Trustee and the Noteholders shall be conclusive and
binding on the Noteholders) and provided it shall not have
acted fraudulently or negligently or in breach of the terms of
this Deed, shall not be responsible for any liability which
may result from their exercise or non-exercise;
(g) RELIANCE ON EXTRAORDINARY RESOLUTION: the Note Trustee shall
not be liable to any person by reason of having acted upon any
Extraordinary Resolution in writing or any Extraordinary
Resolution or other resolution purporting to have been passed
at any meeting of the holders of Master Issuer Notes of all or
any Series and/or Class/es in respect whereof minutes have
been made and signed or any direction or request of holders of
Master Issuer Notes even though subsequent to its acting it
may be found that there was some defect in the constitution of
the meeting or the passing of the resolution or (in the case
of an Extraordinary Resolution in writing) that not all
relevant Noteholders had signed the Extraordinary Resolution
or (in the case of a direction or request) it was not signed
by the requisite number of Noteholders or that for any reason
the resolution, direction or request was not valid or binding
upon such Noteholders;
(h) RELIANCE ON NOTICE OF PREPAYMENT: without prejudice to the
right of the Note Trustee to require and/or accept any other
evidence, the Note Trustee may accept as conclusive evidence
of the matters certified therein a certificate signed by two
directors of the Master Issuer under sub-clause 14(s)(ii). The
Note Trustee shall have no responsibility to the Noteholders
or any other person for guaranteeing or ensuring that the
Master Issuer's liabilities in respect of the Master Issuer
Notes and any other amounts are in fact discharged on the due
date and shall have no liability to the Noteholders or any
other person for any failure by the Master Issuer to discharge
or pay such liabilities and other amounts;
(i) MASTER ISSUER CHARGED PROPERTY: the Note Trustee may accept
without enquiry, requisition or objection such title as the
Master Issuer may have to the Master Issuer Charged Property
or any part thereof from time to time and shall not be bound
to investigate or make any enquiry into the title of the
Master Issuer to the Master Issuer Charged Property or any
part thereof from time to time whether or not any
27
default or failure is or was known to the Note 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
Noteholder 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 Master Issuer, and the Note Trustee shall not at
any time have any responsibility for the same and each
Noteholder shall not rely on the Note Trustee in respect
thereof;
(j) RELIANCE ON CERTIFICATES OR CONFIRMATIONS: except in the event
of wilful default or manifest error, the Note Trustee shall be
entitled to rely without investigation or enquiry on a
certificate or confirmation of the Agent Bank, any Paying
Agent, any Rating Agency or any Reference Bank in respect of
every matter and circumstance for which a certificate or
confirmation of the Agent Bank, any Paying Agent, any Rating
Agency or any Reference Bank is expressly provided for under
these presents, the Conditions or any other Transaction
Document and to call for and rely upon a certificate or
confirmation of the Agent Bank, any Paying Agent, any Rating
Agency or any Reference Bank or any other person as to any
other fact or matter prima facie within the knowledge of the
Agent Bank, any Paying Agent, any Rating Agency or any
Reference Bank or such other person, as sufficient evidence
thereof and the Note Trustee shall not be bound in any such
case to call for further evidence or be responsible for any
loss, liability, costs, damages, expenses or inconvenience
that may be occasioned by its failing so to do or the exercise
or non-exercise by the Note Trustee of any of its powers,
duties and discretions hereunder;
(k) MASTER ISSUER NOTES NOT AUTHENTIC: the Note Trustee shall not
be liable to any person by reason of having accepted as valid
or not having rejected any Master Issuer Note purporting to be
such and subsequently found to be forged or not authentic;
(l) INDEMNITY: without prejudice to the right of indemnity by law
given to trustees, the Master Issuer shall indemnify the Note
Trustee and every Appointee (except where indemnified by the
Noteholders) and keep it or him indemnified against all
liabilities to which it or he may be or become subject or
which may be incurred by it or him in the proper execution or
purported proper execution of any of its or his trusts,
powers, authorities and discretions under these presents or
any other Master Issuer Transaction Document or its or his
functions under any such appointment or in respect of any
other matter or thing done or omitted in any way relating to
these presents or any other Master Issuer Transaction Document
or any such appointment save to the extent that the same
arises as a result of wilful default, wilful misconduct, fraud
or breach of trust on the part of the Note Trustee. The Note
Trustee shall use reasonable endeavours to keep the Master
Issuer informed of the progress of any claims against the Note
Trustee;
(m) CONSENT OR APPROVAL: any consent or approval given by the Note
Trustee for the purposes of these presents or the Master
Issuer Notes may be given on such terms and subject to such
conditions (if any) as the Note Trustee thinks fit (acting
reasonably) and notwithstanding anything to the contrary in
these presents or the Master Issuer Notes may be given
retrospectively;
(n) NO DISCLOSURE OBLIGATION: unless and to the extent ordered so
to do by a court of competent jurisdiction, the Note Trustee
shall not be required to disclose to any Noteholder any
information (including, without limitation, information of a
confidential, financial or price sensitive nature) made
available to the Note Trustee
28
by the Master Issuer or any other person in connection with
these presents or any other Transaction Document and no
Noteholder shall be entitled to take any action to obtain from
the Note Trustee any such information;
(o) CURRENCY CONVERSION: where it is necessary or desirable for
any purpose in connection with these presents to convert any
sum from one currency to another it shall be converted (unless
otherwise provided by these presents or required by law) 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 agreed by the Note Trustee in consultation with the
Master Issuer and any rate, method and date so agreed shall be
binding on the Master Issuer and the Noteholders;
(p) CERTIFICATE IN RESPECT OF MATERIAL PREJUDICE: the Note Trustee
may certify whether or not any of the conditions, events and
acts set out in Condition 9 (each of which conditions, events
and acts shall, unless the Note Trustee in its absolute
discretion shall otherwise determine, for all the purposes of
these presents be deemed to include the circumstances
resulting therein and the consequences resulting therefrom) is
in its opinion materially prejudicial to the interests of the
Noteholders of the relevant Series and/or Class or Classes and
any such certificate shall be conclusive and binding upon the
Master Issuer and the Noteholders;
(q) DETERMINATION BY NOTE TRUSTEE: the Note Trustee as between
itself and the Noteholders may determine all questions and
doubts arising in relation to any of the provisions of this
Deed. Every such determination, whether or not relating in
whole or in part to the acts or proceedings of the Note
Trustee, shall be conclusive and shall bind the Note Trustee
and the Noteholders;
(r) INTERESTS OF NOTEHOLDERS: in connection with the exercise or
execution by the Note Trustee of any of its trusts, duties,
rights, powers, authorities and discretions under these
presents and the other Transaction Documents:
(i) where it is required to have regard to the interests
of the Noteholders of any Class, it shall have regard
to the interests of such Noteholders as a class and,
in particular but without prejudice to the generality
of the foregoing, shall not have regard to, or be in
any way liable for, the consequences of any exercise
thereof for individual Noteholders of any Series or
Class resulting from their being for any purpose
domiciled or resident in, or otherwise connected with,
or subject to the jurisdiction of, any particular
territory, and the Note Trustee shall not be entitled
to require, nor shall any Noteholder be entitled to
claim, from the Master Issuer or any other person, any
indemnification or payment in respect of any tax
consequence of any such exercise upon individual
Noteholders;
(ii) except where expressly provided otherwise, it shall
have regard to the interests of the Class A
Noteholders, the Class B Noteholders, the Class M
Noteholders, the Class C Noteholders and the Class D
Noteholders equally PROVIDED THAT (A) if in the
opinion of the Note Trustee there is a conflict
between the interests of the Class A Noteholders, on
the one hand and the interests of the Class B
Noteholders and/or the Class M Noteholders and/or the
Class C Noteholders and/or the Class D Noteholders on
the other hand, the Note Trustee shall have regard
only to the interests of the Class A Noteholders; (B)
if in the opinion of the Note Trustee there is a
conflict between the interests of the Class B
Noteholders on the one hand and the Class M
Noteholders and/or the Class C Noteholders and/or the
Class D
29
Noteholders on the other hand, the Note Trustee shall
have regard only to the interests of the Class B
Noteholders; (C) if in the opinion of the Note Trustee
there is a conflict between the interests of the Class
M Noteholders on the one hand and/or the Class C
Noteholders and/or the Class D Noteholders on the
other hand, the Note Trustee shall have regard only to
the interests of the Class M Noteholders, and (D) if
in the opinion of the Note Trustee there is a conflict
between the interests of the Class C Noteholders on
the one hand and the Class D Noteholders on the other
hand, the Note Trustee shall have regard only to the
interests of the Class C Noteholders, but so that this
proviso shall not apply in the case of powers,
authorities or discretions in relation to which it is
expressly stated that they may be exercised by the
Note Trustee only if in its opinion the interests of
all the Noteholders would not be materially prejudiced
thereby; and
(iii) it shall not have regard to, or be in any way liable
for, the consequences of any exercise thereof for any
other Master Issuer Secured Creditor or any other
person;
(s) RATING CONFIRMATION: notwithstanding that none of the Note
Trustee and the Noteholders may have any right of recourse
against the Rating Agencies in respect of any confirmation
given by them and relied upon by the Note Trustee pursuant to
Condition 2.2, the Note Trustee shall be entitled to assume,
for the purpose of exercising any right, power, trust,
authority, duty or discretion under or in relation to the
Master Issuer Notes, these presents or any other Transaction
Document, that such exercise will not be materially
prejudicial to the interests of the Noteholders (or any Series
and/or Class thereof) if the Rating Agencies have confirmed
that the then current ratings of the applicable Series and/or
Class or Classes of Master Issuer Notes would not be adversely
affected by such exercise;
(t) CERTIFICATE OF PRINCIPAL AMOUNT OUTSTANDING: the Note Trustee
may call for any certificate or other document to be issued by
DTC, Euroclear or Clearstream, Luxembourg as to the Principal
Amount Outstanding of Master Issuer Notes represented by a
Global Master Issuer Note standing to the account of any
person. Any such certificate or other document shall be
conclusive and binding for all purposes. The Note Trustee
shall not be liable to any person by reason of having accepted
as valid or not having rejected any certificate or other
document to such effect purporting to be issued by DTC,
Euroclear or Clearstream, Luxembourg and subsequently found to
be forged or not authentic;
(u) PROFESSIONAL CHARGES: any trustee of these presents being a
lawyer, accountant, broker or other person engaged in any
profession or business shall be entitled to charge and be paid
all usual professional and other charges for business
transacted and acts done by him or his firm in connection with
the trusts of these presents and also his reasonable charges
in addition to disbursements for all other work and business
done and all time spent by him or his firm in connection with
matters arising in connection with these presents;
(v) Power of Attorney: the Note Trustee may whenever it thinks fit
(acting reasonably) delegate by power of attorney or otherwise
to any person or persons or fluctuating body of persons
(whether being a joint trustee of these presents or not) all
or any of its trusts, powers, authorities and discretions
under these presents. Such delegation may be made upon such
terms (including power to sub-delegate) and subject to such
conditions and regulations as the Note Trustee may in the
interests of the Noteholders think fit. The Note Trustee shall
not be under any obligation to
30
supervise the proceedings or acts of any such delegate or
sub-delegate or be in any way responsible for any liability
incurred by reason of any misconduct or default on the part of
any such delegate or sub-delegate (except where such delegate
or sub-delegate is an affiliate, associate or otherwise
connected with the Note Trustee). The Note Trustee shall
within a reasonable time after any such delegation or any
renewal, extension or termination thereof give notice thereof
to the Master Issuer;
(w) Delegation: the Note Trustee may in the conduct of the trusts
of these presents instead of acting personally employ and pay
an agent (whether being a lawyer or other professional person)
to transact or conduct, or concur in transacting or
conducting, any business and to do, or concur in doing, all
acts required to be done in connection with these presents.
The Note Trustee shall not be in any way responsible for any
liability incurred by reason of any misconduct or default on
the part of any such agent or be bound to supervise the
proceedings or acts of any such agent;
(x) Ratings: the Note Trustee shall have no responsibility for the
maintenance of any rating of any of the Master Issuer Notes by
the Rating Agencies or any other person;
(y) Advances and Supervision: nothing contained in these presents
shall impose any obligation on the Note Trustee to make any
advance to Funding or the Master Issuer to supervise the
performance by any Reference Bank or any other person of its
obligations pursuant to any of the Master Issuer Transaction
Documents and the Note Trustee shall be entitled to assume, in
the absence of express notice pursuant to this Deed to the
contrary, that such person is properly performing such
obligations;
(z) No Requirement to Perform Illegal Acts, etc.: no provision of
these presents shall:
(i) require the Note 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 these presents,
any other Transaction Document or the Master Issuer
Notes (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; or
(ii) require the Note Trustee, and the Note Trustee shall
not be bound, to do anything which may cause it to
expend or risk its own funds or otherwise incur any
Liability in the performance of any of its duties or
in the exercise of any of its rights, powers,
authorities or discretions or otherwise in connection
with these presents or any other Transaction Document
(including, without limitation, forming any opinion or
employing any such person as is referred to in
sub-clause 16(a)), if it shall believe that repayment
of such funds is not assured to it or it is not
indemnified to its satisfaction against such Liability
and, for this purpose, the Note Trustee may demand
prior to taking any such action, that there be paid to
it in advance such sums as it considers (without
prejudice to any further demand) shall be sufficient
so to indemnify it;
(aa) Responsibility for Reports etc.: the Note Trustee has no
responsibility to verify or monitor the contents of, or (if
applicable) to check any calculations contained in, any
reports, information, documents, Officers' Certificate and
Opinions of Counsel
31
delivered to the Note Trustee in accordance with sub-clauses
14(cc), (dd) or (ff) or Clause 27 and Clause 28, and is under
no obligation to inform Noteholders of the contents of any
such reports, information, documents, Officers' Certificate
and Opinions of Counsel, other than allowing Noteholders upon
reasonable notice, to inspect such reports, information,
documents, Officers' Certificate and Opinions of Counsel;
(bb) Experts' Reports and Certificates: any advice, opinion,
certificate or report of the Auditors or any person referred
to in sub-clause 16(a) called for by or provided to the Note
Trustee whether or not addressed to the Note Trustee in
accordance with or for the purposes of these presents may be
relied upon by the Note Trustee as sufficient evidence of the
facts stated therein notwithstanding that such advice,
opinion, certificate or report and/or any engagement letter or
other document entered into by the Note Trustee in connection
therewith contains a monetary or other limit on the liability
of the Auditors or such persons in respect thereof;
(cc) Limitation of Liability: subject to Clause 17, and save as
required for the purposes of the Trust Indenture Act, the Note
Trustee shall not be responsible for the genuineness,
validity, effectiveness or suitability of any of the
Transaction Documents or any other documents entered into in
connection therewith or any other document or any obligation
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 thereby or pursuant
thereto, 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 decisions of any court and (without prejudice to the
generality of the foregoing) the Note Trustee shall not have
any responsibility for or have any duty to make any
investigation in respect of or in any way be liable whatsoever
for:
(i) the nature, status, creditworthiness or solvency of
the Master Issuer or Funding or any other person or
entity who has at any time provided any security or
support whether by way of guarantee, charge or
otherwise in respect of any advance made to the Master
Issuer;
(ii) the execution, delivery, legality, validity, adequacy,
admissibility in evidence or enforceability of any
Transaction Document or any other document entered
into in connection therewith;
(iii) the title, ownership, value, sufficiency,
enforceability or existence of any Master Issuer
Charged Property or any security (howsoever described)
relating thereto;
(iv) the registration, filing, protection or perfection of
any security (howsoever described) relating to the
Master Issuer Charged Property or the priority of the
security (howsoever described) thereby created whether
in respect of any initial advance or any subsequent
advance or any other sums or liabilities;
(v) the scope or accuracy of any representations,
warranties or statements made by or on behalf of the
Master Issuer or Funding or any other person or entity
who has at any time provided the same in any
Transaction Document or in any document entered into
in connection therewith;
(vi) the performance or observance by the Master Issuer or
Funding or any other person of any provisions of any
Transaction Document or any document
32
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 howsoever described contained therein or
any waiver or consent which has at any time been
granted in relation to any of the foregoing;
(vii) 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 any Master Issuer Charged Property or
Transaction Document;
(viii) the title of the Master Issuer to any Master Issuer
Charged Property;
(ix) the suitability, adequacy or sufficiency of any
applicable criteria for any advances under the Master
Intercompany Loan Agreement or the legality or
recoverability or enforceability thereof or the
priority of any security (howsoever described) in
relation thereto;
(x) the failure by the Master Issuer to obtain or comply
with any licence, consent or other authority in
connection with the Master Issuer Charged Property or
the Transaction Documents or the making of any
advances in connection therewith or the failure to
effect or procure registration of or to give notice to
any person in relation to or otherwise protect the
security (howsoever described) created or purported to
be created by or pursuant to any of the Master Issuer
Charged Property or the Transaction Documents or other
documents entered into in connection therewith;
(xi) the failure to call for delivery of documents of title
to or require any transfers, legal mortgages, standard
securities, charges or other further assurances in
relation to any of the assets that are the subject
matter of any of the Transaction Documents or any
other document;
(xii) any assets comprised in the security (howsoever
described) created by the Master Issuer Deed of
Charge, or any deeds or documents of title thereto,
being uninsured or inadequately insured or being held
by or to the order of other parties to the Transaction
Documents, clearing organisations or their operators
or by intermediaries such as banks, brokers,
depositories, warehousemen or other similar persons
whether or not on behalf of the Note Trustee;
(xiii) any accounts, books, records or files maintained by
the Master Issuer or any other person in respect of
any of the Master Issuer Charged Property or
Transaction Documents; or
(xiv) any other matter or thing relating to or in any way
connected with any Master Issuer Charged Property or
any Transaction Document or any document entered into
in connection therewith whether or not similar to the
foregoing; and
(dd) Reports by Note Trustee to Noteholders: if required by Section
313(a) of the Trust Indenture Act, within 60 days after 31
December of any year, commencing 31 December 2007 following
the date of this Deed, the Note Trustee shall deliver to each
Noteholder a brief report dated as of such 31 December that
complies with that Section. The Note Trustee shall also comply
with Section 313(b), (c) and (d) of the
33
Trust Indenture Act. Reports delivered pursuant to this Clause
16(dd) shall be sent in accordance with Clause 25;
(ee) Preferential Collection of Claims Against the Ninth Issuer:
the Note Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Note Trustee who
has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent indicated
therein. The provisions of Section 311 of the Trust Indenture
Act shall apply to the Master Issuer as the obligor of the
Master Issuer Notes; and
(ff) Attestation and Compliance Certificates: on or before March 15
of each calendar year in which the Depositor is required to
file reports with respect to the Issuing Entity in accordance
with the Exchange Act and the rules and regulations of the
Commission, beginning with March 15, 2008, the Trustee shall
deliver to the Depositor a report regarding its assessment of
compliance with the relevant servicing criteria applicable to
the Trustee, as identified on Appendix 1 hereto, as of and for
the period ending the end of the fiscal year ending no later
than December 31 of the year prior to the year of delivery of
the report. Each such report shall include (a) a statement of
the party's responsibility for assessing compliance with the
relevant servicing criteria applicable to such party, (b) a
statement that such party used the criteria identified in Item
1122(d) of Regulation AB ([SECTION]229.1122(d)) to assess
compliance with the relevant servicing criteria, (c)
disclosure of any material instance of noncompliance
identified by such party and (d) a statement that a registered
public accounting firm has issued an attestation report on
such party's assessment of compliance with the relevant
servicing criteria.
17. NOTE TRUSTEE'S LIABILITY
None of the provisions of these presents shall, in any case in which
the Note Trustee has failed to show the degree of care and diligence
required of it as trustee of these presents, having regard to the
provisions of these presents and any of the other Transaction
Documents to which the Note Trustee is a party conferring on the Note
Trustee any powers, authorities or discretions, relieve or indemnify
the Note Trustee against any liabilities which by virtue of any rule
of law would otherwise attach to it in respect of any wilful default,
wilful misconduct, breach of duty, negligence or breach of trust of
which it may be guilty in relation to its duties under these presents.
18. NOTE TRUSTEE CONTRACTING WITH THE MASTER ISSUER
Neither the Note Trustee nor any director or officer or holding
company or associated company of a corporation acting as a trustee
under these presents shall by reason of its or his fiduciary position
be in any way precluded from:
(a) entering into or being interested in any contract or financial
or other transaction or arrangement with the Master Issuer or
any other party to the Transaction Documents or any person or
body corporate associated with the Master Issuer or any other
party to the Transaction Documents (including without
limitation any contract, transaction or arrangement of a
banking or insurance nature or any contract, transaction or
arrangement in relation to the making of loans or the
provision of financial facilities or financial advice to, or
the purchase, placing or underwriting of or the subscribing or
procuring subscriptions for or otherwise acquiring, holding or
dealing with, or acting as paying agent in respect of, the
Master Issuer Notes or any other notes, bonds, stocks, shares,
debenture stock, debentures or other securities of, the Master
34
Issuer or any other party to the Transaction Documents or any
person or body corporate associated as aforesaid); or
(b) accepting or holding the trusteeship of any other trust deed
constituting or securing any other notes issued by or relating
to the Master Issuer or any other party to the Transaction
Documents or any such person or body corporate so associated
or any other office of profit under the Master Issuer or any
other party to the Transaction Documents or any such person or
body corporate so associated,
and shall be entitled to exercise and enforce its rights, comply with
its obligations and perform its duties under or in relation to any
such contract, transaction or arrangement as is referred to in (a)
above or, as the case may be, any such trusteeship or office of profit
as is referred to in (b) above without regard to the interests of the
Noteholders and notwithstanding that the same may be contrary or
prejudicial to the interests of the Noteholders and shall not be
responsible for any liability occasioned to the Noteholders thereby
and shall be entitled to retain and shall not be in any way liable to
account for any profit made or share of brokerage or commission or
remuneration or other amount or benefit received thereby or in
connection therewith.
Where any holding company, subsidiary or associated company of the
Note Trustee or any director or officer of the Note Trustee acting
other than in such capacity as director or officer has any
information, the Note Trustee shall not thereby be deemed also to have
knowledge of such information and, unless it shall have express notice
pursuant to this Deed of such information, shall not be responsible
for any loss suffered by Noteholders resulting from the Note Trustee's
failing to take such information into account in acting or refraining
from acting under or in relation to these presents.
19. WAIVER, AUTHORISATION AND DETERMINATION
19.1 Modification
(a) Subject to sub-clause 19.4 below, the Note Trustee may without the
consent or sanction of the Noteholders at any time and from time to
time:
(i) concur with the Master Issuer or any other person; or
(ii) direct the Master Issuer Security Trustee to concur with the
Master Issuer or any other person;
in making any modification (other than, in the case of (i) below, a
Basic Terms Modification (as defined in paragraph 5 of Schedule 4
hereto)) to these presents or any of the other Transaction Documents
which in the sole opinion of the Note Trustee it may be proper to make
PROVIDED THAT
(i) the Note Trustee is of the opinion that (A) such modifications
will not be materially prejudicial to the interests of the
Noteholders of any Class of any Series of Master Issuer Notes
and (B) such modifications will not be materially prejudicial
to the interests of the Master Issuer Swap Providers or, if it
is not of that opinion in relation to the Master Issuer Swap
Providers, the steps required pursuant to Clause 19.4(b) and
(c) have been taken and the Master Issuer Swap Providers have
consented in writing or have been deemed to have consented to
such modification; or
(ii) in the opinion of the Note Trustee such modification is to
correct a manifest or proven error established as such to the
satisfaction of the Note Trustee or is of a formal, minor or
technical nature or is to comply with the mandatory provisions
of law.
35
For the avoidance of doubt, the Note Trustee shall be entitled to
assume, without further investigation or inquiry, that such
modification will not be materially prejudicial to the interests of
the Noteholders if each of the Rating Agencies has confirmed in
writing that the then current ratings of the applicable Series and/or
Class/es of Master Issuer Notes would not be adversely affected by
such modification). Any such modification may be made on such terms
and subject to such conditions (if any) as the Note Trustee may
determine, shall be binding upon the Noteholders and, unless the Note
Trustee agrees otherwise, shall be notified by the Master Issuer to
the Noteholders and the Rating Agencies in accordance with Condition
14 as soon as practicable thereafter.
(b) Subject to sub-clause 19.4 below, the Note Trustee may also agree, or
direct the Master Issuer Security Trustee to agree, without the
consent of the Noteholders, to a change of the laws governing the
Master Issuer Notes and/or the Transaction Documents (and to any
consequential amendments deriving therefrom) PROVIDED THAT such change
and consequential amendments would not, in the opinion of the Note
Trustee, be materially prejudicial to the interests of the holders of
any Series or Class/es of Master Issuer Notes. For the avoidance of
doubt, the Note Trustees shall be entitled to assume, without further
investigation or inquiry, that such modification will not be
materially prejudicial to the interests of the Noteholders if each of
the Rating Agencies has confirmed in writing that the then current
ratings of the applicable Series and/or Class/es of Master Issuer
Notes would not be adversely affected by such modification). Any such
modification may be made on such terms and subject to such conditions
(if any) as the Note Trustee may determine, shall be binding upon the
Noteholders and, unless the Note Trustee agrees otherwise, shall be
notified by the Master Issuer to the Noteholders and the Rating
Agencies in accordance with Condition 14 as soon as practicable
thereafter.
19.2 Waiver and determination
(a) The provisions of this Clause 19.2 shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Deed
and the Master Issuer Notes, as permitted by the Trust Indenture Act).
Subject to paragraph (b) and sub-clause 19.4 below, below, the Note
Trustee may, without the consent or sanction of the Noteholders at any
time and from time to time:
(i) concur with the Master Issuer or any other person; or
(ii) direct the Master Issuer Security Trustee to concur with the
Master Issuer or any other person;
without prejudice to its right in respect of any further or other
breach, in waiving or authorising any breach or proposed breach by the
Master Issuer or any other party thereto of any of the covenants or
provisions contained in these presents or any of the other Transaction
Documents (other than a waiver or authorisation the subject of which
falls within the definition of a Basic Terms Modification (as defined
in paragraph 5 of Schedule 4 hereto)) from time to time and at any
time, PROVIDED THAT the Note Trustee is of the opinion that (A) such
waiver or authorisation will not be materially prejudicial to the
interests of the Noteholders of any Class of any Series of Master
Issuer Notes and (B) such waiver or authorisation will not be
materially prejudicial to the interests of the Master Issuer Swap
Providers or, if it is not of that opinion in relation to the Master
Issuer Swap Providers, the steps required pursuant to Clause 19.4(b)
and (c) have been taken and the Master Issuer Swap Providers have
consented in writing or have been deemed to have consented to such
authorisation or waiver, on such terms and conditions (if any) as
shall seem expedient to it.
36
For the avoidance of doubt, the Note Trustee shall be entitled to
assume, without further investigation or inquiry, that such waiver or
authorisation will not be materially prejudicial to the interests of
the Noteholders if each of the Rating Agencies has confirmed in
writing that the then current ratings of the applicable Series and/or
Class/es of Master Issuer Notes would not be adversely affected by
such modification).
PROVIDED ALWAYS THAT the Note Trustee shall not exercise any powers
conferred on it by this Clause 19.2(a) in contravention of any express
direction given by Extraordinary Resolution of any Class of any Series
of Master Issuer Notes or by a request under Condition 9 or Condition
10 but so that no such direction or request shall affect any waiver or
authorisation previously given or made. Any such waiver or
authorisation may be given or made on such terms and subject to such
conditions (if any) as the Note Trustee may determine, shall be
binding on the Noteholders and, if the Note Trustee shall so require,
shall be notified by the Master Issuer to the Noteholders and the
Rating Agencies in accordance with Condition 14 as soon as practicable
thereafter.
(b) The Note Trustee may, without the consent or sanction of the
Noteholders, at any time and from time to time determine that any Note
Event of Default shall not be treated as such for the purposes of
these presents provided that in its opinion the interests of the
holders of the most senior Class of any Series of Master Issuer Notes
then outstanding shall note be materially prejudiced thereby.
For the avoidance of doubt, the Note Trustee shall be entitled to
assume, without further investigation or inquiry, that such
determination will not be materially prejudicial to the interests of
the holders of the most senior Class of any Series of Master Issuer
Notes if each of the Rating Agencies has confirmed in writing that the
then current ratings of the applicable Series and/or Class/es of
Master Issuer Notes would not be adversely affected by such
determination). Any such determination may be given or made on such
terms and subject to such conditions (if any) as the Note Trustee may
determine, shall be binding on the Noteholders and, if the Note
Trustee shall so require, shall be notified by the Master Issuer to
the Noteholders and the Rating Agencies in accordance with Condition
14 as soon as practicable thereafter.
19.3 Consent
Subject to sub-clause 19.4 below, the Note Trustee may give, or direct
the Master Issuer Security Trustee to give, any consent or approval
for the purposes of these presents or any other Transaction Document
if, in its opinion, (A) the interests of the holders of any Class of
any Series of the Notes will not be materially prejudiced thereby and
(B) the interests of the Master Issuer Swap Providers will not be
materially prejudiced thereby. For the avoidance of doubt, the Note
Trustee shall not have any duty to the Noteholders in relation to such
matters other than that which is contained in this clause. Any such
consent or approval may be given on such terms and subject to such
conditions (if any) as the Note Trustee thinks fit and notwithstanding
anything to the contrary in these presents or any other Transaction
Document may be given retrospectively. For the avoidance of doubt, the
Note Trustee shall be entitled to assume, without further
investigation or inquiry, that such consent will not be materially
prejudicial to the interests of the Noteholders if each of the Rating
Agencies has confirmed in writing that the then current ratings of the
applicable Series and/or Class/es of Master Issuer Notes would not be
adversely affected by such consent.
19.4 Modifications affecting the Master Issuer Swap Providers
(a) In the event of a proposed waiver or authorisation of any breach or
proposed breach of any of the provisions of, or modification to, any
of the Transaction Documents in accordance with
37
sub-clause 19.1 or sub-clause 19.2, the Note Trustee will use its
reasonable endeavours to determine, within five Business Days of
receipt of details thereof, whether such proposed waiver,
authorisation or modification will, in its opinion, not be materially
prejudicial to the interests of any of the Master Issuer Swap
Providers.
(b) If the Note Trustee determines within the five Business Day period
referred to in paragraph (a) above that the proposed waiver,
authorisation or modification would not in its opinion, be materially
prejudicial to the interests of any of the Master Issuer Swap
Providers then the Note Trustee shall not be obliged to seek the
written consent of the Master Issuer Swap Providers thereto, or to
take any further action pursuant to this Clause 19.4.
(c) If the Note Trustee has not, within such period of five Business Days,
determined that such proposed waiver, authorisation or modification
would not, in its opinion, be materially prejudicial to the interests
of any of the Master Issuer Swap Providers, then the Note Trustee
shall give, as soon as is practicable, written notice to the relevant
Master Issuer Swap Providers (as appropriate), setting out the
relevant details and requesting its or their written consent thereto.
(d) Each of the relevant Master Issuer Swap Providers shall within ten
Business Days of receipt of the notice referred to in paragraph (c)
above (the Relevant Period) notify the Note Trustee of:
(i) its written consent (such consent not to be unreasonably
withheld or delayed) to such proposed waiver, authorisation or
modification; or
(ii) subject to paragraph (i), its refusal of such consent and
reasons for refusal (such refusal not to be unreasonably made
and to be considered in the context of the security position
of the relevant Master Issuer Swap Provider under this Deed).
Any failure by the relevant Master Issuer Swap Providers to notify the
Note Trustee as aforesaid within the Relevant Period shall be deemed
to be consent by the relevant Master Issuer Swap Providers (as
applicable) to such proposed waiver, authorisation or modification.
19.5 Modifications to any Funding Agreement or the Master Definitions and
Construction Schedule
(a) Without prejudice to (i) Clause 19.1, 19.2, 19.3 and 19.4 above; and
(ii) Clause 25.8 of the Funding Deed of Charge, subject to paragraph
(b) below, the Note Trustee shall be required to give its consent to
any modifications to any Funding Agreement or the Master Definitions
and Construction Schedule that are requested by Funding or the Cash
Manager, provided that Funding or the Cash Manager, as the case may
be, has certified to the Note Trustee in writing that such
modifications are required in order to accommodate:
(i) Master Issuer Notes to be issued and/or Master Issuer Term
Advances to be made available by the Master Issuer to Funding
under the Master Intercompany Loan Agreement;
(ii) the entry by Funding into New Intercompany Loan Agreements,
the issue of new types of notes by New Issuers or the issue of
notes by Funding directly;
(iii) the addition of other relevant Funding Secured Creditors to
the Transaction Documents;
(iv) the assignment of New Loans or their Related Security to the
Mortgages Trustee;
38
(v) amendments to the representations and warranties set out in
Schedule 1 of the Mortgage Sale Agreement;
(vi) changes to the Funding Reserve Fund Required Amount, the
Funding Liquidity Reserve Required Amount and/or the manner in
which the Funding Reserve Fund or the Funding Liquidity
Reserve Fund is funded; and/or
(vii) different Interest Payment Dates and/or Interest Periods for
any Master Issuer Notes to be issued by the Master Issuer
(including modification of the Interest Payment Dates and/or
Interest Periods and/or the basis for the calculation of
interest in respect of any outstanding Master Issuer Notes
and/or the Funding Interest Payment Dates and/or the Interest
Period and/or the basis for the calculation of interest in
respect of any outstanding Master Issuer Term Advances under
the Master Intercompany Loan Agreement).
(b) The Note Trustee shall only be required to make the modifications set
out in paragraph (a) above if the Note Trustee is satisfied that:
(i) in respect of the matter set out in paragraphs (a)(i) to (v),
the conditions precedent to:
(A) Master Issuer Notes being issued by the Master Issuer
and/or Master Issuer Term Advances being made
available to Funding (as set out in Condition 15 and
Clause 3 of the Master Intercompany Loan Agreement);
(B) New Notes being issued by New Issuers or by Funding
directly and/or New Intercompany Loans being made
available to Funding;
(C) the assignment of New Loans to the Mortgages Trustee
(as set out in Clause 4 of the Mortgage Sale
Agreement); and/or
(D) amending the representations and warranties set out in
Schedule 1 of the Mortgage Sale Agreement,
have been satisfied; and
(ii) in respect of the matters set out in paragraphs (a)(i) to
(a)(vii) inclusive, the Note Trustee has received written
confirmation from each of the Rating Agencies that the
relevant modifications will not result in a reduction,
qualification or withdrawal of the current ratings of the
Master Issuer Notes.
(c) Each Noteholder hereby acknowledges that the Note Trustee is required
to make the modifications set out in paragraph (a) above (subject to
paragraph (b)), and each Noteholder further acknowledges that such
modifications may adversely affect the manner in which the Mortgages
Trustee allocates monies to Funding and/or the amount of monies
available to Funding and to the Master Issuer to meet the Funding
Secured Liabilities and the Master Issuer Secured Liabilities. Each
Noteholder agrees that such modifications shall be binding on it and
unless the Note Trustee otherwise agrees, notice thereof shall be
given by the Master Issuer Cash Manager to the Noteholders as soon as
practicable after the modifications have been made.
19.6 Rating Agencies
So long as any of the Master Issuer Notes are rated by the Rating
Agencies, the Master Issuer shall notify the Rating Agencies in
writing as soon as reasonably practicable thereafter of any
39
modification to the provisions of these presents, the Master Issuer
Notes or any of the other Transaction Documents.
19.7 Breach
Any breach of or failure by the Master Issuer to comply with any such
terms and conditions as are referred to in sub-clauses 19.1, 19.2 and
19.3 shall constitute a default by the Master Issuer in the
performance or observance of a covenant or provision binding on it
under or pursuant to these presents.
20. ENTITLEMENT TO TREAT NOTEHOLDER AS ABSOLUTE OWNER
The Master Issuer, the Note Trustee, the Paying Agents, the Transfer
Agent and the Registrar may (to the fullest extent permitted by
applicable laws) deem and treat the registered holder of any Master
Issuer Note or of a particular principal amount of the Master Issuer
Notes as the absolute owner of such Master Issuer Note or principal
amount, as the case may be, for all purposes (whether or not such
Master Issuer Note or principal amount shall be overdue and
notwithstanding any notice of ownership thereof or of trust or other
interest with regard thereto, any notice of loss or theft thereof or
any writing thereon), and the Master Issuer, the Note Trustee, the
Paying Agents, the Transfer Agent and the Registrar shall not be
affected by any notice to the contrary. All payments made to any such
registered holder of a Definitive Note or Global Master Issuer Note
shall be valid and, to the extent of the sums so paid, effective to
satisfy and discharge the liability for the monies payable in respect
of such Master Issuer Note or principal amount, as the case may be.
21. CURRENCY INDEMNITY
The Master Issuer shall indemnify the Note Trustee, every appointee of
the Note Trustee and the Noteholders and keep them indemnified
against:
(a) any liability incurred by any of them arising from the
non-payment by the Master Issuer of any amount due to the Note
Trustee or the Noteholders under these presents by reason of
any variation in the rates of exchange between those used for
the purposes of calculating the amount due under a judgment or
order in respect thereof and those prevailing at the date of
actual payment by the Master Issuer; and
(b) any deficiency arising or resulting from any variation in
rates of exchange between (i) the date as of which the local
currency equivalent of the amounts due or contingently due
under these presents (other than this Clause 21) is calculated
for the purposes of any bankruptcy, insolvency or liquidation
of the Master Issuer and (ii) the final date for ascertaining
the amount of claims in such bankruptcy, insolvency or
liquidation. The amount of such deficiency shall be deemed not
to be reduced by any variation in rates of exchange occurring
between the said final date and the date of any distribution
of assets in connection with any such bankruptcy, insolvency
or liquidation.
The above indemnity (and the indemnities given by the Master Issuer in
sub-clause 15.5 and sub-clause 16(l)) shall constitute obligations of
the Master Issuer separate and independent from its obligations under
the other provisions of these presents and the Master Issuer Notes and
shall apply irrespective of any indulgence granted by the Note Trustee
or the Noteholders from time to time and shall continue in full force
and effect notwithstanding the judgment or filing of any proof or
proofs in any bankruptcy, insolvency or liquidation of the Master
Issuer for a liquidated sum or sums in respect of amounts due under
these presents (other than this Clause 21). Any such deficiency as
aforesaid shall be deemed to constitute a loss suffered by
40
the Noteholders and no proof or evidence of any actual loss shall be
required by the Master Issuer or its liquidator or liquidators.
22. ELIGIBILITY AND DISQUALIFICATION; NEW NOTE TRUSTEE
22.1 Eligibility and Disqualification
This Deed shall always have a Note Trustee which shall be eligible to
act as a note trustee under Sections 310(a)(1) and 310(a)(2) of the
Trust Indenture Act. The Note Trustee shall have a combined capital
and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. If the Note Trustee has or shall
acquire any "conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Note Trustee and the Master
Issuer shall comply with the provisions of Section 310(b) of the Trust
Indenture Act; provided, however, that there shall be excluded from
the operation of Section 310(b)(1) of the Trust Indenture Act any deed
or deeds under which other securities or certificates of interest or
participation in other securities of the Master Issuer are outstanding
if the requirements for such exclusion set forth in Section 310(b)(1)
of the Trust Indenture Act are met. If, at any time, the Note Trustee
shall cease to be eligible in accordance with the provisions of this
Clause 22.1, the Note Trustee shall resign promptly in the manner and
with the effect specified in Clause 23.
22.2 New Note Trustee
(a) Subject to paragraph (b) below, the power to appoint a new
trustee of these presents shall be vested in the Master Issuer
but no person shall be appointed who shall not previously have
been approved by an Extraordinary Resolution of the Class A
Noteholders, the Class B Noteholders, the Class M Noteholders,
the Class C Noteholders and the Class D Noteholders. One or
more persons may hold office as trustee or trustees of these
presents but such trustee or trustees shall be or include a
Trust Corporation. Whenever there shall be more than two
trustees of these presents the majority of such trustees shall
be competent to execute and exercise all the duties, powers,
trusts, authorities and discretions vested in the Note Trustee
by these presents provided that a Trust Corporation shall be
included in such majority. Any appointment of a new trustee of
these presents shall as soon as practicable thereafter be
notified by the Master Issuer to the Principal Paying Agent,
the Transfer Agent, the Registrar, the Noteholders and the
Rating Agencies.
(b) Any new trustee must (i) meet the requirements of Section
26(a)(1) of the U.S. Investment Company Act of 1940; (ii) not
be an affiliate (as defined in Rule 405 of the Securities Act)
of the Master Issuer or of any person involved in the
organisation or operation of the Master Issuer; (iii) not
offer or provide credit or credit enhancement to the Master
Issuer; and (iv) execute an agreement or instrument concerning
the Master Issuer Notes containing provisions to the effect
set forth in Section 26(a)(3) of the U.S. Investment Company
Act of 1940.
22.3 Separate and Co-Trustees
Notwithstanding the provisions of sub-clause 22.2 above, the Note
Trustee may, upon giving prior notice to the Master Issuer (but
without requiring the consent of the Master Issuer or the
Noteholders), appoint any person established or resident in any
jurisdiction (whether a Trust Corporation or not) to act either as a
separate trustee or as a co-trustee jointly with the Note Trustee:
41
(a) if the Note Trustee considers such appointment to be in the
interests of the Noteholders;
(b) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction
or the enforcement in any jurisdiction of either a judgment
already obtained or any of the provisions of these presents or
any of the other Master Issuer Transaction Documents against
the Master Issuer or any other party thereto.
The Master Issuer irrevocably appoints the Note Trustee to be its
attorney in its name and on its behalf to execute any such instrument
of appointment. Such a person shall (subject always to the provisions
of these presents) have such trusts, powers, authorities and
discretions (not exceeding those conferred on the Note Trustee by
these presents) and such duties and obligations as shall be conferred
or imposed by the instrument of appointment. The Note Trustee shall
have power in like manner to remove any such person. Such reasonable
remuneration as the Note Trustee may pay to any such person, together
with any attributable costs, charges and expenses incurred by it in
performing its function as such separate trustee or co-trustee, shall
for the purposes of this Deed be treated as costs, charges and
expenses incurred by the Note Trustee.
23. NOTE TRUSTEE'S RETIREMENT AND REMOVAL
A trustee of this Deed may retire at any time on giving not less than
three months' prior written notice to the Master Issuer without giving
any reason and without being responsible for any costs incurred by
reason of such retirement. The Noteholders may by Extraordinary
Resolution of each Class of Noteholders remove any trustee or trustees
for the time being of these presents. The Master Issuer undertakes
that in the event of the only trustee of these presents which is a
Trust Corporation giving notice under this Clause or being removed by
Extraordinary Resolution of each Class of Noteholders it will use its
best endeavours to procure that a new trustee of these presents being
a Trust Corporation is appointed as soon as reasonably practicable
thereafter. The retirement or removal of any such trustee shall not
become effective until a successor trustee being a Trust Corporation
is appointed. If a successor trustee being a Trust Corporation has not
been appointed within two months after the date of the notice of
retirement of the Note Trustee, then the retiring Note Trustee may
appoint its own successor trustee being a Trust Corporation.
24. NOTE TRUSTEE'S POWERS TO BE ADDITIONAL
The powers conferred upon the Note Trustee by these presents shall be
in addition to any powers which may from time to time be vested in the
Note Trustee by the general law or as a holder of any of the Master
Issuer Notes.
25. NOTICES
25.1 Any notice or demand to the Master Issuer or the Note Trustee to be
given, made or served for any purposes under these presents shall be
given, made or served by sending the same by pre-paid post (first
class if inland, first class airmail if overseas) or facsimile
transmission or by delivering it by hand to:
(a) Master Issuer:
▇▇▇▇▇▇ Master Issuer PLC
42
c/o Abbey House (AAM 129)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: Securitisation Team, Retail Credit Risk
Facsimile: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
(b) Note Trustee:
The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: Global Structured Finance - Corporate
Trust Facsimile: + ▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
or to such other address or facsimile number as shall have been
notified (in accordance with this Clause) to the other party hereto
and any notice or demand sent by post as aforesaid shall be deemed to
have been given, made or served three days in the case of inland post
or seven days in the case of overseas post after despatch and any
notice or demand sent by facsimile transmission as aforesaid shall be
deemed to have been given, made or served on report of successful
transmission.
25.2 Communications by Noteholders with Other Noteholders
Noteholders may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Noteholders with respect to their rights
under this Deed or the Master Issuer Notes. The Master Issuer, the
Note Trustee, the Principal Paying Agent, the Registrar and anyone
else shall have the protection of Section 312(c) of the Trust
Indenture Act.
25.3 Notices to Noteholders
Any notice or communication mailed to Noteholders hereunder shall be
transmitted by mail:
(a) to all holders of Definitive Notes, as the names and addresses
of such Noteholders appear upon the Register; and
(b) to such other Noteholders as have, within the two years
preceding such transmission, filed their names and addresses
with the Note Trustee for that purpose.
26. RIGHTS OF THIRD PARTIES
A person who is not a party to this Deed has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Deed, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
27. CERTIFICATES AND OPINIONS
27.1 Certificate and Opinions as to Conditions Precedent
Upon any request or application by the Master Issuer to the Note
Trustee to take any action under this Deed, the Master Issuer shall
furnish to the Note Trustee:
43
(a) an Officers' Certificate (which shall include the statements
set forth in sub-clause 27.2 below) stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Deed or required by the Note Trustee
pursuant to the terms of this Deed relating to the proposed
action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in sub-clause 27.2 below) stating that, in the opinion
of such counsel, all such conditions precedent, if any,
provided for in this Deed or required by the Note Trustee
pursuant to the terms of this Deed relating to the proposed
action have been complied with.
27.2 Statements Required in Certificate and Opinion
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Deed shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition and the definitions
relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has
made such examination or investigation as is necessary to
enable such person to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether or not, in the opinion of such
person, such covenant or condition has been complied with.
28. RELEASE OF COLLATERAL
Except to the extent expressly provided in this Clause 28, the Note
Trustee shall release property from the security constituted by the
Master Issuer Deed of Charge only upon receipt of a request from the
Master Issuer accompanied by an Officers' Certificate, an Opinion of
Counsel and certificates of independent parties in accordance with
Sections 314(c) and 314(d)(1) of the Trust Indenture Act (Independent
Certificates) or an Opinion of Counsel in lieu of such Independent
Certificates to the effect that the Trust Indenture Act does not
require any such Independent Certificates.
Prior to the release of any property or securities subject to the lien
of the Master Issuer Deed of Charge, the Master Issuer shall, in
addition to any obligation imposed in this Clause 28 or elsewhere in
this Deed, furnish to the Note Trustee an Officers' Certificate
certifying or stating the opinion of each person signing such
certificate as to the fair value to the Master Issuer of the property
or securities to be so released. The officers so certifying may
consult with, and may conclusively rely upon a certificate as to the
fair value of such property provided to such officers by an
internationally recognised financial institution with expertise in
such matters.
Whenever the Master Issuer is required to furnish to the Note Trustee
an Officers' Certificate certifying or stating the opinion of any
signer thereof as to the matters described in the preceding paragraph,
the Master Issuer shall also deliver to the Note Trustee an
Independent Certificate as to the same matters, if the fair value to
the Master Issuer of the property to be so released and of all other
such property made the basis of any such release since the
44
commencement of the then current fiscal year of the Master Issuer, as
set forth in the certificates delivered pursuant to this Clause 28, is
10 per cent. or more of the Principal Amount Outstanding of the Master
Issuer Notes, but such a certificate need not be furnished with
respect to any property so released if the fair value thereof to the
Master Issuer as set forth in the related Officers' Certificate is
less than $25,000 or less than one per cent. of the Principal Amount
Outstanding of the Master Issuer Notes.
Whenever any property is to be released from the security constituted
by the Master Issuer Deed of Charge, the Master Issuer shall also
furnish to the Note Trustee an Officer's Certificate certifying or
stating the opinion of each person signing such certificate that in
the opinion of such person the proposed release will not impair the
security under this Deed in contravention of the provisions hereof.
Notwithstanding anything to the contrary contained herein, the Master
Issuer may (a) make cash payments out of the Master Issuer Accounts
relating to the Master Issuer Notes as and to the extent permitted or
required by the Transaction Documents and (b) take any other action
not inconsistent with the Trust Indenture Act.
29. GOVERNING LAW
These presents and the Master Issuer Notes are governed by, and shall
be construed in accordance with, English law.
30. COUNTERPARTS
This Deed and any trust deed supplemental hereto may be executed and
delivered in any number of counterparts, all of which, taken together,
shall constitute one and the same deed and any party to this Deed or
any trust deed supplemental hereto may enter into the same by
executing and delivering a counterpart.
31. 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
inconvenient forum for the maintenance or hearing of such action or
proceeding.
32. 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 Trust Indenture
Act, the required provision of the Trust Indenture Act shall prevail.
IN WITNESS WHEREOF this Deed has been executed as a deed by the Master Issuer
and the Note Trustee and delivered on the date first stated on page 1.
45
SCHEDULE 1
FORMS OF GLOBAL MASTER ISSUER NOTES
SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] [RULE 144A/REG S/SEC-REGISTERED]
GLOBAL MASTER ISSUER NOTE
[ISIN: [*]]
[CUSIP: [*]]
[Common Code: [*]]
[THIS NOTE IS ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.]*
[THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THE
NOTES AND THE CLOSING OF THE OFFERING OF THE NOTES, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES.
]**
________________________________________
* To appear only on the Rule 144A Global Master Issuer Notes.
** To appear only on the Reg S Global Master Issuer Notes
46
▇▇▇▇▇▇ MASTER ISSUER PLC
(Incorporated with limited liability in England and Wales with registered
number 5953811)
SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] [RULE 144A/REG S/SEC-REGISTERED] GLOBAL
MASTER ISSUER NOTE
representing up to
[*] Series [*] Class [A]/[B]/[M]/[C]/[D] Mortgage-Backed Floating Rate Notes
due [*]
(Initial aggregate principal amount of Series [*] Class [A]/[B]/[M]/[C]/[D]
Global Master Issuer Notes: [*])
This Series [*] Class [A]/[B]/[M]/[C]/[D] Global Master Issuer Note is issued
without principal or interest coupons in respect of a duly authorised issue of
Series [*] Class [A]/[B]/[M]/[C]/[D] Notes of ▇▇▇▇▇▇ Master Issuer PLC (the
Issuer), designated as specified in the title hereof (the Notes), limited to
the aggregate principal amount of up to [*] [U.S. dollars/euro/pounds sterling]
([US$/[EURO]/[POUND]][*]) and constituted by a Master Issuer Trust Deed dated
28 November 2006 as amended and restated on 28 March 2007 and as may be further
amended, restated, varied or supplemented from time to time (the Master Issuer
Trust Deed) between the Issuer and The Bank of New York, London Branch as
trustee (the trustee for the time being thereof being herein called the Note
Trustee). References herein to the Conditions (or to any particular numbered
Condition) shall be to the Conditions (or that particular one of them) set out
in Schedule 4 to the Master Issuer Trust Deed. Terms used but not defined
herein have the meanings ascribed to them in the amended and restated master
definitions and construction schedule signed for the purposes of identification
by ▇▇▇▇▇ & Overy LLP and ▇▇▇▇▇▇▇▇▇ and May on 28 March 2007 (the Further
Amended and Restated Master Definitions and Construction Schedule) and the
master issuer master definitions and construction schedule, signed for the
purposes of identification by ▇▇▇▇▇ & Overy LLP and ▇▇▇▇▇▇▇▇▇ and May on 28
March 2007 (the Amended and Restated Master Issuer Master Definitions and
Construction Schedule) (each as may be amended, restated, varied or
supplemented from time to time in accordance with the terms thereof), and the
Master Issuer Trust Deed and this Global Master Issuer Note shall be construed
in accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule and Clause 2
of the Master Issuer Master Definitions and Construction Schedule. The
aggregate principal amount from time to time of this Global Master Issuer Note
shall be that amount not exceeding [US$/[EURO]/[POUND]][*] as shall be shown by
the latest entry duly made in the Schedule hereto.
This is to certify that:
[Cede & Co. as nominee on behalf of The Depository Trust Company (DTC)]* [The
Bank of New York (Depository) Nominees Limited as nominee on behalf of the
Common Depositary for both Euroclear and Clearstream, Luxembourg]** is/are the
duly registered holder(s) of one of the Series [*] Class [A]/[B]/[M]/[C]/[D]
Global Master Issuer Notes. This Global Master Issuer Note is evidence of
entitlement only. Title to this Global Master Issuer Note passes only on due
registration in the Register and only the registered holder is entitled to
payment in respect of this Global Master Issuer Note.
1. Promise to pay
Subject as provided in this Global Master Issuer Note, the Issuer
promises to pay to the registered holder hereof the principal amount
of this Global Master Issuer Note (being at the
________________________
* To appear only on the U.S. Global Master Issuer Notes.
** To appear only on the Reg S Global Master Issuer Notes.
47
date hereof [*] [U.S. dollars/euro/pounds sterling]
([US$/[EURO]/[POUND][*])) on the Interest Payment Date falling in [*]
(or on such earlier date as the said principal amount may become
repayable in accordance with the Conditions or the Master Issuer Trust
Deed) and to pay interest monthly or quarterly or semi-annually, as
the case may be, in arrear on each Interest Payment Date on the
principal amount from time to time of this Global Master Issuer Note
at the rates determined in accordance with the Conditions together
with such other amounts (if any) as may be payable, all subject to and
in accordance with the Conditions and the provisions of the Master
Issuer Trust Deed.
2. Exchange for Definitive Notes
This Global Master Issuer Note will be exchangeable (free of charge to
the holder) for Definitive Notes only if (a) [DTC has notified the
Issuer that it is at any time unwilling or unable to continue as
holder of this Global Master Issuer Note or is at any time unwilling
or unable to continue as, or ceases to be, a clearing agency under the
United States Securities Exchange Act of 1934, as amended (the
Exchange Act), and a successor to DTC registered as a clearing agency
under the Exchange Act is not able to be appointed by the Issuer
within 90 days of such notification]*[both Euroclear Bank S.A./N.V. as
operator of the Euroclear System (Euroclear) and Clearstream Banking,
societe anonyme (Clearstream, Luxembourg) are closed for business for
a continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) or announce an intention permanently to cease
business or do so and no alternative clearing system satisfactory to
the Note Trustee is then available]**, or (b) as a result of any
amendment to, or change in, the laws or regulations of the United
Kingdom (or of any political subdivision thereof), or of any authority
therein or thereof having power to tax, or in the interpretation or
administration by a revenue authority or a court or administration of
such laws or regulations which becomes effective on or after the
Closing Date, the Issuer or any Paying Agent is or will be required to
make any deduction or withholding from any payment in respect of the
Notes which would not be required were the relevant Notes in
definitive registered form. Thereupon the holder of this Global Master
Issuer Note (acting on the instructions of (a) holder(s) of (a)
Book-Entry Interest(s)) may give notice to the Issuer, and the Issuer
may give notice to the Note Trustee and the Noteholders, of its
intention to exchange this Global Master Issuer Note for [Rule
144A/Reg S/SEC-Registered] Definitive Notes on or after the Exchange
Date (as defined below).
On or after the Exchange Date, the holder of this Global Master Issuer
Note shall surrender this Global Master Issuer Note to or to the order
of the Registrar. In exchange for this Global Master Issuer Note the
Issuer will deliver, or procure the delivery of, Definitive Notes in
registered form in denominations of
[US$100,000][[EURO]50,000][[POUND]100,000] each, plus integral
multiples of [US$1,000][[EURO]1,000][[POUND]1,000], or in such other
denominations as the Note Trustee shall determine (which must be
higher than [US$100,000][[EURO]50,000][[POUND]100,000]) and notify to
the relevant Noteholders, in exchange for the whole of this Global
Master Issuer Note.
Exchange Date means a day specified in the notice requiring exchange
falling not more than 60 days after that on which such notice is given
and on which banks are open for business in the city in which the
specified office of the Registrar is located and in the city in which
the relevant clearing system is located.
Upon the exchange or purchase and cancellation of a part of this
Global Master Issuer Note in accordance with the Master Issuer Trust
Deed, the Conditions and the Master Issuer Paying Agent and Agent Bank
Agreement, the portion of the principal amount hereof so exchanged or
cancelled shall be endorsed by or on behalf of the Registrar on behalf
of the Issuer on Part II of the Schedule hereto, whereupon the
principal amount hereof shall be increased or, as the case may be,
reduced for all purposes by the amount so exchanged or cancelled and
endorsed. Upon the exchange of the whole of this Global Master Issuer
Note for Definitive Notes, this
48
Global Master Issuer Note shall be surrendered to or to the order of
the Registrar and cancelled and, if the holder of this Global Master
Issuer Note requests, returned to it together with the relevant
Definitive Notes.
3. Payments
Until the entire principal amount of this Global Master Issuer Note
has been extinguished, this Global Master Issuer Note shall be
entitled to the benefit of and be bound by the Conditions, the Master
Issuer Trust Deed and the Master Issuer Deed of Charge. Payments of
principal and interest in respect of Notes represented by this Global
Master Issuer Note will be made in accordance with the Conditions.
Upon any payment of principal or interest on this Global Master Issuer
Note the amount so paid shall be endorsed by or on behalf of the
Registrar on behalf of the Issuer on Part I of the Schedule hereto.
Upon any payment of principal and endorsement of such payment on Part
I of the Schedule hereto, the principal amount of this Global Master
Issuer Note shall be reduced for all purposes by the principal amount
so paid and endorsed.
All payments of any amounts payable and paid to the registered holder
of this Global Master Issuer Note shall be valid and, to the extent of
the sums so paid, effectual to satisfy and discharge the liability for
the monies payable hereon.
4. [DTC
References herein to DTC shall be deemed to include references to any
other clearing system approved by the Note Trustee.]1
[Euroclear and Clearstream, Luxembourg
References herein to Euroclear and/or Clearstream, Luxembourg shall be
deemed to include references to any other clearing system approved by
the Note Trustee.]2
5. [Tax treatment
The Issuer will treat this Global Master Issuer Note as indebtedness
for U.S. federal income tax purposes. Each Holder, by the acceptance
hereof, agrees to treat this Note for U.S. federal income tax purposes
as indebtedness.]3
6. Authentication
This Global Master Issuer Note shall not be or become valid or
obligatory for any purpose unless and until authenticated by or on
behalf of the Principal Paying Agent.
7. Governing law
This Global Master Issuer Note is governed by, and shall be construed
in accordance with, the laws of England and the Issuer has in the
Master Issuer Trust Deed submitted to the non-exclusive jurisdiction
of the courts of England for all purposes in connection with this
Global Master Issuer Note.
__________________________
1 To appear only on the U.S. Global Master Issuer Notes
2 To appear only on the Reg S Global Master Issuer Notes
3 To appear only on the U.S. Global Master Issuer Notes representing U.S. Notes
that are specified in the applicable Final Terms as debt for U.S. federal
income tax purposes.
49
8. Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
No rights are conferred on any person under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this Global Master
Issuer Note, but this does not affect any right or remedy of any
person which exists or is available apart from that Act.
IN WITNESS whereof the Issuer has caused this Global Master Issuer Note to be
signed manually or in facsimile by a person duly authorised on its behalf.
▇▇▇▇▇▇ MASTER ISSUER PLC
By: ...........................
(Duly authorised)
Issued in London, England on 28 March 2007.
Certificate of authentication
This Global Master Issuer Note is duly authenticated
without recourse, warranty or liability.
...............................
Duly authorised
for and on behalf of
THE BANK OF NEW YORK, LONDON BRANCH
as Principal Paying Agent
50
SCHEDULE
PART I
PAYMENTS OF PRINCIPAL AND INTEREST
The following payments on this Global Master Issuer Note have been made:
Remaining
principal amount
of this Global
Master Issuer Notation made
Note following on behalf of
Date Made Interest Paid Principal Paid such payment the Master
Issuer
[Specified [Specified [Specified
Currency] Currency] Currency]
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
51
PART II
EXCHANGES,
PURCHASES AND CANCELLATIONS
The following exchanges for Definitive Notes and purchases and cancellations of
a part of this Global Master Issuer Note have been made:
AGGREGATE
PRINCIPAL AMOUNT
PART OF PRINCIPAL PART OF PRINCIPAL FOLLOWING SUCH
AMOUNT AMOUNT EXCHANGE OR NOTATION MADE
EXCHANGED FO PURCHASED AND PURCHASE AND ON BEHALF OF THE
DATE MADE DEFINITIVE NOTES CANCELLED CANCELLATION MASTER ISSUER
[SPECIFIED [SPECIFIED [SPECIFIED
CURRENCY] CURRENCY] CURRENCY]
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
______________ ______________ ______________ ______________ ______________
52
SCHEDULE 2
FORM OF DEFINITIVE NOTES
SERIES [*] CLASS [A]/[B]/[M]/[C]/[D] DEFINITIVE MASTER ISSUER NOTE
-------------------------------------------------------------------------------
[PRINCIPAL AMOUNT [ISIN: ] [SERIES] [SERIAL NO.]
PER NOTE]
-------------------------------------------------------------------------------
[THIS NOTE IS ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE
MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.]*
[THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT) OR THE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO THE
DATE THAT IS 40 DAYS AFTER THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THE
NOTES AND THE CLOSING OF THE OFFERING OF THE NOTES, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN OR INTO THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES.
THIS NOTE (OR ANY INTEREST HEREIN) MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
DELIVERED AS PART OF ITS INITIAL DISTRIBUTION OR AT ANY TIME
-----------
* To appear only on the Rule 144A Definitive Notes.
53
THEREAFTER, DIRECTLY OR INDIRECTLY, TO INDIVIDUALS OR LEGAL ENTITIES WHO ARE
ESTABLISHED, DOMICILED OR HAVE THEIR RESIDENCE IN THE NETHERLANDS]**
HOMES MASTER ISSUER PLC
(Incorporated with limited liability in England and Wales with
registered number 5953811)
[US$][EURO][POUND] [*] Series [*] Class [A]/[B]/[M]/[C]/[D]
Mortgage - Backed Floating Rate Notes due
[*]
(the Series [*] Class [A]/[B]/[M]/[C]/[D] Notes)
This Series [*] Class [A]/[B]/[M]/[C]/[D] Note forms one of a series of notes
constituted by a trust deed (the Master Issuer Trust Deed) dated 28 March 2007
made between ▇▇▇▇▇▇ Master Issuer PLC (the Issuer) and The Bank of New York,
London Branch as trustee for the holders of the Series [*] Class
[A]/[B]/[M]/[C]/[D] Notes (the Note Trustee) and issued as registered Series
[*] Class [A]/[B]/[M]/[C]/[D] Notes in denominations of
[US$100,000][[EURO]50,000][[POUND]100,000] each, plus integral multiples of
[US$1,000][[EURO]1,000][[POUND]1,000], or in such other denominations as the
Note Trustee shall determine and notify to the holders of the relevant Series
[*] Class [A]/[B]/[M]/[C]/[D] Notes.
THIS IS TO CERTIFY that [*]
is/are the registered holder(s) of one of the above-mentioned registered Series
[*] Class [A]/[B]/[M]/[C]/[D] Notes, such Series [*] Class [A]/[B]/[M]/[C]/[D]
Notes being in the denomination of [U.S. dollars/euro/pounds sterling] and
is/are entitled on the Interest Payment Date falling in [*] (or on such earlier
date as the principal sum hereinafter mentioned may become repayable in
accordance with the terms and conditions of the Series [*] Class
[A]/[B]/[M]/[C]/[D] Notes (the Conditions) endorsed hereon) to the repayment of
such principal sum of:
[US$][EURO][POUND] [*]
together with such other amounts (if any) as may be payable, all subject to and
in accordance with the Conditions and the provisions of the Master Issuer Trust
Deed.
Interest is payable on the Principal Amount Outstanding (as determined in
accordance with Condition 5.3) endorsed hereon of this Series [*] Class
[A]/[B]/[M]/[C]/[D] Note at rates determined in accordance with the Conditions
payable monthly or quarterly or semi-annually, as the case may be, in arrear on
each Interest Payment Date and together with such other amounts (if any) as may
be payable, all subject to and in accordance with the Conditions and the
provisions of the Master Issuer Trust Deed.
IN WITNESS whereof this registered Series [*] Class [A]/[B]/[M]/[C]/[D] Note
has been executed on behalf of the Issuer.
▇▇▇▇▇▇ MASTER ISSUER PLC
By: ___________________
Director
By: ___________________
Director
Dated
-----------
** To appear only on the Reg S Definitive Notes
54
Certificate of authentication
This Series [*] Class [A]/[B]/[M]/[C]/[D] Note is duly authenticated
without recourse, warranty or liability.
________________________
Duly authorised
for and on behalf of
THE BANK OF NEW YORK, LONDON BRANCH
as Principal Paying Agent
55
(REVERSE OF NOTE)
THE CONDITIONS
[In the form set out in Schedule 4]
56
FORM OF TRANSFER OF DEFINITIVE MASTER ISSUER NOTE
FOR VALUE RECEIVED the undersigned hereby transfer(s) to
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or type name and address (including postal code) of transferee)
[US$][EURO][POUND] _________ principal amount of this Series [*] Class
[A]/[B]/[M]/[C]/[D] Note and all rights hereunder, hereby irrevocably
constituting and appointing __________ as attorney to transfer such principal
amount of this Series [*] Class [A]/[B]/[M]/[C]/[D] Note in the register
maintained by or on behalf of ▇▇▇▇▇▇ MASTER ISSUER PLC with full power of
substitution.
Signature(s) ________________
Date: _______________________
NOTES:
1. This form of transfer must be accompanied by such documents, evidence
and information as may be required pursuant to the Master Issuer Trust
Deed and the Master Issuer Paying Agent and Agent Bank Agreement (as
defined in the Conditions) and must be executed under the hand of the
transferor or, if the transferor is a corporation, either under its
common seal or under the hand of two of its officers duly authorised
in writing and, in such latter case, the document so authorising such
officers must be delivered with this form of transfer.
2. The signature(s) on this form of transfer must correspond with the
name(s) as it/they appear(s) on the face of this Series [*] Class
[A]/[B]/[M]/[C]/[D] Note in every particular, without alteration or
enlargement or any change whatever.
57
SCHEDULE 3
PART 1
FORM OF TRANSFER CERTIFICATES
RULE 144A GLOBAL MASTER ISSUER NOTE TO REG S GLOBAL MASTER ISSUER
NOTE
Attention:
Re: ▇▇▇▇▇▇ MASTER ISSUER PLC
Reference is hereby made to the Amended and Restated Master Issuer Trust Deed
dated 28 March 2007 (the Master Issuer Deed) between ▇▇▇▇▇▇ Master Issuer Plc
(the Issuer) and The Bank of New York, London Branch as Note Trustee.
Capitalised terms used but not defined herein shall have the meanings given to
them in the Master Issuer Trust Deed, the Master Definitions and Construction
Schedule and the Master Issuer Master Definitions and Construction Schedule.
This certificate relates to US$[*] aggregate principal amount of [*] Notes
which are evidenced by the Rule 144A Global [*] Note (CUSIP No. [*]) and held
by you on behalf of the undersigned (the Transferor). The Transferor has
requested a transfer of such beneficial interest in the [*] Notes to a person
who will take delivery thereof in the form of an equal aggregate principal
amount of [*] Notes evidenced by the Reg S Global [*] Note (ISIN [*]), which
amount, immediately after such transfer, is to be held with the Common
Depositary through Euroclear or Clearstream, Luxembourg, or both.
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S (Reg S) under the United
States Securities Act of 1933, as amended (the Securities Act), and accordingly
the Transferor does hereby further certify that:
(1) the offer of the [*] Notes was not made to a person in the United
States or to or for the account or benefit of a U.S. person (as
defined in Reg S under the Securities Act);
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee
was outside the United States; or
(B) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither the
Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or 904(b) of Reg S,
as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for the benefit
of the Issuer and the Managers. Terms used in this certificate and not
otherwise defined in the Master Issuer Trust Deed, the Master Definitions and
58
Construction Schedule or the Master Issuer Master Definitions and Construction
Schedule referred to in it have the meanings set forth in Regulation S under
the Securities Act.
Dated: [Insert Name of Transferor]
By: _________________________
Name:
Title:
(If the transferor is a corporation, partnership or fiduciary, the title of the
person signing on behalf of such transferor must be stated.)
59
PART 2
REG S GLOBAL MASTER ISSUER NOTE TO RULE 144A GLOBAL MASTER ISSUER
NOTE
Attention:
Re: ▇▇▇▇▇▇ MASTER ISSUER PLC
Reference is hereby made to the Amended and Restated Master Issuer Trust Deed
dated 28 November 2006 (the Master Issuer Trust Deed) between ▇▇▇▇▇▇ Master
Issuer plc (the Issuer) and The Bank of New York, London Branch as Note
Trustee. Capitalised terms used but not defined herein shall have the meanings
given to them in the Master Issuer Trust Deed, the Master Definitions and
Construction Schedule and the Master Issuer Master Definitions and Construction
Schedule.
This letter relates to US$ [*] aggregate principal amount of [*] Notes which
are evidenced by the Reg S Global [*] Note (ISIN No. [*]) and held by you
through Euroclear or Clearstream, Luxembourg or both who in turn is holding an
interest therein on behalf of the undersigned (the Transferor). The Transferor
has requested a transfer of such beneficial interest in the [*] Notes to a
person who, during the Distribution Compliance Period, will take delivery
thereof in the form of an equal aggregate principal amount of [*] Notes
evidenced by the Rule 144A Global [*] Note (CUSIP No. [*]).
In connection with such request and in respect of such [*] Notes, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended, and accordingly the Transferor does hereby further certify
that the [*] Notes are being transferred to a person that the Transferor
reasonably believes is purchasing the [*] Notes for its own account, or for one
or more accounts with respect to which such person exercises sole investment
discretion, and such person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States.
This certificate and the statements contained herein are made for the benefit
of the Issuer and the Managers.
Dated:
[Insert Name of Transferor]
By: ___________________
Name:
Title:
(If the transferor is a corporation, partnership or fiduciary, the title of the
person signing on behalf of such transferor must be stated.)
60
SCHEDULE 4
TERMS AND CONDITIONS OF THE MASTER ISSUER NOTES
As set forth in the Base Prospectus
61
SCHEDULE 5
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. (a) As used in this Schedule the following expressions shall have
the following meanings unless the context otherwise requires:
(i) voting certificate shall mean an English language
certificate issued by a Paying Agent and dated in
which it is stated:
(A) that on the date thereof Master Issuer Notes
(represented by a Global Master Issuer Note and
not being Master Issuer Notes in respect of
which a block voting instruction has been issued
and is outstanding in respect of the meeting
specified in such voting certificate or any
adjourned such meeting) were (to the
satisfaction of such Paying Agent) held to its
order or under its control and that no such
Master Issuer Notes will cease to be so held
until the first to occur of:
I. the conclusion of the meeting specified in
such certificate or, if applicable, of any
adjourned such meeting; and
II. the surrender of the certificate to the
Paying Agent who issued the same; and
(B) that the bearer thereof is entitled to attend
and vote at such meeting and any adjourned such
meeting in respect of the Master Issuer Notes
represented by such certificate;
(ii) block voting instruction shall mean an English
language document issued by a Paying Agent and dated
in which:
(A) it is certified that Master Issuer Notes
(represented by a Global Master Issuer Note and
not being Master Issuer Notes in respect of
which a voting certificate has been issued and
is outstanding in respect of the meeting
specified in such block voting instruction and
any adjourned such meeting) were (to the
satisfaction of such Paying Agent) held to its
order or under its control and that no such
Master Issuer Notes will cease to be so held
until the first to occur of:
I. the conclusion of the meeting specified in
such document or, if applicable, of any
adjourned such meeting; and
II. the surrender to that Paying Agent not less
than 48 hours before the time for which such
meeting or any adjourned such meeting is
convened of the receipt issued by such Paying
Agent in respect of each such Master Issuer Note
which is to be released or (as the case may
require)the Master Issuer Note or Master Issuer
Notes ceasing with the agreement of that Paying
Agent to be held to its order or under its
control and the giving of notice by that Paying
Agent to the Master Issuer in accordance with
paragraph 17 hereof of the necessary amendment
to the block voting instruction;
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(B) it is certified that each holder of such Master
Issuer Notes has instructed such Paying Agent
that the vote(s) attributable to the Master
Issuer Note or Master Issuer Notes so held
should be cast in a particular way in relation
to the resolution or resolutions to be put to
such meeting or any adjourned such meeting and
that all such instructions are during the period
commencing 48 hours prior to the time for which
such meeting or any adjourned such meeting is
convened and ending at the conclusion or
adjournment thereof neither revocable nor
capable of amendment;
(C) the aggregate principal amount of the Master
Issuer Notes so held are listed distinguishing
with regard to each such resolution between
those in respect of which instructions have been
given as aforesaid that the votes attributable
thereto should be cast in favour of the
resolution and those in respect of which
instructions have been so given that the votes
attributable thereto should be cast against the
resolution; and
(D) one or more persons named in such document (each
hereinafter called a proxy) is or are authorised
and instructed by such Paying Agent to cast the
votes attributable to the Master Issuer Notes so
listed in accordance with the instructions
referred to in (C) above as set out in such
document;
(iii) 24 hours shall mean a period of 24 hours including all
or part of a day upon which banks are open for
business in both the place where the relevant meeting
is to be held and in each of the places where the
Paying Agents have their specified offices
(disregarding for this purpose the day upon which such
meeting is to be held) and such period shall be
extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are
open for business in all of the places as aforesaid;
(iv) 48 hours shall mean a period of 48 hours including all
or part of two days upon which banks are open for
business both in the place where the relevant meeting
is to be held and in each of the places where the
Paying Agents have their specified offices
(disregarding for this purpose the day upon which such
meeting is to be held) and such period shall be
extended by one period or, to the extent necessary,
more periods of 24 hours until there is included as
aforesaid all or part of two days upon which banks are
open for business in all of the places as aforesaid;
and
(v) Notes and Noteholders shall mean:
(A) in connection with a single meeting of Class A
Noteholders, Class A Master Issuer Notes and
Class A Noteholders, respectively;
(B) in connection with a single meeting of Class B
Noteholders, Class B Master Issuer Notes and
Class B Noteholders, respectively;
(C) in connection with a single meeting of Class M
Noteholders, Class M Master Issuer Notes and
Class M Noteholders, respectively;
63
(D) in connection with a single meeting of Class C
Noteholders, Class C Master Issuer Notes and
Class C Noteholders, respectively; and
(E) in connection with a single meeting of Class D
Noteholders, Class D Master Issuer Notes and
Class D Noteholders, respectively.
(b) A holder of a Note represented by a Global Master Issuer Note
may obtain a voting certificate in respect of such Master
Issuer Note from a Paying Agent or require a Paying Agent to
issue a block voting instruction in respect of such Master
Issuer Note or by such Master Issuer Note (to the satisfaction
of such Paying Agent) being held to its order or under its
control, in each case not less than 48 hours before the time
fixed for the relevant meeting and on the terms set out in
subparagraph 1(a)(i)(A) or 1(a)(ii)(A) above (as the case may
be), and (in the case of a block voting instruction)
instructing such Paying Agent to the effect set out in
subparagraph 1(a)(ii)(B) above. The holder of any voting
certificate or the proxies named in any block voting
instruction shall for all purposes in connection with the
relevant meeting or adjourned meeting of Noteholders be deemed
to be the holder of the Master Issuer Notes to which such
voting certificate or block voting instruction relates and the
person holding the same to the order or under the control of
such Paying Agent shall be deemed for such purposes not to be
the holder of those Master Issuer Notes.
(c) (i) A holder of Definitive Notes may, by an instrument in
writing in the English language (a form of proxy)
signed by the holder or, in the case of a corporation,
executed under its common seal or signed on its behalf
by an attorney or a duly authorised officer of the
corporation and delivered to the specified office of
the Registrar not less than 48 hours before the time
fixed for the relevant meeting, appoint any person (a
proxy) to act on his or its behalf in connection with
any meeting of the Noteholders and any adjourned such
meeting.
(ii) Any holder of Definitive Notes which is a corporation
may by resolution of its directors or other governing
body authorise any person to act as its representative
(a representative) in connection with any meeting of
the Noteholders and any adjourned such meeting.
(iii) Any proxy appointed pursuant to subparagraph (i) above
or representative appointed pursuant to subparagraph
(ii) above shall so long as such appointment remains
in force be deemed, for all purposes in connection
with the relevant meeting or adjourned meeting of the
Noteholders, to be the holder of the Definitive Notes
to which such appointment relates and the holder of
the Definitive Notes shall be deemed for such purposes
not to be the holder.
(d) For so long as any Note is represented by a Global Master
Issuer Note registered in the name of DTC or its nominee, DTC
may mail an Omnibus Proxy to the Master Issuer in accordance
with and in the form used by DTC as part of its usual
procedures from time to time in relation to meetings of
Noteholders. Such Omnibus Proxy shall assign the voting rights
in respect of the relevant meeting to DTC's direct
participants as of the record date specified therein. Any such
assignee participant may, by an instrument in writing in the
English language signed by such assignee participant, or, in
the case of a corporation, executed under its common seal or
signed on its behalf by an attorney or a duly authorised
officer of the corporation and delivered to the specified
office of any Paying Agent before the time fixed for the
relevant meeting, appoint any person (a "sub-proxy") to act on
his or its behalf in connection with any
64
meeting of Noteholders and any adjourned such meeting. All
references to "proxy" or "proxies" in this Schedule other than
in this sub-paragraph (d) shall be read so as to include
references to "sub-proxy" or "sub-proxies".
(e) References in this Schedule to "Class" shall, where
applicable, be read as "Sub-Class" in respect of any meetings
of Sub-Classes of Master Issuer Notes.
2. The Master Issuer or the Note Trustee may at any time and the Note
Trustee shall upon a requisition in writing signed by the holders of
not less than one-tenth in principal amount of the Master Issuer Notes
of any Class for the time being outstanding convene a meeting of the
holders and if the Master Issuer makes default for a period of seven
days in convening such a meeting the same may be convened by the Note
Trustee or the requisitionists. Every such meeting shall be held at
such time and place as the Note Trustee may appoint or approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is to be held) specifying the
place, day and hour of meeting shall be given to the relevant
Noteholders prior to any meeting of such Noteholders. Such notice,
which shall be in the English language, shall state generally the
nature of the business to be transacted at the meeting thereby
convened but (except for an Extraordinary Resolution) it shall not be
necessary to specify in such notice the terms of any resolution to be
proposed. Such notice shall include statements, if applicable, to the
effect that (a) Notes represented by a Global Master Issuer Note may,
not less than 48 hours before the time fixed for the meeting, be held
to the order or under the control of any Paying Agent (to its
satisfaction) for the purpose of obtaining voting certificates or
appointing proxies and (b) the holders of Definitive Notes of the
relevant class may appoint proxies by executing and delivering a form
of proxy in the English language to the specified office of the
Registrar not less than 48 hours before the time fixed for the meeting
or, in the case of corporations, may appoint representatives by
resolution of their directors or other governing body. A copy of the
notice shall be sent by post to the Note Trustee (unless the meeting
is convened by the Note Trustee) and to the Master Issuer (unless the
meeting is convened by the Master Issuer).
4. A person (who may but need not be a Noteholder) nominated in writing
by the Note Trustee shall be entitled to take the chair at the
relevant meeting or adjourned meeting but if no such nomination is
made or if at any meeting or adjourned meeting the person nominated
shall not be present within 15 minutes after the time appointed for
holding the meeting or adjourned meeting the Noteholders present shall
choose one of their number to be Chairman, failing which the Master
Issuer may appoint a Chairman. The Chairman of an adjourned meeting
need not be the same person as was Chairman of the meeting from which
the adjournment took place.
5. At any such meeting one or more persons present holding Notes of the
relevant Series and Class (or Sub-Class) or of any one or more Series
of the same Class for the time being outstanding or voting
certificates or being proxies or representatives and holding or
representing in the aggregate not less than 50 per cent. of the
Principal Amount Outstanding of the Master Issuer Notes of the
relevant Series and Class (or Sub-Class) or of any one or more Series
of the same Class for the time being outstanding shall (except for the
purpose of passing an Extraordinary Resolution (including, for the
avoidance of doubt, a Programme Resolution)) form a quorum for the
transaction of business and no business (other than the choosing of a
Chairman) shall be transacted at any meeting unless the requisite
quorum be present at the commencement of the relevant business. The
quorum at any such meeting for passing an Extraordinary Resolution
(including, for the avoidance of doubt, a Programme Resolution) shall
(subject as provided below) be one or more persons present holding or
representing Notes of the relevant Series and Class (or Sub-Class) or
of any one or more Series of the same Class or voting certificates or
being proxies or representatives and holding
65
or representing in the aggregate not less than 50 per cent. in
Principal Amount Outstanding of the Master Issuer Notes of the
relevant Series and Class (or Sub-Class) or of any one or more Series
of the same Class then outstanding (or, at any adjourned meeting, not
less one or more persons being or representing Noteholders whatever
the Principal Amount Outstanding of the Master Issuer Notes of the
relevant Series and Class (or Sub-Class) or of any one or more Series
of the same Class) PROVIDED THAT at any meeting the business of which
includes the passing of an Extraordinary Resolution to sanction any of
the following matters (each a Basic Terms Modification) namely:
(a) reduction or cancellation of the amount payable or, where
applicable, modification, except where such modification is in
the opinion of the Note Trustee bound to result in an
increase, of the method of calculating the amount payable or
modification of the date of payment or, where applicable, of
the method of calculating the date of payment in respect of
any principal or interest in respect of the Master Issuer
Notes of the relevant Series and Class (or Sub-Class);
(b) alteration of the currency in which payments under such Notes
are to be made;
(c) alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(d) alteration of this proviso or the proviso to paragraph 6
below,
the quorum for passing the requisite Extraordinary Resolution shall be
one or more persons present holding Notes of the relevant Series and
Class (or Sub-Class) or voting certificates or being proxies or
representatives and holding or representing in the aggregate not less
than 75 per cent. (or, at any adjourned meeting, not less than 25 per
cent.) of the Principal Amount Outstanding of the Master Issuer Notes
of the relevant Series and Class (or Sub-Class) for the time being
outstanding.
Notwithstanding the provisions set out above, any Extraordinary
Resolution of the Noteholders of any Class of Notes of any Series to
direct the Note Trustee to give a Note Enforcement Notice pursuant to
Condition 9 (Events of Default) of the Terms and Conditions of the
Master Issuer Notes or to take any enforcement action or instruct the
Master Issuer Security Trustee to enforce the Master Issuer Security
pursuant to Condition 10 (Enforcement of Master Issuer Notes) of the
Terms and Conditions of the Master Issuer Notes, shall only be capable
of being passed as a Programme Resolution. The quorum at any such
meeting for passing a Programme Resolution shall be one or more
persons present holding or representing Notes of the relevant Class
and holding or representing in the aggregate not less than 50 per
cent. in Principal Amount Outstanding of the Master Issuer Notes of
the relevant Class then outstanding (or, at any adjourned meeting, one
or more persons being or representing Noteholders whatever the
aggregate Principal Amount Outstanding of the Master Issuer Notes of
such Class so held or represented).
6. If within 15 minutes (or such longer period not exceeding 30 minutes
as the Chairman may decide) after the time appointed for any such
meeting a quorum is not present for the transaction of any particular
business, then, subject and without prejudice to the transaction of
the business (if any) for which a quorum is present, the meeting shall
if convened upon the requisition of Noteholders be dissolved. In any
other case it shall stand adjourned to the same day in the next week
(or if such day is a public holiday the next succeeding Business Day)
at the same time and place (except in the case of a meeting at which
an Extraordinary Resolution is to be proposed in which case it shall
stand adjourned for such period, being not less than 13 clear days nor
more than 42 clear days, and to such place as may be appointed by the
Chairman either at or subsequent to such meeting and approved by the
Note Trustee). If
66
within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any adjourned
meeting a quorum is not present for the transaction of any particular
business, then, subject and without prejudice to the transaction of
the business (if any) for which a quorum is present, the Chairman may
either (with the approval of the Note Trustee) dissolve such meeting
or adjourn the same for such period, being not less than 13 clear days
(but without any maximum number of clear days), and to such place as
may be appointed by the Chairman either at or subsequent to such
adjourned meeting and approved by the Note Trustee, and the provisions
of this sentence shall apply to all further adjourned such meetings.
At any adjourned meeting one or more persons present holding
Definitive Notes or voting certificates or being proxies or
representatives (whatever the principal amount of the Master Issuer
Notes so held or represented by them) shall (subject as provided
below) form a quorum and shall (subject as provided below) have power
to pass any Extraordinary Resolution or other resolution and to decide
upon all matters which could properly have been dealt with at the
meeting from which the adjournment took place had the requisite quorum
been present PROVIDED THAT at any adjourned meeting the quorum for the
transaction of business comprising any of the matters specified in the
proviso to paragraph 5 above shall be one or more persons present
holding Definitive Notes or voting certificates or being proxies or
representatives and holding or representing in the aggregate not less
than one-third of the principal amount of the Master Issuer Notes of
the relevant Series and Class/es (or Sub-Classes) for the time being
outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution
is to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3
above and such notice shall state the relevant quorum. Subject as
aforesaid it shall not be necessary to give any notice of an adjourned
meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting
vote in addition to the vote or votes (if any) to which he may be
entitled as a Noteholder or as a holder of a voting certificate or as
a proxy or as a representative.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman, the Master
Issuer, the Note Trustee or any person present holding a Definitive
Note or a voting certificate or being a proxy or representative
(whatever the principal amount of the Master Issuer Notes so held or
represented by him) a declaration by the Chairman that a resolution
has been carried or carried by a particular majority or lost or not
carried by a particular majority shall be conclusive evidence of the
fact without proof of the number or proportion of the votes recorded
in favour of or against such resolution.
10. Subject to paragraph 12 below, if at any such meeting a poll is so
demanded it shall be taken in such manner and subject as hereinafter
provided either at once or after an adjournment as the Chairman
directs and the result of such poll shall be deemed to be the
resolution of the meeting at which the poll was demanded as at the
date of the taking of the poll. The demand for a poll shall not
prevent the continuance of the meeting for the transaction of any
business other than the motion on which the poll has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any
such meeting adjourn the same from time to time and from place to
place but no business shall be transacted at any adjourned meeting
except business which might lawfully (but for lack of required quorum)
have been transacted at the meeting from which the adjournment took
place.
12. Any poll demanded at any such meeting on the election of a Chairman or
on any question of adjournment shall be taken at the meeting without
adjournment.
67
13. The Note Trustee and its lawyers and any director, officer or employee
of a corporation being a trustee of the Master Issuer Trust Deed and
any director or officer of the Master Issuer and its lawyers and any
other person authorised so to do by the Note Trustee may attend and
speak at any meeting. Save as aforesaid, but without prejudice to the
definition of Principal Amount Outstanding, no person shall be
entitled to attend and speak nor shall any person be entitled to vote
at any meeting of the Noteholders or join with others in requesting
the convening of such a meeting or to exercise the rights conferred on
the Noteholders by Clause 10 of the Master Issuer Trust Deed unless he
either produces Master Issuer Note(s) or a voting certificate or is a
proxy or a representative or is the holder of a Definitive Note or
Definitive Notes. No person shall be entitled to vote at any meeting
in respect of Notes held by, for the benefit of, or on behalf of, the
Master Issuer. Nothing herein shall prevent any of the proxies named
in any block voting instruction or form of proxy or any representative
from being a director, officer or representative of or otherwise
connected with the Master Issuer.
14. Subject as provided in paragraph 13 above, at any meeting:
(a) on a show of hands every person who is present in person and
produces a voting certificate or is a holder of Notes or is a
proxy or representative shall have one vote; and
(b) on a poll every person who is so present shall have one vote
in respect of each [POUND]1 (or such other amount as the Note
Trustee may in its absolute discretion stipulate) in respect
of Sterling Master Issuer Notes, US$1 (or such other amount as
the Note Trustee may in its absolute discretion stipulate) in
respect of Dollar Master Issuer Notes, EUR1 (or such other
amount as the Note Trustee may in its absolute discretion
stipulate) in respect of Euro Master Issuer Notes or such
amount as the Note Trustee may in its absolute discretion
stipulate in respect of Master Issuer Notes denominated in any
other Specified Currency in Principal Amount Outstanding of
the Master Issuer Notes represented by the voting certificate
so produced or in respect of which he is a proxy or
representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any block
voting instruction or form of proxy any person entitled to more than
one vote need not use all his votes or cast all the votes to which he
is entitled in the same way.
15. The proxies named in any block voting instruction or form of proxy and
representatives need not be Noteholders.
16. Each block voting instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the relevant Paying Agent and each form of
proxy shall be deposited by the relevant Paying Agent or (as the case
may be) by the Registrar at such place as the Note Trustee shall
approve not less than 24 hours before the time appointed for holding
the meeting or adjourned meeting at which the proxies named in the
block voting instruction or form of proxy propose to vote and in
default the block voting instruction or form of proxy shall not be
treated as valid unless the Chairman of the meeting decides otherwise
before such meeting or adjourned meeting proceeds to business. A
notarially certified copy of each block voting instruction and form of
proxy shall be deposited with the Note Trustee before the commencement
of the meeting or adjourned meeting but the Note Trustee shall not
thereby be obliged to investigate or be concerned with the validity of
or the authority of the proxies named in any such block voting
instruction or form of proxy.
17. Any vote given in accordance with the terms of a block voting
instruction or form of proxy shall be valid notwithstanding the
previous revocation or amendment of the block voting
68
instruction or form of proxy or of any of the Noteholders'
instructions pursuant to which it was executed provided that no
intimation in writing of such revocation or amendment shall have been
received from the relevant Paying Agent or in the case of a Definitive
Note from the holder thereof by the Master Issuer at its registered
office (or such other place as may have been required or approved by
the Note Trustee for the purpose) by the time being 24 hours and 48
hours respectively before the time appointed for holding the meeting
or adjourned meeting at which the block voting instruction or form of
proxy is to be used.
18. Subject always to the provisions of Clause 19 of the Master Issuer
Trust Deed, a meeting of the Noteholders shall in addition to the
powers hereinbefore given have the following powers exercisable only
by Extraordinary Resolution (subject to the provisions relating to
quorum contained in paragraphs 5 and 6 above) namely:
(a) power to sanction any compromise or arrangement proposed to be
made between the Master Issuer, the Note Trustee, any
appointee of the Note Trustee and the Noteholders or any of
them;
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Master
Issuer against any other or others of them or against any
other party to any of the Transaction Documents or against any
of their property whether such rights shall arise under the
Master Issuer Trust Deed, any other Transaction Document or
otherwise;
(c) power to assent to any modification of the provisions of the
Conditions, the Master Issuer Trust Deed or any other
Transaction Document which shall be proposed by the Master
Issuer, the Note Trustee, any Noteholder or any other person;
(d) power to give any authority or sanction which under the
provisions of the Conditions or the Master Issuer Trust Deed
is required to be given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees
any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution;
(f) power to approve of a person to be appointed a trustee and
power to remove any trustee or trustees for the time being of
the Master Issuer Trust Deed;
(g) power to discharge or exonerate the Note Trustee and/or any
appointee of the Note Trustee from all liability in respect of
any act or omission for which the Note Trustee and/or such
appointee may have become responsible under the Master Issuer
Trust Deed;
(h) power to authorise the Note Trustee and/or any appointee of
the Note Trustee to concur in and execute and do all such
deeds, instruments, acts and things as may be necessary to
carry out and give effect to any Extraordinary Resolution; and
(i) power to sanction any scheme or proposal for the exchange or
sale of the Master Issuer Notes for or the conversion of the
Master Issuer Notes into or the cancellation of the Master
Issuer Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
notes of the Master Issuer or any other company formed or to
be formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares, stock,
notes, bonds, debentures,
69
debenture stock and/or other obligations and/or notes as
aforesaid and partly for or into or in consideration of cash
and for the appointment of some person with power on behalf of
the Noteholders to execute an instrument of transfer of the
Definitive Notes held by them in favour of the persons with or
to whom the Master Issuer Notes are to be exchanged or sold
respectively,
PROVIDED THAT:
(i) no Extraordinary Resolution of the Class A Noteholders or the
Class B Noteholders or the Class M Noteholders or the Class C
Noteholders or the Class D Noteholders (in each case of any
one or more Series) to sanction a modification of the
Conditions, the Master Issuer Trust Deed or any of the other
Transaction Documents or a waiver or authorisation of any
breach or proposed breach of any of the provisions of the
Conditions, the Master Issuer Trust Deed or any of the other
Transaction Documents shall be effective for any purpose
unless either:
(A) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of (in the
case of an Extraordinary Resolution of the Class A
Noteholders) the Class B Noteholders, the Class M
Noteholders, the Class C Noteholders and the Class D
Noteholders, in each case of each Series, or (in the
case of an Extraordinary Resolution of the Class B
Noteholders) the Class M Noteholders, the Class C
Noteholders and the Class D Noteholders, in each case
of each Series, or (in the case of an Extraordinary
Resolution of the Class M Noteholders) the Class C
Noteholders and the Class D Noteholders of each Series
or (in the case of an Extraordinary Resolution of the
Class C Noteholders) the Class D Noteholders of each
Series; or
(B) it shall have been sanctioned by an Extraordinary
Resolution of (in the case of an Extraordinary
Resolution of the Class A Noteholders) the Class B
Noteholders, the Class M Noteholders, the Class C
Noteholders and the Class D Noteholders, in each case
of each Series, or (in the case of an Extraordinary
Resolution of the Class B Noteholders) the Class M
Noteholders, the Class C Noteholders and the Class D
Noteholders, in each case of each Series, or (in the
case of an Extraordinary Resolution of the Class M
Noteholders) the Class C Noteholders and the Class D
Noteholders of each Series or (in the case of an
Extraordinary Resolution of the Class C Noteholders)
the Class D Noteholders of each Series;
(ii) no Extraordinary Resolution of the Class B Noteholders of any
Series shall be effective for any purpose while any Class A
Master Issuer Notes (of that Series or any other Series)
remain outstanding unless either (A) the Note Trustee is of
the opinion that it will not be materially prejudicial to the
interests of the Class A Noteholders of each Series or (B) it
is sanctioned by an Extraordinary Resolution of the Class A
Noteholders of each Series;
(iii) no Extraordinary Resolution of the Class M Noteholders of any
Series shall be effective for any purpose while any Class A
Master Issuer Notes or Class B Master Issuer Notes (in each
case, of that Series or of any other Series) remain
outstanding unless either (A) the Note Trustee is of the
opinion that it will not be materially prejudicial to the
interests of the Class A Noteholders and/or the Class B
Noteholders (as the case may be), in each case of each Series,
or (B) it is sanctioned by an Extraordinary Resolution of the
Class A Noteholders and/or the Class B Noteholders (as the
case may be) of each Series;
70
(iv) no Extraordinary Resolution of the Class C Noteholders of any
Series shall be effective for any purpose while any Class A
Master Issuer Notes, Class B Master Issuer Notes or Class M
Master Issuer Notes (in each case, of that Series or of any
other Series) remain outstanding unless either (A) the Note
Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Class A Noteholders and/or
the Class B Noteholders and/or the Class M Noteholders (as the
case may be), in each case of each Series, or (B) it is
sanctioned by an Extraordinary Resolution of the Class A
Noteholders and/or the Class B Noteholders and/or the Class M
Noteholders (as the case may be) of each Series; and
(v) no Extraordinary Resolution of the Class D Noteholders of any
Series shall be effective for any purpose while any Class A
Master Issuer Notes, Class B Master Issuer Notes, Class M
Master Issuer Notes or Class C Master Issuer Notes (in each
case, of that Series or of any other Series) remain
outstanding unless either (A) the Note Trustee is of the
opinion that it will not be materially prejudicial to the
interests of the Class A Noteholders and/or the Class B
Noteholders and/or the Class M Noteholders and/or the Class C
Noteholders (as the case may be), in each case of each Series,
or (B) it is sanctioned by an Extraordinary Resolution of the
Class A Noteholders and/or the Class B Noteholders and/or the
Class M Noteholders and/or the Class C Noteholders (as the
case may be) of each Series.
19. Subject to the provisos to paragraph 18 above, any resolution passed
at a meeting of the Noteholders duly convened and held in accordance
with the Master Issuer Trust Deed shall be binding upon the
Noteholders of all Classes whether present or not present at such
meeting and whether or not voting and each of them shall be bound to
give effect thereto accordingly and the passing of any such resolution
shall be conclusive evidence that the circumstances justify the
passing thereof. Notice of the result of the voting on any resolution
duly considered by the Noteholders shall be given by the Master Issuer
to the Noteholders in accordance with Condition 14 within 14 days of
such result being known PROVIDED THAT the non-publication of such
notice shall not invalidate such result.
20. Subject to paragraph 5 above:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Sub-Class or
Series (as the case may be) only of Class A Master Issuer
Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of the Class A Master
Issuer Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class A Master
Issuer Notes, but does not give rise to a conflict of interest
between the holders of such two or more Sub-Classes or Series
(as the case may be) of Class A Master Issuer Notes, shall be
deemed to have been duly passed if passed at a single meeting
of the holders of such two or more Sub-Classes or Series (as
the case may be) of Class A Master Issuer Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class A Master
Issuer Notes, and gives or may give rise to a conflict of
interest between the holders of such two or more Sub-Classes
or Series (as the case may be) of Class A Master Issuer Notes,
shall be deemed to have been duly passed only if, in lieu of
being passed at a single meeting of the holders of such two or
more Sub-Classes or Series (as the case may be) of Class A
Master Issuer Notes, it shall be duly passed at
71
separate meetings of the holders of each of such two or more
Sub-Classes or Series (as the case may be) of Class A Master
Issuer Notes.
21. Subject to paragraph 5 above:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Sub-Class or
Series (as the case may be) only of Class B Master Issuer
Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of the Class B Master
Issuer Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class B Master
Issuer Notes, but does not give rise to a conflict of interest
between the holders of such two or more Sub-Classes or Series
(as the case may be) of Class B Master Issuer Notes, shall be
deemed to have been duly passed if passed at a single meeting
of the holders of such two or more Sub-Classes or Series (as
the case may be) of Class B Master Issuer Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class B Master
Issuer Notes, and gives or may give rise to a conflict of
interest between the holders of such two or more Sub-Classes
or Series (as the case may be) of Class B Master Issuer Notes,
shall be deemed to have been duly passed only if, in lieu of
being passed at a single meeting of the holders of such two or
more Sub-Classes or Series (as the case may be) of Class B
Master Issuer Notes, it shall be duly passed at separate
meetings of the holders of such two or more Sub-Classes or
Series (as the case may be) of Class B Master Issuer Notes.
22. Subject to paragraph 5 above:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Sub-Class or
Series (as the case may be) only of Class M Master Issuer
Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of the Class M Master
Issuer Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class M Master
Issuer Notes, but does not give rise to a conflict of interest
between the holders of such two or more Sub-Classes or Series
(as the case may be) of Class M Master Issuer Notes, shall be
deemed to have been duly passed if passed at a single meeting
of the holders of such two or more Sub-Classes or Series (as
the case may be) of Class M Master Issuer Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class M Notes,
and gives or may give rise to a conflict of interest between
the holders of such two or more Sub-Classes or Series (as the
case may be) of the Class M Master Issuer Notes, shall be
deemed to have been duly passed only if, in lieu of being
passed at a single meeting of the holders of such two or more
Sub-Classes or Series (as the case may be) of Class M Master
Issuer Notes, it shall be duly passed at separate meetings of
the holders of such two or more Sub-Classes or Series (as the
case may be) of Class M Master Issuer Notes.
23. Subject to paragraph 5 above:
72
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Sub-Class or
Series (as the case may be) only of Class C Master Issuer
Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of Class C Master Issuer
Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class C Master
Issuer Notes, but does not give rise to a conflict of interest
between the holders of such two or more Sub-Classes or Series
(as the case may be) of Class C Master Issuer Notes, shall be
deemed to have been duly passed if passed at a single meeting
of the holders of such two or more Sub-Classes or Series (as
the case may be) of Class C Master Issuer Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class C Master
Issuer Notes, and gives or may give rise to a conflict of
interest between the holders of such two or more Sub-Classes
or Series (as the case may be) of Class C Master Issuer Notes,
shall be deemed to have been duly passed only if, in lieu of
being passed at a single meeting of the holders of such two or
more Sub-Classes or Series (as the case may be) of Class C
Master Issuer Notes, it shall be duly passed at separate
meetings of the holders of such two or more Sub-Classes or
Series (as the case may be) of Class C Master Issuer Notes.
24. Subject to paragraph 5 above:
(a) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of one Sub-Class or
Series (as the case may be) only of Class D Master Issuer
Notes shall be deemed to have been duly passed if passed at a
meeting of the holders of that Class of Class D Master Issuer
Notes.
(b) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class D Master
Issuer Notes, but does not give rise to a conflict of interest
between the holders of such two or more Sub-Classes or Series
(as the case may be) of Class D Master Issuer Notes, shall be
deemed to have been duly passed if passed at a single meeting
of the holders of such two or more Sub-Classes or Series (as
the case may be) of Class D Master Issuer Notes.
(c) A resolution which, in the sole opinion of the Note Trustee,
affects the interests of the holders of any two or more
Sub-Classes or Series (as the case may be) of Class D Master
Issuer Notes, and gives or may give rise to a conflict of
interest between the holders of such two or more Sub-Classes
or Series (as the case may be) of Class D Master Issuer Notes,
shall be deemed to have been duly passed only if, in lieu of
being passed at a single meeting of the holders of such two or
more Sub-Classes or Series (as the case may be)of Class D
Master Issuer Notes, it shall be duly passed at separate
meetings of the holders of such two or more Sub-Classes or
Series (as the case may be) of Class D Master Issuer Notes.
25. In the case of a single meeting of the holders of Master Issuer Notes
of two or more Classes which are not all denominated in the same
currency, the Principal Amount Outstanding of any Note denominated in
a Specified Currency other than Sterling shall be converted into
Sterling at the relevant Master Issuer Swap Rate.
73
26. (a) The expression Extraordinary Resolution when used in the
Master Issuer Trust Deed means (i) a resolution passed at a
meeting of the Noteholders of a relevant Class or Classes of
Master Issuer Notes duly convened and held in accordance with
the provisions of this Schedule 4 by a majority consisting of
not less than three-fourths of the persons voting thereat upon
a show of hands or if a poll is duly demanded by a majority
consisting of not less than three-fourths of the votes cast on
such poll or (ii) a resolution in writing signed by or on
behalf of all the Noteholders of a relevant class or classes
of Master Issuer Notes, which resolution in writing may be
contained in one document or in several documents in like form
each signed by or on behalf of one or more of the Noteholders
of a relevant Class or Classes of Master Issuer Notes.
(b) The expression Programme Resolution when used in the Master
Issuer Trust Deed means any Extraordinary Resolution passed at
a single meeting of the Noteholders of the Master Issuer Notes
of all Series of the relevant Class.
27. Minutes of all resolutions and proceedings at every meeting of the
Noteholders shall be made and entered in books to be from time to time
provided for that purpose by the Master Issuer and any such Minutes as
aforesaid if purporting to be signed by the Chairman of the meeting at
which such resolutions were passed or proceedings transacted shall be
conclusive evidence of the matters therein contained and, until the
contrary is proved, every such meeting in respect of the proceedings
of which Minutes have been made shall be deemed to have been duly held
and convened and all resolutions passed or proceedings transacted
thereat to have been duly passed or transacted.
28. Subject to all other provisions of the Master Issuer Trust Deed, the
Note Trustee may without the consent of the Master Issuer or the
Noteholders prescribe such further regulations regarding the
requisitioning and/or the holding of meetings of Noteholders and
attendance and voting thereat as the Note Trustee may in its sole
discretion think fit.
74
SIGNATORIES
The Master Issuer
EXECUTED and DELIVERED as a DEED by )
▇▇▇▇▇▇ MASTER ISSUER PLC )
acting by two directors/a )
director and the secretary )
Director /s/ ▇▇▇▇ ▇▇▇▇▇▇
Director /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
The Note Trustee
EXECUTED and DELIVERED as a DEED by ) /s/ ▇▇▇▇▇ ▇▇▇
THE BANK OF NEW YORK, )
LONDON BRANCH )
acting by )
)
Authorised Signatory:
75
APPENDIX 1
SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF
COMPLIANCE
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NOTE PAYING
SERVICING CRITERIA TRUSTEE AGENT
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REFERENCE CRITERIA
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GENERAL SERVICING CONSIDERATIONS
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1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other triggers and
events of default in accordance with the transaction agreements. X X
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1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party's performance and compliance with X X
such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the
mortgage loans are maintained. X X
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party participating
in the servicing function throughout the reporting period in the amount of coverage X X
required by and otherwise in accordance with the terms of the transaction agreements.
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CASH COLLECTION AND ADMINISTRATION
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1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank accounts and
related bank clearing accounts no more than two business days following receipt, or such
other number of days specified in the transaction agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are made
only by authorized personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or distributions, and any
interest or other fees charged for such advances, are made, reviewed and approved as
specified in the transaction agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or accounts
established as a form of overcollateralization, are separately maintained (e.g., with
respect to commingling of cash) as set forth in the transaction agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured depository institution as
set forth in the transaction agreements. For purposes of this criterion, "federally
insured depository institution" with respect to a foreign financial institution means a
foreign financial institution that meets the requirements of Rule 13k-1(b)(1) of the
Securities Exchange Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing accounts. These
reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days
after the bank statement cutoff date, or such other number of days specified in the
transaction agreements; (C) reviewed and approved by someone other than the person who
prepared the reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original identification,
or such other number of days specified in the transaction agreements.
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INVESTOR REMITTANCES AND REPORTING
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1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are maintained in
accordance with the transaction agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide information calculated in accordance X X
with the terms specified in the transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number of mortgage loans serviced
by the Servicer.
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NOTE PAYING
SERVICING CRITERIA TRUSTEE AGENT
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REFERENCE CRITERIA
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction agreements. X
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1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the Servicer's
investor records, or such other number of days specified in the transaction agreements. X
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled checks, or
other form of payment, or custodial bank statements. X
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POOL ASSET ADMINISTRATION
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1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
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1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the transaction
agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and approved
in accordance with any conditions or requirements in the transaction agreements.
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1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the related
mortgage loan documents are posted to the Servicer's obligor records maintained no more
than two business days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or other items (e.g., escrow)
in accordance with the related mortgage loan documents.
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1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's records with
respect to an obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans (e.g., loan
modifications or re-agings) are made, reviewed and approved by authorized personnel in
accordance with the transaction agreements and related pool asset documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and deeds in
lieu of foreclosure, foreclosures and repossessions, as applicable) are initiated,
conducted and concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a mortgage loan is
delinquent in accordance with the transaction agreements. Such records are maintained on
at least a monthly basis, or such other period specified in the transaction agreements,
and describe the entity's activities in monitoring delinquent mortgage loans including,
for example, phone calls, letters and payment rescheduling plans in cases where delinquency
is deemed temporary (e.g., illness or unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with variable rates are
computed based on the related mortgage loan documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts): (A) such funds
are analyzed, in accordance with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other number of days specified
in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) are made on or
before the related penalty or expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has been received by the servicer
at least 30 calendar days prior to these dates, or such other number of days specified in
the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on behalf of an
obligor are paid from the servicer's funds and not charged to the obligor, unless the
late payment was due to the obligor's error or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business days to the
obligor's records maintained by the servicer, or such other number of days specified in
the transaction agreements.
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NOTE PAYING
SERVICING CRITERIA TRUSTEE AGENT
-----------------------------------------------------------------------------------------------------------------------------------
REFERENCE CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and recorded in
accordance with the transaction agreements.
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1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or
Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
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78