Exhibit 4.6
Dated [o]
GRANITE MORTGAGES 04-1 PLC
as Current Issuer
and
THE BANK OF NEW YORK
as Note Trustee
---------------------------------------------
ISSUER TRUST DEED
---------------------------------------------
SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇
TELEPHONE ▇▇▇ ▇▇▇▇ ▇▇▇▇
FACSIMILE 020 7626 7937
REF:30507-21/630584
CROSS-REFERENCE TABLE*
Section of Trust
Indenture Act of
1939, as amended Section of Deed
---------------- ---------------
310(a)...................................................................14.2
310(b)...................................................................14.2
310(c)...........................................................Inapplicable
311(a)...............................................................10.3(kk)
311(b)...............................................................10.3(kk)
311(c)...........................................................Inapplicable
312(a)..................................................................5(ee)
312(b)...................................................................19.2
312(c)...................................................................19.2
313..................................................................10.3(jj)
314(a)...................................................................5(u)
314(b)..................................................................5(gg)
314(c).............................................................16.1, 17.1
314(d)...................................................................17.1
314(e)...................................................................16.2
315(a).................................................................. 10.1
315(b)...................................................................10.8
315(c)....................................................................2.7
315(d)..................................................................10.12
316(a)..............................................................7.2, 11.2
316(b).................................................................2.2(d)
316(c)....................................................................7.2
317(a)....................................................................6.1
317(b)...................................................................5(p)
318(a).....................................................................15
318(b)...................................................................17.4
318(c)....................................................................1.4
* This Cross-Reference Table does not constitute part of this Deed and shall
not affect the interpretation of any of its terms or provisions.
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Table of Contents
Clause Page
1. Definitions..............................................................1
2. Covenant to Repay etc....................................................3
3. Form, Issue and Deposit of Note Certificates.............................6
4. Covenant of Compliance...................................................9
5. Covenants by the Current Issuer..........................................9
6. Enforcement.............................................................15
7. Proceedings, Actions and Indemnification................................16
8. Application of Moneys etc...............................................18
9. Remuneration and Indemnification of Note Trustee........................19
10. Supplement to the Trustee Acts..........................................21
11. Modification and Waiver.................................................32
12. Entitlement to Treat holder as owner....................................33
13. Currency Indemnity......................................................33
14. Appointment, Removal and Retirement of Note Trustee.....................34
15. Trust Indenture Act Prevails............................................36
16. Certificates and Opinions...............................................36
17. Release of Collateral...................................................37
18. Rights Cumulative.......................................................38
19. Notices.................................................................38
20. Third Party Rights......................................................39
21. Execution in Counterparts; Severability.................................39
22. Governing Law and Jurisdiction; Appropriate Forum.......................39
SCHEDULE 1 FORMS OF GLOBAL NOTE CERTIFICATES.................................40
SCHEDULE 2 FORMS OF INDIVIDUAL NOTE CERTIFICATES.............................70
SCHEDULE 3 CURRENT ISSUER CONDITIONS OF THE NOTES............................92
SCHEDULE 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS...........................140
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THIS ISSUER TRUST DEED is made on [o]
BETWEEN:
(1) GRANITE MORTGAGES 04-1 PLC (registered number 4959572) a public limited
company incorporated under the laws of England and Wales whose
registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as
Current Issuer; and
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London branch at 48th Floor, One Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ in its capacity as Note Trustee.
WHEREAS:
(A) By a resolution of a duly authorised Board of Directors of the Current
Issuer passed on [o] the Current Issuer authorised the creation and
issue of the Current Issuer Notes.
(B) The Note Trustee has agreed to act as trustee of these presents for the
benefit of the Noteholders upon and subject to the Current Issuer
Conditions.
NOW THIS ISSUER TRUST DEED WITNESSES AND IT IS AGREED AND DECLARED:
1. Definitions
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule
Seventh Amendment Deed made on [o] January, 2004 between, among
others, the Seller, Funding and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇ on
[o] January, 2004,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Deed.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Master Definitions Schedule.
1.2 All references in these presents:
(a) to principal and/or premium and/or interest in respect of the
Current Issuer Notes or to any monies payable by the Current
Issuer under these presents shall be deemed to include a reference
to any additional amounts which may be payable under Condition
4(B) (Payment Dates and Interest Periods) or, if applicable, under
any undertaking or covenant given pursuant to Clause 2.2 (Covenant
to Repay).
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(b) to "these presents" and/or to "this Deed" means this Trust Deed,
the schedules hereto, any deed expressed to be supplemental hereto
and the Current Issuer Deed of Charge all as from time to time
supplemented or modified in accordance with the provisions
contained in these presents and/or where applicable, therein
contained.
(c) to guarantees or to an obligation being guaranteed shall be deemed
to include respectively references to indemnities or to an
indemnity being given in respect thereof.
(d) to any action, remedy or method of proceeding for the
enforcement of the rights of creditors shall be deemed to
include, in respect of any jurisdiction other than England,
references to such action, remedy or method of proceeding for
the enforcement of the rights of creditors available or
appropriate in such jurisdiction as shall most nearly
approximate to such action, remedy or method of proceeding
described or referred to in these presents.
(e) to taking proceedings against the Current Issuer shall be deemed
to include references to proving in the winding up of the Current
Issuer.
(f) to DTC, Euroclear and Clearstream, Luxembourg shall be deemed to
include references to any other or additional clearing system as
may be approved in writing by the Note Trustee.
1.3 Unless the context otherwise requires words or expressions used in these
presents shall bear the same meanings as in the Companies ▇▇▇ ▇▇▇▇ of
England.
1.4 Whenever these presents refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made part of
these presents. All other Trust Indenture Act terms used in these
presents that are defined by the Trust Indenture Act, defined in the
Trust Indenture Act by reference to another statute or defined by SEC
rule have the meanings assigned to them in the Trust Indenture Act.
1.5 For the purposes of determining whether a direction, request or consent
has been received from the holders of at least 25 per cent. in Principal
Amount Outstanding of any class of Notes, the Principal Amount
Outstanding of any Note denominated in Dollars or Euro shall be
converted into Sterling at the relevant Dollar Currency Swap Rate or
Euro Currency Swap Rate, as the case may be.
1.6 "outstanding" means, in relation to the Current Issuer Notes, all the
Current Issuer Notes other than:
(a) those which have been redeemed in accordance with these presents;
(b) those in respect of which the date for redemption in accordance
with the provisions of the Current Issuer Conditions has occurred
and for which the redemption moneys (including all interest
accrued thereon to such date for redemption) have been duly paid
to the Note Trustee or the Principal Paying Agent in the manner
provided for in the Current Issuer Paying Agent and Agent Bank
Agreement (and, where appropriate, notice to that effect has been
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given to the relevant class or classes of Noteholders in
accordance with Condition 14 (Notice to Noteholders)) and remain
available for payment in accordance with the Current Issuer
Conditions;
(c) those which have been purchased and surrendered for cancellation as
provided in Condition 5 (Redemption, Purchase and Cancellation) and
notice of the cancellation of which has been given to the Note Trustee;
(d) those which have become void under Condition 7 (Prescription);
(e) those mutilated or defaced Note Certificates which have been surrendered
or cancelled and in respect of which replacement Note Certificates have
been issued pursuant to Condition 13 (Replacement of Notes);
(f) (for the purpose only of ascertaining the amount of the Current Issuer
Notes outstanding and without prejudice to the status for any other
purpose of the relevant Current Issuer Notes) those Note Certificates
which are alleged to have been lost, stolen or destroyed and in respect
of which replacements have been issued pursuant to Condition 13
(Replacement of Notes);
(provided that) for each of the following purposes, namely:
(i) the right to attend and vote at any Meeting (as defined in
Schedule 4 (Provisions for Meetings of Noteholders) hereto);
(ii) the determination of how many and which Current Issuer Notes are
for the time being outstanding for the purposes of Clauses 7
(Proceedings, Actions and Indemnification) and 11.2 (Waiver),
Condition 10 (Enforcement of Notes) and Schedule 4 (Provisions for
Meetings of Noteholders); and
(iii) any discretion, power or authority, whether contained in these
presents or provided by law, which the Note Trustee is required to
exercise in or by reference to the interests of the Noteholders or
any of them,
those Current Issuer Notes (if any) which are for the time being held by
any person (including but not limited to the Current Issuer or any
subsidiary or affiliate of either for the benefit of the Current Issuer
or any subsidiary or affiliate shall (unless and until ceasing to be so
held) be deemed not to remain outstanding.
2. Covenant to Repay etc.
2.1 The Current Issuer Notes: The aggregate principal amount of:
(a) the Series 1 Class A1 Notes is limited to US$[1,000,000,000];
(b) the Series 1 Class A2 Notes is limited to US$[920,000,000];
(c) the Series 1 Class B Notes is limited to US$[45,000,000];
(d) the Series 1 Class M Notes is limited to US$[50,000,000];
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(e) the Series 1 Class C Notes is limited to US$[60,000,000];
(f) the Series 2 Class A1 Notes is limited to US$[900,000,000];
(g) the Series 2 Class A2 Notes is limited to (euro)[75,000,000]
(h) the Series 2 Class B Notes is limited to (euro)[75,000,000];
(i) the Series 2 Class M Notes is limited to (euro)[45,000,000];
(j) the Series 2 Class C Notes is limited to (euro)[60,000,000];
(k) the Series 3 Class A Notes is limited to(pound)[500,000,000];
(l) the Series 3 Class B Notes is limited to(pound)[20,000,000];
(m) the Series 3 Class M Notes is limited to(pound)[10,000,000];
(n) the Series 3 Class C Notes is limited to(pound)[20,000,000].
2.2 Covenant to Repay: The Current Issuer covenants with the Note Trustee
that it will, in accordance with these presents, on the Final Maturity
Date of the Current Issuer Notes, or on such earlier date as the same or
any part thereof may become due and repayable thereunder in accordance
with the Current Issuer Conditions, pay or procure to be paid
unconditionally to or to the order of the Note Trustee in Sterling, Euro
or US dollars, as applicable, in London or New York City, as applicable,
in immediately available funds or same day funds, as applicable, the
principal amount of the Current Issuer Notes repayable on that date and
shall in the meantime and until all such payments (both before and after
any judgment or other order of a court of competent jurisdiction) are
duly made (subject to the provisions of the Current Issuer Conditions)
pay or procure to be paid unconditionally to or to the order of the Note
Trustee as aforesaid interest (which shall accrue from day to day) on
the Principal Amount Outstanding of the Current Issuer Notes at the
rates set out in or (as the case may be) calculated from time to time in
accordance with Condition 4 (Interest) and on the dates on which such
interest becomes due and payable in accordance with the Current Issuer
Conditions provided that:
(a) every payment of principal or interest in respect of the Current
Issuer Notes or any of them to or to the account of the Paying
Agents in the manner provided in the Current Issuer Paying Agent
and Agent Bank Agreement shall operate in satisfaction pro tanto
of the relative covenant by the Current Issuer in this Clause
except to the extent that there is default in the subsequent
payment thereof to the Noteholders in accordance with the Current
Issuer Conditions;
(b) if any payment of principal or interest in respect of the Current
Issuer Notes or any of them is made after the due date, payment
shall be deemed not to have been made until either the full amount
is paid to the Noteholders or, if earlier, the seventh day after
notice has been given to the Noteholders in accordance with the
Current Issuer Conditions that the full amount has been received
by the Note Trustee or the Paying Agents, to the extent that there
is a failure in the subsequent payment to Noteholders under the
Current Issuer Conditions;
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(c) in any case where payment of the whole or any part of the
principal amount of any Current Issuer Note is improperly withheld
or refused upon due presentation thereof (if so provided in the
Current Issuer Paying Agent and Agent Bank Agreement) interest
shall accrue on the whole or such part of such principal amount
which has been so withheld or refused (both before and after any
judgment or other order of a court of competent jurisdiction) at
the rates aforesaid from and including the date of such
withholding or refusal up to and including the date on which such
principal amount due is paid to the Noteholders or (if earlier)
the seventh day after notice is given to the Noteholders in
accordance with the Current Issuer Conditions that the full amount
(including interest as aforesaid) payable in respect of the
principal amount is available for payment, provided that, upon
further due presentation thereof (if so provided in the Current
Issuer Paying Agent and Agent Bank Agreement), such payment is in
fact made; and
(d) notwithstanding any other provision of these presents, pursuant to
Section 316(b) of the Trust Indenture Act the right of any
Noteholder to receive payment of principal and interest on the
Current Issuer Notes, on or after the respective due dates
expressed in the Current Issuer Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the
Noteholder.
2.3 Additional Interest: The Current Issuer shall pay Additional Interest in
accordance with Condition 4(B) (Payment Dates and Interest Periods).
2.4 On trust: The Note Trustee will hold the benefit of the covenants
contained in this Clause 2 (Covenant to Repay, etc) on trust for the
Noteholders and itself in accordance with these presents.
2.5 Note Trustee's requirements regarding Agents, etc.: At any time after a
Note Event of Default shall have occurred (which shall not have been
waived by the Note Trustee or remedied to its satisfaction) or the
Current Issuer Notes shall otherwise have become due and repayable or
Individual Note Certificates have not been issued when so required in
accordance with these presents and the Global Note Certificates, the
Note Trustee may:
(a) by notice in writing to the Current Issuer, the Principal Paying
Agent, the US Paying Agent, the Agent Bank, the Transfer Agent and
the Registrar require such Agents or any of them pursuant to the
Current Issuer Paying Agent and Agent Bank Agreement:
(i) to act thereafter, and until otherwise instructed by the
Note Trustee, as Agents respectively of the Note Trustee on
the terms provided in the Current Issuer Paying Agent and
Agent Bank Agreement (with consequential amendments as
necessary and save that the Note Trustee's liability under
any provisions thereof for the indemnification, remuneration
and payment of out-of-pocket expenses of the Agents shall be
limited to the amounts for the time being held by the Note
Trustee on the trusts of these presents relating to the
Current Issuer Notes and available for such purpose) and
thereafter to hold all Note
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Certificates and all sums, documents and records held by
them in respect of Current Issuer Notes on behalf of the
Note Trustee; and/or
(ii) to deliver up all Note Certificates and all sums, documents
and records held by them in respect of the Current Issuer
Notes to the Note Trustee or as the Note Trustee shall
direct in such notice provided that such notice shall be
deemed not to apply to any documents or records which the
relevant Agent or the Registrar, as the case may be, is
obliged not to release by any law or regulation; and/or
(b) by notice in writing to the Current Issuer require it to make all
subsequent payments in respect of the Current Issuer Notes to or
to the order of the Note Trustee with effect from the issue of any
such notice to the Current Issuer and until such notice is
withdrawn, Clause 2.2(a) above relating to the Current Issuer
Notes shall cease to have effect.
2.6 Interest following Default: The rate of interest payable in respect of
the Current Issuer Notes if they become immediately repayable pursuant
to a notice given to the Note Trustee pursuant to the Current Issuer
Conditions shall be calculated at three monthly intervals, the first of
which shall commence on the expiry of the Interest Period (as defined in
the Current Issuer Conditions) during which the Current Issuer Notes
become so repayable, in accordance with the Current Issuer Conditions
(with consequential amendments as necessary) except that the rates of
interest need not be published.
2.7 Exercise by Trustee following Default: If a Note Event of Default has
occurred and is continuing, the Note Trustee shall exercise any or all
of the rights and powers vested in it by these presents and use the same
degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs in accordance with Section 315(c) of the Trust Indenture
Act.
3. Form, Issue and Deposit of Note Certificates
3.1 Global Note Certificates:
(a) The US Notes will be initially offered and sold pursuant to a
Registration Statement filed with the SEC. Each class of the US
Notes will be issued in fully registered global form and be
initially represented by a US Global Note Certificate and which,
in aggregate, will represent the aggregate Principal Amount
Outstanding of the US Notes.
(b) The Reg S Notes will be initially offered and sold outside the
United States to non-US persons pursuant to Reg S. Each class of
the Reg S Notes will be issued in fully registered global form and
be initially represented by a Reg S Global Note Certificate and
which, in aggregate, will represent the aggregate Principal Amount
Outstanding of the Reg S Notes.
(c) The Global Note Certificates shall be issued by the Current Issuer
and (1) in the case of the Dollar Notes, the Dollar Global Note
Certificates will be registered in the name of Cede & Co. as
nominee for DTC, and be deposited with, the DTC Custodian and (2)
in the case of the Euro Notes and the Sterling
6
Notes, the Euro Global Note Certificates and the Sterling Global
Note Certificates will be registered in the name of Citivic
Nominees Limited as nominee for, and will be deposited with, the
Common Depositary.
(d) Interests in the US Global Note Certificates and the Reg S Global
Note Certificates shall be exchangeable, in accordance with their
respective terms and as set out in Clause 3.3 (Individual Note
Certificates) hereof, for Individual Note Certificates.
3.2 Form of Global Note Certificates: The Global Note Certificates shall be
printed or typewritten and shall be in the form or substantially in the
respective forms set out in Schedule 1 (Forms of Global Note
Certificates) and may be a facsimile which the Current Issuer shall
deposit with the DTC Custodian or the Common Depositary, as the case may
be. Each Global Note Certificate shall represent such of the outstanding
Current Issuer Notes of the relevant class as shall be specified therein
and shall be endorsed with the relevant Current Issuer Conditions and
each shall provide that it shall represent the aggregate Principal
Amount Outstanding of the relevant class of Current Issuer Notes from
time to time endorsed on the relevant Global Note Certificate and that
the aggregate Principal Amount Outstanding of the Current Issuer Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases and transfers
of interests therein in accordance with the terms of these presents and
the Current Issuer Paying Agent and Agent Bank Agreement. Any notation
on the Register to reflect the amount of any increase or decrease in the
Principal Amount Outstanding of the Current Issuer Notes represented by
a Global Note Certificate shall be made by or on behalf of the Registrar
in accordance with such Global Note Certificate and the Current Issuer
Paying Agent and Agent Bank Agreement. The Global Note Certificates
shall be issued only in registered form without coupons or talons and
signed manually or in facsimile by a person duly authorised by the
Current Issuer on behalf of the Current Issuer and the Current Issuer
shall procure that the Global Note Certificates shall be authenticated
by or on behalf of the Registrar on the Closing Date. The Global Note
Certificates so executed and authenticated shall be binding and valid
obligations of the Current Issuer, notwithstanding that such duly
authorised person no longer holds that office at the time the Registrar
authenticates the relevant Global Note Certificate. Title to the Current
Issuer Notes shall only pass by and upon the registration in the
Register in respect thereof in accordance with the provisions of the
Current Issuer Paying Agent and Agent Bank Agreement.
3.3 Individual Note Certificates: The Current Issuer shall issue Individual
Note Certificates only if one or more of the following applies while the
Current Issuer Notes are represented by Global Note Certificates. At any
time after the 40th day following the later of the Closing Date and the
date of the issue of such Global Note Certificates:
(a) (i) (in the case of the Dollar Global Note Certificates) DTC has
notified the Current Issuer that it is at any time unwilling or
unable to continue as, or has ceased to be, a clearing agency
registered under the Exchange Act, and a successor to DTC
registered as a clearing agency under the Exchange Act is not able
to be appointed by the Current Issuer within 90 days of such
notification; or (ii) (in the case of the Euro Global Note
Certificates and the Sterling Global Note Certificates) both
Euroclear and Clearstream,
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Luxembourg are closed for business for a continuous period of 14
days (other than by reason of holiday, statutory or otherwise) or
announce an intention permanently to cease business and do so
cease to do business and no alternative clearing system
satisfactory to the Note Trustee is available; or
(b) as a result of any amendment to, or change in, the laws or
regulations of the United Kingdom (or of any political
sub-division thereof) or of any authority therein or thereof
having power to tax or in the interpretation or administration by
a revenue authority or a court or administration of such laws or
regulations which becomes effective on or after the Closing Date,
the Current Issuer or any Paying Agent is or will be required to
make any deduction or withholding from any payment in respect of
the Current Issuer Notes which would not be required were the
Current Issuer Notes represented by Individual Note Certificates.
If required by this Clause 3.3 (Individual Note Certificates), then the
Current Issuer shall, at its sole cost and expense within 30 days of the
occurrence of the relevant event, issue Individual Note Certificates of
the same class as the class of Current Issuer Notes represented by the
relevant Global Note Certificate.
If Individual Note Certificates are issued, the beneficial interests
represented by the Reg S Global Note Certificate representing each class
shall be exchanged by the Current Issuer for Reg S Individual Note
Certificates of that class and the beneficial interests represented by
the US Global Note Certificate representing each class shall be
exchanged by the Current Issuer for US Individual Note Certificates of
that class.
3.4 Form of Individual Note Certificates: The Individual Note Certificates
shall be printed or typewritten in accordance with all applicable legal
and stock exchange requirements and be in the form or substantially in
the relevant form set out in Schedule 2 (Forms of Individual Note
Certificates). Individual Note Certificates will be in the
denominations, and transferable in units, of (i) US$1,000 and US$10,000
(in the case of the Dollar Notes) (ii) (pound)1,000 or (pound)10,000 (in
the case of the Sterling Notes) (iii) (euro)50,000 (in the case of the
Euro Notes) each, shall be serially numbered and shall be endorsed with
the relevant Current Issuer Conditions and a form of transfer in the
form or substantially in the relevant form also set out in Schedule 2
(Forms of Individual Note Certificates). Title to the Individual Note
Certificates shall only pass by and upon the registration in the
Register in respect thereof in accordance with the provisions of the
Current Issuer Paying Agent and Agent Bank Agreement. The Individual
Note Certificates shall be issued only in registered form and signed
manually or in facsimile by a person duly authorised by or on behalf of
the Current Issuer and the Current Issuer shall procure that the
Individual Note Certificates shall be authenticated by or on behalf of
the Registrar. Each Individual Note Certificate so executed and
authenticated shall be a binding and valid obligation of the Current
Issuer notwithstanding that such duly authorised person no longer holds
that office at the time the Registrar authenticates the relevant
Individual Note Certificate.
3.5 Indemnity: If the Current Issuer is obliged to issue or procure the
issue of any Individual Note Certificate pursuant to Clause 3.3
(Individual Note Certificates) but fails to do so within 30 days of the
occurrence of the relevant event described in Clause 3.3 (Individual
Note Certificates), then the Current Issuer shall indemnify the Note
Trustee and the relevant Noteholders and keep them indemnified against
any
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loss or damage incurred by any of them if the amount received by the
Note Trustee or the relevant Noteholders in respect of the Current
Issuer Notes is less than the amount that would have been received had
Individual Note Certificates been issued in accordance with Clause 3.4
(Form of Individual Note Certificates). If and for so long as the
Current Issuer discharges its obligations under this indemnity, the
breach by the Current Issuer of the provisions of Clause 3.4 (Form of
Individual Note Certificates) shall be deemed to be cured ab initio.
4. Covenant of Compliance
4.1 Covenant: The Current Issuer covenants with the Note Trustee that it
will comply with and perform and observe all the provisions of these
presents, the Current Issuer Notes (including the Current Issuer
Conditions), the Current Issuer Deed of Charge, the Current Issuer
Paying Agent and Agent Bank Agreement, and the documents executed
pursuant thereto and the other Current Issuer Transaction Documents. The
Current Issuer Conditions shall be binding on the Current Issuer, the
Noteholders, the Note Trustee and all persons claiming through or under
any of them. The Current Issuer Notes are subject to the provisions of
these presents, all of which shall be binding on the Current Issuer, the
Noteholders, the Note Trustee and all persons claiming through or under
any of them.
4.2 On trust: The Note Trustee shall hold the benefit of the covenants
contained in this Clause 4 (Covenant of Compliance) upon trust for
itself and the Noteholders according to its and their respective
interests.
5. Covenants by the Current Issuer
The Current Issuer hereby covenants with the Note Trustee that, so long
as any of the Current Issuer Notes remains outstanding, it will:
(a) Books and Records: at all times keep such books of account and
records as may be necessary to comply with all applicable laws and
so as to enable accounts of the Current Issuer to be prepared and
allow the Note Trustee and any person appointed by the Note
Trustee free access to such books of account and records at all
reasonable times during normal business hours;
(b) Accounts for Stock Exchange: cause to be prepared and certified by
the Auditors of the Current Issuer in respect of each Financial
Year, accounts in such form as will comply with all relevant legal
and accounting requirements and all requirements for the time
being of any stock exchange, competent listing authority and/or
quotation system on which the Current Issuer Notes are listed,
quoted and/or traded;
(c) Noteholder Information: send to the Note Trustee two copies of
every balance sheet, profit and loss account, report, circular and
notice of general meeting and every other document issued or sent
to its shareholders or holders of securities other than its
shareholders (including the Noteholders) (or any class of them) as
soon as practicable after the issue or publication thereof;
(d) Information: so far as permitted by applicable law, give or
procure to be given to the Note Trustee such opinions,
certificates, information and evidence as it
9
shall require and in such form as it shall require, including
without limitation the procurement by the Current Issuer of all
such certificates called for by the Note Trustee pursuant to these
presents or the purpose of the discharge or exercise of the
duties, trusts, powers, authorities and discretions vested in it
under these presents or by operation of law;
(e) Notice of Note Event of Default: give notice in writing to the
Note Trustee forthwith upon becoming aware of the occurrence of
any Note Event of Default or any Potential Note Event of Default
immediately upon becoming aware thereof, including the status of
any such default or matter and what action the Current Issuer is
taking or proposes to take with respect thereto, and without
waiting for the Note Trustee to take any action;
(f) Certificates Relating to Financial Information: give to the Note
Trustee (a) within 14 days after demand by the Note Trustee
therefor and (b) (without the necessity for any such demand)
promptly after the publication of its audited accounts in respect
of each Financial Year commencing with the Financial Year first
ending after the date hereof and in any event not later than 180
days after the end of each such Financial Year a certificate
signed by two directors of the Current Issuer to the effect that
as at a date not more than seven days prior to the date of such
certificate (the "certification date") there did not exist and had
not existed since the certification date of the previous
certificate (or in the case of the first such certificate the date
hereof) any Note Event of Default (or if such exists or existed
specifying the same) and that during the period from and including
the certification date of the last such certificate (or in the
case of the first such certificate the date hereof) to and
including the certification date of such certificate the Current
Issuer has complied, with all its obligations contained in these
presents and each of the Current Issuer Transaction Documents to
which it is a party or (if such is not the case) specifying the
respects in which it has not so complied;
(g) Notice of Deferral of Payments: as soon as practicable after
becoming aware that any part of a payment of interest on the
Current Issuer Notes will be deferred or that a payment previously
deferred will be made in accordance with Condition 4 (Interest),
give notice thereof to the Noteholders in accordance with the
Current Issuer Conditions and, for so long as the Current Issuer
Notes are listed on the Official List of the UK Listing Authority
and admitted to trading by the London Stock Exchange and/or such
other exchange(s) or securities market(s) upon which the Current
Issuer Notes may become listed, to the UK Listing Authority and to
the London Stock Exchange and/or such other exchange(s) or
securities market(s);
(h) Further Assurances: so far as permitted by applicable law, at all
times execute and do all such further documents, acts and things
as may be necessary at any time or times in the opinion of the
Note Trustee to give effect to these presents and the other
Current Issuer Transaction Documents;
(i) Agent Bank, Reference Banks etc.: at all times maintain an Agent
Bank, four Reference Banks, a Paying Agent, a Transfer Agent and a
Registrar in accordance with the Current Issuer Conditions;
10
(j) Notification of Non-Payment: procure that any Paying Agent notify
the Note Trustee forthwith in the event that (i) such Paying Agent
does not, on or before any Payment Date or due date, as the case
may be, for any payment in respect of any of the Current Issuer
Notes, receive unconditionally pursuant to the Current Issuer
Paying Agent and Agent Bank Agreement the full amount in the
requisite currency of the monies payable on such Payment Date or
due date, as the case may be, on all such Current Issuer Notes, or
(ii) there are insufficient funds in Sterling, Euro or US dollars,
as the case may be, available to the relevant Paying Agent to
discharge the amount of the monies payable on such Payment Date or
due date, as the case may be;
(k) Notification of Late Payment: in the event of the unconditional
payment to the Paying Agents or the Note Trustee of any sum due in
respect of any of the Current Issuer Notes or any of them being
made after the due date for payment thereof, forthwith give or
procure to be given notice to the relevant Noteholders in
accordance with the Current Issuer Conditions that such payment
has been made;
(l) Listing and Admission to Trading: use reasonable endeavours to
maintain the listing of the Current Issuer Notes on the Official
List of the UK Listing Authority and their admission to trading by
the London Stock Exchange or, if it is unable to do so having used
reasonable endeavours, use reasonable endeavours to obtain and
maintain a quotation or listing of the Current Issuer Notes on
such other stock exchange or exchanges or securities market or
markets as the Current Issuer may decide (with the prior written
approval of the Note Trustee) and shall also upon obtaining a
quotation or listing of the Current Issuer Notes on such other
stock exchange or exchanges or securities market or markets enter
into a trust deed supplemental to these presents to effect such
consequential amendments to these presents as the Note Trustee may
require or as shall be requisite to comply with the requirements
of any such stock exchange or securities market;
(m) Change of Agents, etc.: subject to the Current Issuer Paying Agent
and Agent Bank Agreement, give notice to the Noteholders in
accordance with the Current Issuer Conditions of any appointment,
resignation or removal of any Agent Bank, Reference Bank, Paying
Agent, Transfer Agent or Registrar (other than the appointment of
the initial Agent Bank, Reference Banks, Paying Agents, Transfer
Agent and Registrar) after, except in the case of resignation,
having obtained the prior written approval of the Note Trustee
(not to be unreasonably withheld or delayed) thereto or any change
of the Specified Office of any Agent Bank, Paying Agent, Transfer
Agent or Registrar provided always that so long as any of the
Current Issuer Notes remains outstanding, in the case of the
termination of the appointment of the Agent Bank, the Transfer
Agent or the Registrar, or so long as any of the Current Issuer
Notes remains liable to prescription, in the case of the
termination of the appointment of the Principal Paying Agent, no
such termination shall take effect until a new Agent Bank, the
Transfer Agent, Registrar or Principal Paying Agent (as the case
may be) has been appointed on terms previously approved in writing
by the Note Trustee;
11
(n) Pre-Approval of Notices: obtain the prior written approval of the
Note Trustee to, and upon publication promptly give to the Note
Trustee and the Rating Agencies two copies of, every notice given
to the Noteholders in accordance with the Current Issuer
Conditions (such approval, unless so expressed, not to constitute
approval for the purposes of Section 21 of the Financial Services
and Markets ▇▇▇ ▇▇▇▇ (the "FSMA") of the United Kingdom of any
such notice the content of which is an invitation or inducement to
engage in investment activities within the meaning of Section 21
of the FSMA);
(o) Meetings: from time to time as required or contemplated by these
presents or as reasonably requested by the Note Trustee, make
available through the Paying Agents or otherwise such documents as
may be required by the Noteholders in connection with Meetings;
(p) Compliance with Current Issuer Paying Agent and Agent Bank
Agreement: (A) observe and comply with its obligations and use its
reasonable endeavours to procure that the Agent Bank, the Paying
Agents, the Transfer Agent and the Registrar comply with and
perform all their respective obligations under the Current Issuer
Paying Agent and Agent Bank Agreement and any notice given by the
Note Trustee pursuant to Clause 2.5(a) and not make any amendment
or modification to such agreement or agree to waive or authorise
any breach thereof without the prior written approval of the Note
Trustee and notify the Note Trustee forthwith upon becoming aware
of any breach by any of the Agent Bank, the Paying Agents, the
Transfer Agent and/or the Registrar, and (B) ensure that each
Paying Agent under the Current Issuer Paying Agent and Agent Bank
Agreement agrees in writing to (1) hold funds received by such
Paying Agent for the payment of any sums due in respect of any
Current Issuer Notes for the relevant Noteholders or the Note
Trustee in trust to the extent required by Section 317(b) of the
Trust Indenture Act, and (2) notify the Note Trustee of any
default by the Current Issuer in making any such payment;
(q) Compliance with Current Issuer Transaction Documents: observe and
comply with its obligations and use its reasonable endeavours to
procure that each other party to any of the Current Issuer
Transaction Documents complies with and performs all its
respective obligations under any Current Issuer Transaction
Document and not make any amendment or modification to such
agreement or agree to waive or authorise any breach thereof
without the prior written approval of the Note Trustee and notify
the Note Trustee forthwith upon becoming aware of any breach by
such other party to any Current Issuer Transaction Document;
(r) Individual Note Certificates: notify the Note Trustee upon the
occurrence of any of the events referred to in Clause 3.3
(Individual Note Certificates) and shall promptly give notice
thereto and of its obligations to issue Individual Note
Certificates to the Noteholders in accordance with Condition 14
(Notice to Noteholders);
(s) Exercise of Redemption Rights: subject to paragraph (t) below, in
the event that any notice of prepayment of the Current Issuer
Intercompany Loan is given under Clause 8 (Prepayment) of the
Intercompany Loan Terms and
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Conditions, the Current Issuer shall exercise its right to redeem
the Current Issuer Notes on the same Payment Date under Condition
5(D) (Optional Redemption in Full) or, as applicable, Condition
5(E) (Optional Redemption for Tax and other Reasons);
(t) Redemption Requirements: not redeem or, as the case may be, give
notice of redemption to Noteholders of all or any part of a class
or classes of Current Issuer Notes pursuant to Condition 5(D)
(Optional Redemption in Full) or Condition 5(E) (Optional
Redemption for Tax and other Reasons) unless it shall first have
provided to the Note Trustee such certificates and opinions as may
be required to be given to the Note Trustee pursuant to and in
accordance with Condition 5(D) (Optional Redemption in Full) or,
as the case may be Condition 5(E)(Optional Redemption for Tax and
other Reasons);
(u) United States Reporting Requirements: file with the Note Trustee
copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe) which
the Current Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act within 15 days after it
files them with the SEC and comply with the other provisions of
Section 314(a) of the Trust Indenture Act;
(v) Interest in Current Issuer Charged Property: ensure that, save as
permitted in these presents, the Current Issuer Deed of Charge and
the other Current Issuer Transaction Documents, no person other
than the Current Issuer and the Note Trustee shall have any
equitable or beneficial interest in the Current Issuer Charged
Property;
(w) Maintenance of Current Issuer Cash Manager: ensure that there is
at all times a cash manager appointed in accordance with the
provisions of the Current Issuer Cash Management Agreement;
(x) Tax Deduction: take reasonable steps to ensure that it does not
engage in any course of conduct that would lead to a deduction,
for United Kingdom corporation tax purposes, in respect of accrued
interest or discount on the Current Issuer Notes by the Current
Issuer being denied, postponed or restricted (whether such denial,
postponement or restriction results from the application of
paragraph 2 or 13 of Schedule 9 of the Finance ▇▇▇ ▇▇▇▇ or
otherwise);
(y) United Kingdom and United States Tax Status: ensure that it is at
all times solely resident in the United Kingdom for United Kingdom
tax purposes and has no branch, business establishment or other
fixed establishment outside the United Kingdom; and furthermore,
ensure that it will not engage in any activities in the United
States (directly or through agents), will not derive any income
from United States sources as determined under United States
income tax principles, will not hold any property if doing so
would cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United
States income tax principles, and will not (and will use its best
efforts to procure that any affiliate of the Current Issuer,
including Funding, will not) take any position that would
contradict the
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treatment of the Current Issuer Notes as indebtedness for United
States federal income tax purposes;
(z) Current Issuer Pre-Enforcement Priority of Payments: prior to any
enforcement of the security created under the Current Issuer Deed
of Charge, ensure that amounts standing to the credit of the
Current Issuer Transaction Account on a Payment Date will be
applied by the Current Issuer in or towards satisfaction of such
of the obligations set out in the applicable Current Issuer
Pre-Enforcement Priority of Payments as may be, at any given time,
then due and payable (in each case only if and to the extent that
payments or provisions of a higher order of priority which are
also due and payable or, where relevant, are likely to fall due at
that time or prior to the next succeeding Payment Date have been
made or provided for in full);
(aa) Availability of Information: make available for inspection by
Noteholders at the Specified Office of the Principal Paying Agent
during normal business hours on any London Business Day copies of
each balance sheet and profit and loss account sent to the Note
Trustee pursuant to these presents, the Current Issuer Paying
Agent and Agent Bank Agreement and the other Current Issuer
Transaction Documents;
(bb) Ratings: furnish, or procure that there is furnished, from time to
time, any and all documents, instruments, information and
undertakings that may be reasonably necessary in order to maintain
the current ratings of the Current Issuer Notes by the Rating
Agencies (save that when any such document, instrument,
information and/or undertaking is not within the possession or
control of the Current Issuer, the Current Issuer agrees to use
its reasonable efforts to furnish, or procure that there is
furnished, from time to time any such documents, instruments,
information and undertakings as may be reasonably necessary in
order to maintain the current ratings of the Current Issuer Notes
by the Rating Agencies);
(cc) Calculations: procure that there are done on its behalf, all
calculations required pursuant to the Current Issuer Conditions;
(dd) DTC, Euroclear and Clearstream, Luxembourg: use its reasonable
endeavours to procure that DTC, Euroclear and/or Clearstream,
Luxembourg (as the case may be) issue(s) any certificate or other
document requested by the Note Trustee acting reasonably pursuant
to these presents as soon as practicable after such request;
(ee) Information Regarding Noteholders: pursuant to Section 312(a) of
the Trust Indenture Act, furnish or cause to be furnished to the
Note Trustee on 31st March and 30th September of each year,
commencing 31st March 2004, and at such other times as the Note
Trustee may request in writing, all information in the possession
or control of the Current Issuer or of any of its Paying Agents as
to the names and addresses of the Noteholders, and requiring the
Note Trustee to preserve, in as current a form as is reasonably
practicable, all such information so furnished to it;
14
(ff) Officers' Certificates and Opinions of Counsel; Statements to be
Contained Therein: upon any application, demand or request by the
Current Issuer to the Note Trustee to take any action under any of
the provisions of these presents (other than the issuance of
Current Issuer Notes) and upon request of the Note Trustee,
furnish to the Note Trustee an officers' certificate and opinion
of counsel complying with the provisions of Section 314 of the
Trust Indenture Act (an "Officers' Certificate" and "Opinion of
Counsel", respectively);
(gg) Protection of Security: promptly after the execution and delivery
of these presents and each supplement hereto, pursuant to Section
314(b) of the Trust Indenture Act furnish to the Note Trustee an
Opinion of Counsel stating that in the opinion of such counsel,
appropriate steps have been taken to protect the security
interests of the Note Trustee in the Current Issuer Charged
Property under the Current Issuer Deed of Charge and reciting the
details of such action, or stating that in the opinion of such
counsel no such action is necessary; and the Current Issuer shall
furnish annually to the Note Trustee, not more than three (3)
months after the anniversary of the signing of this Deed,
commencing with calendar year 2004, an Opinion of Counsel stating
either that, in the opinion of such counsel, (i) such action has
been taken as is necessary for the proper protection of the
security interests of the Note Trustee in the Current Issuer
Charged Property under the Current Issuer Deed of Charge and
reciting the details of such action or (ii) no such action is
necessary for any of such purposes;
(hh) Authorised Signatories: upon the execution of this Deed and
thereafter forthwith upon any change of the same, deliver to the
Note Trustee (with a copy to the Principal Paying Agent and the
Registrar) a list of the Authorised Signatories of the Current
Issuer, together with certified specimen signatures of the same;
and
(ii) Current Issuer Notes: in order to enable the Note Trustee to
ascertain the number and amount of Current Issuer Notes for the
time being outstanding for any of the purposes referred to in the
proviso to the definition of "outstanding" contained in Clause
1.6, deliver to the Note Trustee forthwith upon being so requested
in writing by the Note Trustee a certificate in writing signed by
two Authorised Signatories of the Current Issuer setting out the
total number and the principal amount of the Current Issuer Notes,
if any, which:
(i) up to and including the date of such certificate have been
purchased by the Current Issuer and cancelled; and
(ii) are at the date of such certificate beneficially held by or
for the account of the Current Issuer, any of its
subsidiaries or holding companies or other subsidiaries of
such holding companies.
6. Enforcement
6.1 Proceedings: At any time after the occurrence of a Note Event of
Default, the Note Trustee may, at its discretion and without notice (and
in compliance with Section 317(a) of the Trust Indenture Act), recover
judgment in its own name and as trustee of an express trust against the
Current Issuer for the whole amount of principal and
15
interest remaining unpaid; institute such proceedings and/or take other
action against or in relation to the Current Issuer or any other person
as it may think fit to enforce the obligations of the Current Issuer
under these presents, the Current Issuer Notes and/or any of the other
Current Issuer Transaction Documents but it shall not be bound to take
such action save as provided in Clause 7 (Proceedings, Actions and
Indemnification).
6.2 Exercise of Powers: The Note Trustee shall be entitled to enforce the
obligations of the Current Issuer under the Current Issuer Notes
(including the Current Issuer Conditions) and to exercise any other
rights, powers, authorities and discretions conferred upon the Note
Trustee in the Current Issuer Conditions as scheduled to this Trust
Deed, which shall be read and construed as one document with the Current
Issuer Notes.
6.3 Evidence of Default: Unless the contrary be proved, proof that as
regards any specified Current Issuer Note the Current Issuer has made
default in paying any amount due in respect of such Current Issuer Note
shall be sufficient evidence that the Current Issuer has made the like
default as regards all other Current Issuer Notes in respect of which
the corresponding amount is then due and payable in accordance with the
Current Issuer Conditions and for the purposes of this Clause 6.3
(Evidence of Default) an amount shall be a corresponding amount
notwithstanding that it is due in respect of a Current Issuer Note of a
different denomination from that in respect of the above specified
Current Issuer Note. The Note Trustee may file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Note Trustee and the Noteholders allowed in any
judicial proceedings relative to the Current Issuer, its creditors or
its property.
7. Proceedings, Actions and Indemnification
7.1 The Note Trustee shall not be bound to take any proceedings mentioned in
Clause 6.1 (Proceedings) or any other action in relation to these
presents, the Current Issuer Notes or any documents executed pursuant
thereto or any of the other Current Issuer Transaction Documents to
which the Note Trustee is a party unless:
(a) it shall have been so directed by an Extraordinary Resolution of
the Senior Noteholders or the Mezzanine Noteholders or the Class M
Noteholders or the Junior Noteholders as appropriate; or
(b) it shall have been so requested in writing by the holders of at
least one quarter of the aggregate Principal Amount Outstanding of
the Senior Notes or by the holders of at least one quarter of the
aggregate Principal Amount Outstanding of the Mezzanine Notes or
by the holders of at least one quarter of the aggregate Principal
Amount Outstanding of the Class M Notes or by the holders of at
least one quarter of the aggregate Principal Amount Outstanding of
the Junior Notes; and
(c) in either case it shall have been indemnified and/or secured to
its satisfaction against all liabilities, proceedings, claims,
demands, costs, charges and expenses to which it may thereby
become liable or which may be incurred by it in connection
therewith,
16
provided that:
(i) the Note Trustee shall not be held liable for the
consequence of taking any such action and may take such
action without having regard to the effect of such action on
individual Noteholders or any other Current Issuer Secured
Creditor; and
(ii) save to the extent provided otherwise under the Current
Issuer Conditions, the Note Trustee shall not and shall not
be obliged to act at the direction or request of the
Mezzanine Noteholders as aforesaid unless at such time no
Senior Notes are then outstanding; and
(iii) save to the extent provided otherwise under the Current
Issuer Conditions, the Note Trustee shall not and shall not
be obliged to act at the direction or request of the Class M
Noteholders as aforesaid unless at such time no Senior Notes
and no Mezzanine Notes are then outstanding; and
(iv) save to the extent provided otherwise under the Current
Issuer Conditions, the Note Trustee shall not and shall not
be obliged to act at the direction or request of the Junior
Noteholders as aforesaid unless at such time there are no
Senior Notes, no Mezzanine Notes and no Class M Notes then
outstanding.
7.2 Only Note Trustee to Enforce: Only the Note Trustee may enforce the
provisions of these presents, the Current Issuer Conditions or the
Current Issuer Notes. No Noteholder or other Current Issuer Secured
Creditor shall be entitled to proceed directly against the Current
Issuer or any other party to any of the Transaction Documents unless the
Note Trustee having become bound as aforesaid to institute proceedings
has failed to do so within 30 days of becoming so bound and such failure
is continuing; provided that save to the extent provided in the Current
Issuer Conditions, no Junior Noteholder and no Mezzanine Noteholder
shall be entitled to take proceedings for the winding up or
administration of the Current Issuer unless there are no outstanding
Current Issuer Notes of a class with higher priority, or if Current
Issuer Notes of a class with higher priority are outstanding, there is
consent of Noteholders of not less than 25 per cent. of the aggregate
principal amount of the Current Issuer Notes outstanding of the class or
classes of Current Issuer Notes with higher priority. Notwithstanding
the foregoing and notwithstanding any other provision of these presents,
consistent with Section 316 of the Trust Indenture Act, the right of
each Noteholder to receive principal and/or interest on its Current
Issuer Notes on or after the due date for payment of such principal or
interest in accordance with the Current Issuer Conditions or to
institute suit for the enforcement of the payment of that principal
and/or interest may not be impaired or affected without the consent of
the such Noteholder. Notwithstanding anything herein to the contrary any
action to be taken under Section 316(a) of the Trust Indenture Act shall
comply with Section 316(c) of the Trust Indenture Act and the record
date for the purpose of Section 316(c) shall be such date as the Current
Issuer shall notify to the relevant Noteholders in accordance with the
Current Issuer Conditions.
17
8. Application of Moneys etc.
8.1 Application of Moneys: All moneys received by the Note Trustee in
respect of the Current Issuer Notes or amounts payable under these
presents will (including any moneys which represent principal or
interest in respect of Current Issuer Notes which have become void under
the Current Issuer Conditions) be held by the Note Trustee on trust to
apply them (subject to Clause 8.3 (Authorised Investments)) in
accordance with the Current Issuer Priority of Payments.
8.2 Investment of Moneys: If the amount of the moneys at any time available
for payment of principal and interest in respect of the Current Issuer
Notes under Clause 8.1 (Application of Moneys) shall be less than a sum
sufficient to pay at least one-tenth of the principal amount of the
Current Issuer Notes then outstanding, the Note Trustee may, at its
discretion, invest such moneys upon some or one of the investments
hereinafter authorised with power from time to time, with like
discretion, to vary such investments; and such investment with the
resulting income thereof may be accumulated until the accumulations
together with any other funds for the time being under the control of
the Note Trustee and available for the purpose shall amount to a sum
sufficient to pay at least one-tenth of the principal amount of the
Current Issuer Notes then outstanding and such accumulation and funds
(after deduction of any taxes and any other deductibles applicable
thereto) shall then be applied in the manner aforesaid.
8.3 Authorised Investments: Any moneys which under the trusts herein
contained may be invested by the Note Trustee may be invested in the
name or under the control of the Note Trustee in any Authorised
Investments and the Note Trustee may at any time vary or transfer any of
such Authorised Investments for or into other such Authorised
Investments as the Note Trustee in its absolute discretion may
determine, and shall not be responsible (save where any loss results
from the Note Trustee's fraud, wilful default or negligence or that of
its officers or employees) for any loss occasioned by reason of any such
investments whether by depreciation in value or otherwise, provided that
such Authorised Investments were made in accordance with the foregoing
provisions.
8.4 Payment to Noteholders: Any payment to be made in respect of the Current
Issuer Notes by the Current Issuer or the Note Trustee may be made in
the manner provided in the Current Issuer Conditions and any payment so
made shall be a good discharge, to the extent of such payment, to the
Current Issuer or the Note Trustee, as the case may be.
8.5 Production of Note Certificates: Upon any payment under Clause 8.4
(Payment to Noteholders) of principal or interest, the Note Certificate
representing the relevant Current Issuer Note in respect of which such
payment is made shall, if the Note Trustee so requires, be produced to
the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall, in the case of part payment, require
the Registrar to make a notation in the Register of the amount and date
of payment thereon or, in the case of payment in full, shall cause such
Note Certificate to be surrendered or shall cancel or procure the same
to be cancelled and shall certify or procure the certification of such
cancellation, in each case subject to and in accordance with the Current
Issuer Paying Agent and Agent Bank Agreement.
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9. Remuneration and Indemnification of Note Trustee
9.1 Normal Remuneration: The Current Issuer shall (subject as hereinafter
provided) pay to the Note Trustee remuneration of such amount as shall
from time to time be agreed by the Current Issuer and the Note Trustee.
The rate of remuneration in force from time to time may upon the final
redemption of the whole of the Current Issuer Notes of any Series be
reduced by such amount as shall be agreed between the Current Issuer and
the Note Trustee, such reduced remuneration to be calculated from such
date as shall be agreed as aforesaid. Such remuneration shall be payable
in priority to payments to Noteholders and other Current Issuer Secured
Creditors on each Payment Date subject to and in accordance with the
relevant Current Issuer Priority of Payments. Such remuneration shall
accrue from day to day and be payable up to and including the date when,
all the Current Issuer Notes having become due for redemption, the
redemption monies and interest thereon to the date of redemption have
been paid to the Principal Paying Agent or, as the case may be, the Note
Trustee PROVIDED THAT if upon due presentation of any Note Certificate
or any cheque payment of the monies due in respect thereof is improperly
withheld or refused, remuneration will commence again to accrue until
payment to Noteholders is made.
9.2 Extra Remuneration: In the event of the occurrence of a Note Event of
Default or the Note Trustee considering it expedient or necessary or
being requested by the Current Issuer to undertake duties which the Note
Trustee and the Current Issuer agree to be of an exceptional nature or
otherwise outside the scope of the normal duties of the Note Trustee
under these presents, the Current Issuer shall pay to the Note Trustee
such additional remuneration as shall be agreed between them;
9.3 Failure to Agree: In the event of the Note Trustee and the Current
Issuer failing to agree:
(a) (in a case to which Clause 9.1 (Normal Remuneration) applies) upon
normal remuneration; or
(b) (in a case to which Clause 9.2 (Extra Remuneration) applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee under
these presents, or upon such additional remuneration;
such matters shall be determined by an investment bank (acting as an
expert and not as an arbitrator) selected by the Note Trustee and
approved by the Current Issuer or, failing such approval, nominated (on
the application of the Note Trustee) by the President for the time being
of The Law Society of England and Wales (the expenses involved in such
nomination and the fees of such investment bank being payable by the
Current Issuer) and the determination of any such investment bank shall
be final and binding upon the Note Trustee and the Current Issuer.
9.4 Expenses: In addition to the remuneration hereunder, the Current Issuer
shall on written request, pay all other costs, charges and expenses
(against production of invoices) which the Note Trustee may properly
incur in relation to:
(a) the negotiation, preparation and execution of, the exercise of its
powers and discretions and the performance of its duties under
these presents and any
19
other Current Issuer Transaction Documents including, but not
limited to legal and travelling expenses; and
(b) any other action taken by or on behalf of the Note Trustee to
enforce the obligations of the Current Issuer under or resolving
any doubt in respect of these presents and/or any of the other
Current Issuer Transaction Documents.
9.5 Indemnity: The Current Issuer shall indemnify the Note Trustee in
respect of all proceedings, claims, demands, losses, costs, charges,
expenses and liabilities to which it (or any person appointed by it to
whom any trust, power, authority or discretion may be delegated by it in
the execution or purported execution of the trusts, powers, authorities
or discretions vested in it by or pursuant to these presents and any of
the other Current Issuer Transaction Documents) may be or become liable
or which may be properly incurred by it (or any such person as
aforesaid) in the execution or purported execution of any of its trusts,
powers, authorities and discretions hereunder or its functions under any
such appointment or in respect of any other matter or thing done or
omitted in any way relating to these presents and any of the other
Current Issuer Transaction Documents provided that it is expressly
stated that Clause 10.12 (Note Trustee Liable for Negligence etc.) shall
apply in relation to these provisions.
9.6 Stamp Duties: The Current Issuer shall, pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of
doubt any duty levied under the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ as amended and
supplemented, (if any) payable in the United Kingdom and/or Jersey on or
arising out of or in consequence of:
(a) the execution and delivery of these presents and any other Current
Issuer Transaction Document to which the Note Trustee is a party;
(b) the constitution and issue of the Current Issuer Notes;
(c) the initial delivery of the Note Certificates representing the
Current Issuer Notes; and
(d) any action in any jurisdiction taken by or on behalf of the Note
Trustee. If the Note Trustee (or any Noteholder or Current Issuer
Secured Creditor) where permitted under these presents so to do)
shall take any proceedings against the Current Issuer in any other
jurisdiction and if for the purpose of any such proceedings these
presents or any Note Certificates are taken into any such
jurisdiction and any stamp duties or other duties or taxes become
payable thereon in any such jurisdiction, the Current Issuer will
pay (or reimburse the person making payment of) such stamp duties
or other duties or taxes (including penalties).
9.7 VAT: The Current Issuer shall in addition pay to the Note Trustee an
amount equal to any value added tax or similar tax chargeable in respect
of its remuneration under these presents.
9.8 Interest: Subject as provided in Clause 9.9 (Payment), all sums payable
by the Current Issuer under this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall be payable on demand or, in the
case of any remuneration payable under Clause 9.1 (Normal Remuneration)
on the due date specified therein and shall
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carry interest at the rate per annum, which is one per cent. per annum
above the base rate from time to time of the National Westminster Bank
Plc from the date on which they were paid, charged or incurred by the
Note Trustee or, in the case of remuneration, the due date for payment
thereof, to the date of actual payment, and in all other cases shall (if
not paid on the date specified in such demand or, if later, within three
days after such demand and, in either case, the Note Trustee so
requires) carry interest at such rate from the date specified in such
demand.
9.9 Payment: Notwithstanding the other provisions of this Deed, any amount
owing by the Current Issuer pursuant to this Clause 9 (Remuneration and
Indemnification of Note Trustee) shall only be payable by the Current
Issuer subject to and in accordance with the applicable Current Issuer
Priority of Payments which applies at such time.
9.10 Apportionment: The Note Trustee shall be entitled in its absolute
discretion to determine in respect of which Series of Current Issuer
Notes any costs, charges, expenses or liabilities incurred under these
presents have been incurred or to allocate such costs, charges, expenses
or liabilities between two or more Series of Current Issuer Notes.
9.11 Survival: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 9 (Remuneration and Indemnification
of Note Trustee) shall continue in full force and effect notwithstanding
such discharge.
10. Supplement to the Trustee Acts
10.1 Trustee ▇▇▇ ▇▇▇▇ and Trustee ▇▇▇ ▇▇▇▇: The Note Trustee shall have all
the powers conferred upon trustees by the Trustee ▇▇▇ ▇▇▇▇ and the
Trustee ▇▇▇ ▇▇▇▇ of England and Wales and by way of supplement thereto
it is expressly declared as set out in the remaining provisions of this
Clause 10 (Supplement to Trustee Acts) (which provisions, except as
expressly provided therein, shall be in lieu of the provisions contained
in Section 315(a) of the Trust Indenture Act).
10.2 Reliance on Information:
(a) The Note Trustee may in relation to these presents or the Current
Issuer Transaction Documents act and rely upon the opinion or
advice of, or a certificate or a report or any information
obtained from, any lawyer, banker, valuer, surveyor, securities
company, broker, auctioneer, accountant or other expert in the
United Kingdom or elsewhere, whether obtained by the Current
Issuer, the Note Trustee or otherwise, whether or not any of the
aforesaid or any engagement letter or other document entered into
by the Note Trustee and the relevant person in connection
therewith contains any monetary or other limit on the liability of
the relevant person and the Note Trustee shall not be responsible
for any loss occasioned by so acting or relying on. Any such
opinion, advice, certificate or information may be sent or
obtained by letter, facsimile reproduction or in any other form
and the Note Trustee shall not be liable for acting in good faith
on any opinion, advice, certificate or information purporting to
be so conveyed although the same shall contain some error or shall
not be authentic provided that such error or lack of authenticity
is not manifest.
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(b) Except in the event of wilful default or manifest error, the Note
Trustee may call for and shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of the
Current Issuer or any other person in respect of every matter and
circumstance for which a certificate is expressly provided for
under these presents, the Current Issuer Conditions or any other
Current Issuer Transaction Document and to call for and rely upon
a certificate of the Agent Bank, any Paying Agent, Registrar,
Transfer Agent, any Reference Bank or any other person reasonably
believed by it to be genuine as to any other fact or matter prima
facie within the knowledge of such Agent Bank, Paying Agent,
Registrar, Transfer Agent, Reference Bank or such other person as
sufficient evidence thereof and the Note Trustee shall not be
bound in any such case to call for further evidence or be
responsible for any loss, liability, costs, damages, expenses or
inconvenience that may be caused by it failing to do so.
10.3 Powers and Duties:
(a) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be
liable whatsoever for the nature, status, creditworthiness or
solvency of the Current Issuer. Each Noteholder and each other
Current Issuer Secured Creditor shall be solely responsible for
making its own independent appraisal of and investigation into the
financial condition, creditworthiness, affairs, status and nature
of the Current Issuer and the Note Trustee shall not at any time
have any responsibility for the same and each Noteholder and other
Current Issuer Secured Creditors shall not rely on the Note
Trustee in respect thereof.
(b) Save as required for the purposes of the Trust Indenture Act, the
Note Trustee shall not be responsible for the execution, legality,
effectiveness, adequacy, genuineness, validity or enforceability
or admissibility in evidence of any Current Issuer Transaction
Document or any other document entered into in connection
therewith or any security thereby constituted or purported to be
constituted thereby nor shall it be responsible or liable to any
person because of any invalidity of any provision of such
documents or the unenforceability thereof, whether arising from
statute, law or decision of any court.
(c) The Note Trustee shall not be responsible for the scope or
accuracy of any recitals, statements, warranty, representation or
covenant of any party (other than the Note Trustee) contained
herein or in any other Current Issuer Transaction Document or any
other document entered into in connection therewith and shall
assume the accuracy and correctness thereof.
(d) The Note Trustee may accept without enquiry, requisition or
objection such title as the Current Issuer may have to the Current
Issuer Charged Property or as Funding may have to the Funding
Charged Property or any part thereof from time to time and shall
not be required to investigate or make any enquiry into or be
liable for any defect in the title of the Current Issuer to the
Current Issuer Charged Property or of Funding to the Funding
Charged Property or any part thereof from time to time whether or
not any defect was known to the Note Trustee or might have been
discovered upon examination, inquiry or investigation and whether
or not capable of remedy.
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(e) The Note Trustee shall not be bound to give notice to any person
of the execution of these presents or of an Event of Default under
the Current Issuer Intercompany Loan Agreement nor shall it have
any duty to make any investigation in respect of or in any way be
liable whatsoever for the registration, filing, protection or
perfection of any security constituted by any Current Issuer
Transaction Document relating to the Current Issuer Charged
Property or the priority of the security created thereby and shall
not be liable for any failure, omission or defect in perfecting,
protecting, procuring the registration of or further assuring the
security created or purported to be created thereby.
(f) The Note Trustee shall not have any duty to make any investigation
in respect of or in any way be liable whatsoever for the failure
to call for delivery of documents of title to or require any
transfers, legal mortgages, charges or other further assurances in
relation to any of the assets the subject matter of any of these
presents or any other document.
(g) The Note Trustee shall be under no obligation to monitor or
supervise and shall not have any duty to make any investigation in
respect of or in any way be liable whatsoever for the performance
or observance by the Current Issuer or any other person of the
provisions of these presents or any other Current Issuer
Transaction Document and shall be entitled to assume that each
person is properly performing and complying with its obligations.
(h) The Note Trustee shall not have any responsibility for or have any
duty to make any investigation in respect of or in any way be
liable whatsoever for the existence, accuracy or sufficiency of
any legal or other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or required to
be delivered or obtained at any time in connection with the
Current Issuer Charged Property or any Current Issuer Transaction
Document.
(i) The Note Trustee shall have no responsibility whatsoever to any
Current Issuer Secured Creditor as regards any deficiency which
might arise because the Note Trustee is subject to any Tax in
respect of the Current Issuer Charged Property or any part thereof
or any income therefrom or any proceeds thereof or is required by
law to make any withholding or deduction from any payment to any
Current Issuer Secured Creditor.
(j) The Note Trustee will not be responsible or liable for any
inadequacy or unfitness of any Current Issuer Charged Property as
security or any decline in value of any loss realised upon any
disposition of the Current Issuer Charged Property.
(k) The Note Trustee shall not be responsible for, nor shall it have
any liability with respect to, any loss or theft of the Current
Issuer Charged Property.
(l) The Note Trustee shall not be liable or responsible for any loss,
cost, damage, expense or inconvenience which may result from
anything done or omitted to be done by it under these presents or
under any of the other Current Issuer Transaction Documents save
where the same arises as a result of the Note Trustee's fraud,
wilful default or gross negligence.
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(m) The Note Trustee shall not be responsible for the receipt or
application by the Current Issuer of the proceeds of the Current
Issuer Notes, the exchange of any Global Note Certificate for
another Global Note Certificate or Individual Note Certificates or
the exchange of any Individual Note Certificate for another
Individual Note Certificate or the delivery of any Global Note
Certificate or Individual Note Certificates to the person(s)
entitled to it or them.
(n) The Note Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to such assets of
the trust as the Note Trustee may determine, including for the
purpose of depositing with a custodian this Deed or any Current
Issuer Transaction Document and the Note Trustee shall not be
responsible for any loss, liability, expense, demand, cost, claim
or proceedings incurred by reason of the misconduct, omission or
default on the part of any person appointed by it hereunder or be
bound to supervise the proceedings or acts of any such person.
(o) The Note Trustee shall (save as expressly otherwise provided in
these presents or in any other Current Issuer Transaction
Document) as regards all rights, powers, authorities and
discretions vested in it by these presents or any other Current
Issuer Transaction Document, or by operation of law, have absolute
and uncontrolled discretion as to the exercise or non-exercise
thereof and whenever the Note Trustee is bound to act at the
request or direction of the Noteholders or any class of them, the
Note Trustee shall nevertheless not be so bound unless first
indemnified to its satisfaction against all actions, proceedings,
claims and demands to which it may render itself liable and all
costs, expenses, damages and liabilities which it may incur by so
doing.
(p) The Note Trustee as between itself and the Noteholders or any
class of them shall have full power to determine all questions and
doubts arising in relation to any of the provisions of these
presents and/or any other Current Issuer Transaction Document and
every such determination, whether made upon a question actually
raised or implied in the acts or proceedings of the Note Trustee,
shall be conclusive and shall bind the Note Trustee, the
Noteholders and the other Current Issuer Secured Creditors.
(q) In connection with the exercise by it of any of its trusts,
powers, authorities and discretions under these presents
(including without limitation any power to authorise any amendment
or to waive any breach or to make any determination) the Note
Trustee shall always have regard to all the Noteholders, provided
that:
(i) without prejudice to the provisions of sub-paragraph (ii)
below where it is required to have regard to the interests
of the Noteholders, it shall have regard to the interests of
the Noteholders as a class and, in particular but without
prejudice to the generality of the foregoing, shall not have
regard to, or be in any way liable for, the consequences of
any exercise thereof for any individual Noteholder resulting
from their being domiciled or resident or otherwise
connected with or subject to the jurisdiction of, any
particular territory or any political sub-division thereof
and the Note Trustee shall not be entitled to require, nor
shall
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any Noteholder be entitled to claim, from the Current
Issuer, the Note Trustee or any other person any
indemnification or payment in respect of any tax consequence
of any such exercise upon individual Noteholders;
(ii) except where expressly provided otherwise in these presents
or any other Current Issuer Transaction Document, the Note
Trustee shall solely have regard to the interests of the
Noteholders provided that (a) if in the opinion of the Note
Trustee there is a conflict between the interests of the
Senior Noteholders, on the one hand and the interests of the
Mezzanine Noteholders, the Class M Noteholders and/or the
Junior Noteholders on the other hand, the Note Trustee shall
have regard only to the interests of the Senior Noteholders
or (b) if in the opinion of the Note Trustee there is a
conflict between the interests of the Mezzanine Noteholders
on the one hand and the interests of the Class M Noteholders
and/or Junior Noteholders on the other hand, the Note
Trustee shall have regard only to the interests of the
Mezzanine Noteholders or (c) if in the opinion of the Note
Trustee there is a conflict between the interests of the
Class M Noteholders on the one hand and the interests of the
Junior Noteholders on the other hand, the Note Trustee shall
have regard only to the interests of the Class M
Noteholders; but so that this proviso shall not apply in the
case of powers, authorities or discretions in relation to
which it is expressly stated that they may be exercised by
the Note Trustee only if in its opinion the interests of all
the Noteholders would not be materially prejudiced thereby;
and
(iii) it shall not have regard to, or be in any way liable for,
the consequences of any exercise thereof for any other
Current Issuer Secured Creditor or any other person.
(r) The Note Trustee may determine whether or not a default in the
performance by the Current Issuer of any obligation under the
provisions of this Deed or any other Current Issuer Transaction
Document or a default in the performance by Funding of any
obligation under the Current Issuer Intercompany Loan Agreement is
capable of remedy and/or whether the same is materially
prejudicial to the interests of the Noteholders or any class or
classes of them and if the Note Trustee shall certify that any
such default is, in its opinion, not capable of remedy and/or
materially prejudicial to the interests of the Noteholders or any
class or classes of them, such certificate shall be conclusive and
binding upon the Current Issuer, the Noteholders and the other
Current Issuer Secured Creditors.
(s) The Note Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay an agent on any
terms, whether or not a lawyer or other professional person, to
transact or conduct, or concur in transacting or conducting, any
business and to do or concur in doing all acts required to be done
by the Note Trustee (including the receipt and payment of monies).
(t) In relation to any asset held by the Note Trustee under these
presents, the Note Trustee may appoint any person to act as its
nominee on any terms.
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(u) Any trustee of these presents being a lawyer, accountant, broker
or other person engaged in any profession or business shall be
entitled to charge and be paid all usual professional and other
charges for business transacted and acts done by him or his firm
in connection with the trusts of this Deed and the Current Issuer
Transaction Documents and also his charges in addition to
disbursements for all other work and business done and all time
spent by him or his firm in connection with matters arising in
connection with this Deed and the Current Issuer Transaction
Documents, including matters which might or should have been
attended to in person by a trustee not being a banker, lawyer,
broker or other professional person.
(v) The Note Trustee may, in the execution of all or any of the
trusts, powers, authorities and discretions vested in it by these
presents or any of the other Current Issuer Transaction Documents,
act by responsible officers or a responsible officer for the time
being of the Note Trustee. The Note Trustee may also, whenever it
thinks expedient in the interests of the Noteholders, whether by
power of attorney or otherwise, delegate to any person or persons
all or any of the trusts, rights, powers, duties, authorities and
discretions vested in it by these presents or any of the other
Current Issuer Transaction Documents. Any such delegation may be
made upon such terms and subject to such Current Issuer Conditions
and subject to such regulations (including power to sub-delegate)
as the Note Trustee may think fit in the interests of the
Noteholders. The Note Trustee shall give prompt notice to the
Current Issuer of the appointment of any delegate as aforesaid and
shall procure that any delegate shall also give prompt notice of
the appointment of any sub-delegate to the Current Issuer.
(w) If the Note Trustee exercises reasonable care in selecting any
custodian, agent, delegate, nominee or any other person appointed
under this Clause 10.3 (Powers and Duties) (each, an "Appointee")
it will not have any obligation to supervise such Appointee or be
responsible for any loss, liability, costs, claim, proceedings or
expenses incurred by reason of such Appointee's misconduct,
omission or default or the misconduct, omission or default of any
substitute lawfully appointed by such Appointee.
(x) Where it is necessary or desirable for any purpose in connection
with these presents to convert any sum from one currency to
another it shall (unless otherwise provided by this Deed or
required by law) be converted at such rate or rates in accordance
with such method and as at such date for the determination of such
rate of exchange, as may be specified by the Note Trustee in its
absolute discretion but having regard to current rates of exchange
if available and the Note Trustee shall not be liable for any loss
occasioned by the said conversion under this paragraph (x) and any
rate mentioned and date so specified shall be binding on the
Current Issuer Secured Creditors.
(y) Any consent given by the Note Trustee for the purposes of these
presents or any of the other Current Issuer Transaction Documents
may be given on such terms and subject to such conditions (if any)
as the Note Trustee thinks fit and may be given retrospectively.
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(z) The Note Trustee shall not be liable for any error of judgment
made in good faith by any officer or employee of the Note Trustee
assigned by the Note Trustee to administer its corporate trust
matters unless the Note Trustee was negligent in ascertaining the
pertinent facts.
(aa) The Note Trustee shall not (unless required by law or ordered to
do so by a court of competent jurisdiction) be required to
disclose to any Noteholder or any other person any information
made available to the Note Trustee by the Current Issuer or any
other person in connection with the trusts of these presents or
any other Current Issuer Transaction Documents and no Noteholder
or any other person shall be entitled to take any action to obtain
from the Note Trustee any such information. The Note Trustee shall
not be responsible for exercising the rights of any of the parties
under the Current Issuer Transaction Documents or considering the
basis upon which the approvals or consents are granted by any of
the parties under the Current Issuer Transaction Documents.
(bb) Notwithstanding anything else in these presents, the Current
Issuer Notes or any other Current Issuer Transaction Document, the
Note Trustee may refrain from doing anything which would or might
in its opinion be contrary to any law of any jurisdiction or any
directive or regulation of any governmental agency or which would
or might otherwise render it liable to any person and may do
anything which is, in its opinion, necessary to comply with any
such law, directive or regulation.
(cc) The Note Trustee shall not be liable to any person by reason of
having acted upon an Extraordinary Resolution in writing or any
Extraordinary Resolution or other resolution whether in writing or
purporting to have been passed at any Meeting of all or any class
or classes in respect whereof minutes have been made and signed
even though subsequent to its acting it may be found that there
was some defect in the constitution of the Meeting or the passing
of the resolution or (in the case of an Extraordinary Resolution
or other resolution in writing) that not all Noteholders had
signed the Extraordinary Resolution or other resolution or that
for any reason the resolution was not valid or binding upon such
Noteholders.
(dd) Without prejudice to the right of the Note Trustee to require
and/or accept any other evidence, the Note Trustee may accept as
conclusive evidence of any fact or matter in relation to the
Current Issuer or required to be certified by the Current Issuer
under the Current Issuer Conditions, a certificate signed by two
directors of the Current Issuer and the Note Trustee shall not be
bound in any such case to call for further evidence or be
responsible for any liability that may be occasioned by it or any
other person acting on such certificate.
(ee) The Note Trustee shall not be liable to any person by reason of
having accepted as valid or not having rejected any Note
Certificate purporting to be such and subsequently found to be
forged or not authentic.
(ff) The Note Trustee shall not be liable to the Current Issuer or any
Noteholder by reason of having accepted as valid or not having
rejected any entry on the
27
Register later found to be forged or not authentic and can assume
for all purposes in relation hereto that any entry on the Register
is correct.
(gg) The Note Trustee shall be entitled to assume, for the purposes of
exercising any power, right, trust, authority, duty or discretion
under or in relation to these presents or any of the other Current
Issuer Transaction Documents, (i) that such exercise will not be
materially prejudicial to the interests of any class of Senior
Noteholders if each of the Rating Agencies has confirmed that the
then current rating by it of the Senior Notes would not be
adversely affected by such exercise, (ii) that such exercise will
not be materially prejudicial to the interests of any class of
Mezzanine Noteholders if each of the Rating Agencies has confirmed
that the then current rating by it of the Mezzanine Notes would
not be adversely affected by such exercise, (iii) that such
exercise will not be materially prejudicial to the interests of
the Class M Noteholders if each of the Rating Agencies has
confirmed that the then current rating by it of the Class M Notes
would not be adversely affected by such exercise and (iv) that
such exercise will not be materially prejudicial to the interests
of any class of Junior Noteholders if each of the Rating Agencies
has confirmed that the then current rating by it of the Junior
Notes will not be adversely affected by such exercise.
(hh) The Note Trustee may call for any certificate or other document to
be issued by DTC, Euroclear or Clearstream, Luxembourg as to the
Principal Amount Outstanding of the Current Issuer Notes standing
to the account of any person. Any such certificate or other
document shall be conclusive and binding for all purposes. The
Note Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any certificate or other
document to such effect purporting to be issued by DTC, Euroclear
or Clearstream, Luxembourg and subsequently found to be forged or
not authentic.
(ii) The Note Trustee shall have no responsibility for the maintenance
of any rating of any of the Current Issuer Notes by the Rating
Agencies or any other person.
(jj) If required by Section 313(a) of the Trust Indenture Act, within
60 days after 31st December of any year and commencing 31 December
2004, the Note Trustee shall deliver to each Noteholder a brief
report dated as of such 31st December that complies with Section
313(a) of the Trust Indenture Act. The Note Trustee also shall
comply with Sections 313(b), 313(c) and 313(d) of the Trust
Indenture Act. Reports delivered pursuant to this paragraph (jj)
shall be sent as provided in Clause 19 (Notices).
(kk) The Note Trustee shall comply with Trust Indenture Act Section
311(a), excluding any creditor relationship listed in Trust
Indenture Act Section 311(b). A Note Trustee who has resigned or
been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein. The provisions of Trust
Indenture Act Section 311 shall apply to the Current Issuer as the
obligor of the Current Issuer Notes.
28
(ll) If a Note Event of Default occurs and is continuing and if it is
known to an Authorised Officer of the Note Trustee, the Note
Trustee shall mail to each Noteholder notice of such Note Event of
Default within 90 days after it occurs.
(mm) The Note Trustee has no responsibility to verify or monitor the
contents of, or (if applicable) to check any calculations
contained in, any reports, information, documents, Officers'
Certificates and Opinions of Counsel delivered to the Note Trustee
in accordance with paragraphs (u) (United States Reporting
Requirements), (ee) (Information Regarding Noteholders) or (ff)
(Officers' Certificates and Opinions of Counsel; Statements to be
Contained Therein) of Clause 5 (Covenants by Current Issuer) or
Clause 16 (Certificates and Opinions), and is under no obligation
to inform Noteholders of the contents of any such reports,
information, documents, Officers' Certificates and Opinions of
Counsel, other than allowing Noteholders upon reasonable notice,
to inspect such reports, information, documents, Officers'
Certificates and Opinions of Counsel.
(nn) The powers conferred by these presents upon the Note Trustee or
any Receiver shall be in addition to and not in substitution for
any powers which may from time to time be conferred on the Note
Trustee or any such Receiver by statute or under common law.
(oo) The Note Trustee has no duties or responsibilities except those
expressly set out in this Deed or in the other Current Issuer
Transaction Documents.
(pp) In the absence of knowledge or express notice to the contrary, the
Note Trustee may assume without enquiry (other than requesting a
certificate of the Current Issuer) that no Current Issuer Notes
are for the time being held by or for the benefit of the Current
Issuer.
(qq) The Note Trustee may, without the consent of the Current Issuer or
the Noteholders prescribe such regulations regarding the giving of
directions by the Noteholders as provided in the Current Issuer
Conditions, as the Note Trustee may in its sole discretion
determine.
(rr) Without prejudice to the provisions of any Current Issuer
Transaction Documents relating to insurance, the Note Trustee
shall not be under any obligation to insure any of the Current
Issuer Charged Property or the Funding Charged Property or any
deeds or documents of title or other evidence in respect of the
Current Issuer Charged Property or the Funding Charged Property or
to require any other person to maintain any such insurance or
monitor the adequacy of any such insurance and shall not be
responsible for any liability which may be suffered by any person
as a result of the lack of or inadequacy of any such insurance.
(ss) The Note Trustee shall have no liability whatsoever for any loss,
cost, damages or expenses directly or indirectly suffered or
incurred by a person as a result of the delivery by the Note
Trustee to the Current Issuer or to any other party to the Current
Issuer Transaction Documents of a certificate as to material
prejudice pursuant to the Current Issuer Conditions or any Current
29
Issuer Transaction Documents on the basis of an opinion formed by
it in good faith.
(tt) For the purpose of either Condition 5(D) (Optional Redemption in
Full) or Condition 5(E) (Optional Redemption for Tax and other
Reasons), the Note Trustee shall not be satisfied that the Current
Issuer will be in a position to fulfil its obligations referred to
therein unless, inter alia, either (i) the Current Issuer has
available to it sufficient cash in the Current Issuer Transaction
Account and/or in Authorised Investments which will mature on or
before the relevant Payment Date or (ii) the Current Issuer has
entered into a legally binding contract with an entity (a) the
long term unsecured debt of which is rated at least as high as the
then current rating of the Current Issuer Notes by the Rating
Agencies or (b) any of whose short term unsecured debt is rated
A-1 by S&P and P-1 by Moody's to provide sufficient cash on or
before the relevant Payment Date, in each case to enable the
Current Issuer to fulfil its obligations as aforesaid.
10.4 No Financial Liability: Notwithstanding any other provision of these
presents or of any other Current Issuer Transaction Document, nothing
shall require the Note Trustee to risk its own funds or otherwise incur
any financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers or otherwise in connection
with these presents or any other Current Issuer Transaction Document
(including, without limitation, forming any opinion or employing any
legal, financial or other adviser), if it shall believe that repayment
of such funds or adequate indemnity against such risk or liability is
not assured to it. The Note Trustee shall not be responsible for
exercising the rights of any of the parties under the Current Issuer
Transaction Documents or considering the basis upon which the approvals
or consents are granted by any of the parties under the Current Issuer
Transaction Documents.
10.5 Ascertaining Default: The Note Trustee shall not be responsible or
liable for:
(a) exercising any rights or powers which are assigned to it by any
party to the Current Issuer Transaction Documents, including,
without limitation, any servicing, administration and management
functions in relation to the Mortgage Loans and shall not be
liable to any person for the exercise or non-exercise of any such
rights and powers;
(b) ascertaining whether a default has occurred under the terms of any
of the Current Issuer Transaction Documents and nor is the Note
Trustee responsible for taking any action in connection with any
such default or alleged default;
10.6 Rating of Current Issuer Notes: The Note Trustee shall have no
responsibility for the maintenance of any rating of the Current Issuer
Notes by the Rating Agencies or any other credit-rating agency or any
other person.
10.7 Delivery of Certificates: The Note Trustee shall have no liability
whatsoever for any loss, cost damages or expenses directly or indirectly
suffered or incurred by the Current Issuer, any Noteholder or any other
person as a result of the delivery by the Note Trustee of a certificate,
or the omission by it to deliver a certificate, to the Current Issuer as
to material prejudice, on the basis of an opinion formed by it in good
30
faith.
10.8 Assumption of No Default: Except to the extent required pursuant to
Section 315(b) of the Trust Indenture Act, the Note Trustee shall not be
bound to ascertain whether any Current Issuer Note Event of Default or
Potential Current Issuer Event of Default has happened and, until it
shall have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Current Issuer Note
Event of Default or Potential Current Issuer Event of Default has
happened and that the Current Issuer is observing and performing all the
obligations on its part under the Current Issuer Notes and these
presents and no event has happened as a consequence of which any Current
Issuer Notes may become repayable.
10.9 Assumption of no Intercompany Loan Default: The Note Trustee shall not
be bound to ascertain whether any Intercompany Loan Event of Default or
Potential Intercompany Loan Event of Default has happened and, until it
shall have actual knowledge or express notice to the contrary, the Note
Trustee shall be entitled to assume that no such Intercompany Loan Event
of Default or Potential Intercompany Loan Event of Default has happened
and that Funding is observing and performing all the obligations on its
part;
10.10 Commercial Transactions: The Note Trustee shall not, and no director,
officer or employee of any corporation being a Note Trustee hereof shall
by reason of the fiduciary position of the Note Trustee be in any way
precluded from making any commercial contracts or entering into any
commercial transactions with any party to the Current Issuer Transaction
Documents, whether directly or through any subsidiary or associated
company, or from accepting the trusteeship of any other debenture stock,
debentures or securities of any party to the Current Issuer Transaction
Documents, and without prejudice to the generality of these provisions,
it is expressly declared that such contracts and transactions include
any contract or transaction in relation to the placing, underwriting,
purchasing, subscribing for or dealing with or lending monies upon or
making payments in respect of or any stock, shares, debenture stock,
debentures or other securities of any party to the Current Issuer
Transaction Documents or any contract of banking or insurance of any
party to the Current Issuer Transaction Documents and neither the Note
Trustee nor any such director, officer or employee shall be accountable
to any Noteholder or to any party to the Current Issuer Transaction
Documents for any profit, fees, commissions, interest, discounts or
share of brokerage earned, arising or resulting from any such contracts
or transactions, and the Note Trustee and any such director, officer or
employee shall also be at liberty to retain the same without accounting
therefor.
10.11 Disapplication: Section 1 of the Trustee Act 2000 shall not apply to the
duties of the Note Trustee in relation to the trusts constituted by this
Deed. Where there are any inconsistencies between the Trustee Acts and
the provisions of this Deed, the provisions of this Deed shall, to the
extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee ▇▇▇ ▇▇▇▇, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that
Act.
10.12 Note Trustee Liable for Negligence etc.: Notwithstanding any other
provision of these presents, in compliance with Section 315(d) of the
Trust Indenture Act, none of the provisions of these presents shall, in
any case in which the Note Trustee has failed to show the degree of care
and diligence required of it as trustee under these presents
31
(including any requirement under the Trust Indenture Act), having regard
to the provisions of these presents conferring on the Note Trustee any
powers, authorities or discretions, relieve the Note Trustee from or
indemnify the Note Trustee against any liabilities which by virtue of
any rule of law (including any provision of the Trust Indenture Act)
would otherwise attach to it in respect of any negligence, default,
breach of duty or breach of trust of which it may be guilty in relation
to its duties under these presents.
11. Modification and Waiver
11.1 Modification: The Note Trustee may without the consent or sanction of
relevant class or classes of the Noteholders at any time and from time
to time concur with the Current Issuer in making any modification
(except a Basic Terms Modification (as defined in Schedule 4 (Provisions
for Meetings of Noteholders) hereto)) (i) to these presents, the Current
Issuer Notes or any of the other Current Issuer Transaction Documents,
provided that the Note Trustee is of the opinion that such modification
will not be materially prejudicial to the interests of the relevant
class or classes of Noteholders; or (ii) to these presents, the Current
Issuer Notes or any of the other Current Issuer Transaction Documents,
if in the opinion of the Note Trustee such modification is of a formal,
minor or technical nature or to correct a manifest error or proven
error; or (iii) to any of the Current Issuer Transaction Documents which
it may be necessary to make or which are required by the Rating Agencies
in respect of any New Issuer or any other person who has executed an
Accession Undertaking pursuant to Clause 3.11 (New Intercompany Loans)
of the Funding Deed of Charge or Clause 2.2 (New Intercompany Loan
Agreement) of the Intercompany Loan Terms and Conditions. Any such
modification may be made on such terms and subject to such conditions
(if any) as the Note Trustee may determine, shall be binding upon the
Noteholders and, unless the Note Trustee agrees otherwise, shall be
notified by the Current Issuer to the Noteholders and the Rating
Agencies in accordance with the Current Issuer Conditions as soon as
practicable thereafter. So long as any of the Current Issuer Notes are
rated by the Rating Agencies, the Current Issuer shall notify the Rating
Agencies in writing as soon as reasonably practicable thereafter of any
modification to the provisions of these presents, the Current Issuer
Notes or any of the other Current Issuer Transaction Documents. The Note
Trustee may also agree, without the consent of the Noteholders, to a
change of the laws governing the Current Issuer Notes and/or the Current
Issuer Transaction Documents provided that such change would not, in the
opinion of the Note Trustee, be materially prejudicial to the interests
of the Noteholders.
11.2 Waiver: Subject as expressly provided otherwise in the Current Issuer
Notes or in any other Current Issuer Transaction Document, the Note
Trustee may from time to time and at any time without the consent or
sanction of the relevant class or classes of Noteholders and without
prejudice to its rights in respect of any subsequent breach, but only if
and in so far as in its opinion the interests of the relevant class or
classes of Noteholders shall not be materially prejudiced thereby, waive
or authorise any breach or proposed breach by the Current Issuer or any
other party thereto of any of the covenants or provisions contained in
these presents or in any of the other Current Issuer Transaction
Documents or determine that any Note Event of Default shall not be
treated as such for the purposes of these presents and the Current
Issuer Notes provided always that the Note Trustee shall not exercise
any powers conferred on it
32
by this Clause in contravention of any express direction given by an
Extraordinary Resolution, or of a request in writing made by the holders
of not less than 25 per cent. in aggregate principal amount of the
relevant class of Current Issuer Notes then outstanding, in accordance
with the Current Issuer Conditions (but so that no such direction or
request shall affect any waiver, authorisation or determination
previously given or made). Any such waiver, authorisation or
determination may be given or made on such terms and subject to such
conditions (if any) as the Note Trustee may determine, shall be binding
on the Noteholders and, if, but only if, the Note Trustee shall so
require, shall be notified by the Current Issuer to the Noteholders in
accordance with the Current Issuer Conditions as soon as practicable
thereafter. The provisions of this Clause 11.2 (Waivers) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded
from these presents and the Current Issuer Notes, as permitted by the
Trust Indenture Act.
11.3 Material prejudice: For the avoidance of doubt (in the context of
deciding material prejudice in respect of Clauses 11.1 (Modifications)
and 11.2 (Waiver)), if the Note Trustee considers in its sole opinion
that the Noteholders of the same class of any or all series to which the
modification or waiver relates are materially prejudiced by such
waivers, the Note Trustee will not be able to sanction such modification
or waiver itself, and will instead require an Extraordinary Resolution
of the Noteholders of the Current Issuer Notes of such class outstanding
to be passed by means of a Meeting. In accordance with the general
provision contained herein, such Extraordinary Resolution must also be
ratified by the Noteholders of the Current Issuer Notes of the higher
class or classes in order for the Extraordinary Resolution which seeks
approval of the modification or waiver to be valid and effective.
12. Entitlement to Treat holder as owner
The Current Issuer, the Note Trustee and any Paying Agent may (to the
fullest extent permitted by applicable laws) deem and treat the holder
of any Note Certificate as the absolute owner of such Note Certificate,
for all purposes (whether or not such Current Issuer Note represented by
such Note Certificate shall be overdue and notwithstanding any notation
of ownership or other writing thereon or any notice of loss or theft of
such Note Certificate), and, except as ordered by a court of competent
jurisdiction or as required by applicable law, the Current Issuer, the
Note Trustee and the Paying Agents shall not be affected by any notice
to the contrary. All payments made to any such holder shall be valid
and, to the extent of the sums so paid, effective to satisfy and
discharge the liability for the monies payable in respect of such
Current Issuer Note.
13. Currency Indemnity
13.1 Currency and Indemnity: The sole currency of account and payment (the
"Contractual Currency") for all sums payable by the Current Issuer under
or in connection with these presents, the Current Issuer Notes and the
other Current Issuer Secured Obligations including damages is (a) in
relation to any class of Current Issuer Notes, the currency in which
such class of Current Issuer Notes is denominated and (b) in relation to
Clauses 9.1 (Normal Remuneration), 9.2 (Extra Remuneration), 9.3
(Failure to Agree), 9.4 (Expenses), 9.5 (Indemnity), 9.7 (VAT) and 9.8
(Interest), pounds sterling. An amount received or recovered in a
currency other than the
33
Contractual Currency (whether as a result of, or of the enforcement of,
a judgment or order of a court of any jurisdiction, in the winding-up or
dissolution of the Current Issuer or otherwise), by the Note Trustee or
any Noteholder or other Current Issuer Secured Creditors in respect of
any sum expressed to be due to it from the Current Issuer will only
discharge the Current Issuer to the extent of the Contractual Currency
amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt
or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so). If the
Contractual Currency amount is less than the Contractual Currency amount
expressed to be due to the recipient under these presents or the Current
Issuer Notes, or the other Current Issuer Transaction Documents the
Current Issuer will indemnify the recipient against any loss sustained
by it as a result. In any event, the Current Issuer will indemnify the
recipient against the cost of making any such purchase.
13.2 Indemnities Separate: The indemnities in these presents constitute
separate and independent obligations from the other obligations in these
presents and the other Current Issuer Transaction Documents, will give
rise to separate and independent causes of action, will apply
irrespective of any indulgence granted by the Note Trustee and/or any
Noteholder or other Current Issuer Secured Creditor and will continue in
full force and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under these presents, the
Current Issuer Notes, any other Current Issuer Transaction Documents or
any other judgment or order. Any such loss as referred to in Clause 13.1
(Currency and Indemnity) shall be deemed to constitute a loss suffered
by the Note Trustee, the Noteholders or the relevant Current Issuer
Secured Creditors and no proof or evidence of any actual loss shall be
required by the Current Issuer or its liquidator or liquidators.
14. Appointment, Removal and Retirement of Note Trustee
14.1 Power of Current Issuer: Subject to the provisions of this Clause 14
(Appointment, Removal and Retirement of Note Trustee), the power of
appointing a new Note Trustee in place of an existing Note Trustee shall
be vested in the Current Issuer but such appointment or removal must be
approved by (save to the extent otherwise provided in the Current Issuer
Conditions) an Extraordinary Resolution of the Senior Noteholders, the
Mezzanine Noteholders, the Class M Noteholders and the Junior
Noteholders of the Notes then outstanding. A trust corporation may be
appointed sole trustee hereof but subject thereto there shall be at
least two trustees hereof, one at least of which shall be a trust
corporation. Any appointment of a new Note Trustee and any retirement of
an existing Note Trustee hereof shall as soon as practicable thereafter
be notified by the Current Issuer to the Noteholders. Any new Note
Trustee must meet the requirements set out in Clause 14.2 (Eligibility
and Disqualification) and Clause 14.6 (Retirement or Removal Not
Effective).
14.2 Eligibility and Disqualification: This Deed shall always have a Note
Trustee which shall be eligible to act as Note Trustee under Trust
Indenture Act Sections 310(a)(1) and 310(a)(2). The Note Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. If the Note
Trustee has or shall acquire any "conflicting interest" within the
meaning of Trust Indenture Act Section 310(b), the Note Trustee and the
Current Issuer shall comply with the provisions of Trust Indenture Act
Section 310(b); provided, however,
34
that there shall be excluded from the operation of Trust Indenture Act
Section 310(b)(1) any deed or deeds under which other securities or
certificates of interest or participation in other securities of the
Current Issuer are outstanding if the requirements for such exclusion
set forth in Trust Indenture Act Section 310(b)(1) are met. If at any
time the Note Trustee shall cease to be eligible in accordance with the
provisions of this Clause 14.2 (Eligibility and Disqualification), the
Note Trustee shall resign promptly in the manner and with the effect
specified in Clause 14.5 (Retirement or Removal of Note Trustee).
14.3 Powers of Note Trustee to appoint: Notwithstanding the provisions of
Clause 14.1 (Power of Current Issuer), the Note Trustee may (as attorney
for the Current Issuer) upon giving prior notice to the Current Issuer
but without the consent of the Current Issuer or the Noteholders appoint
any person established or resident in any jurisdiction (whether a trust
corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Note Trustee:
(a) if the Note Trustee considers such appointment to be in the
interests of the Noteholders; or
(b) for the purposes of conforming to any legal requirements,
restrictions or Current Issuer Conditions in any jurisdiction in
which any particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of these presents or any of the
other Current Issuer Transaction Documents against the Current
Issuer or any other party thereto.
The Current Issuer hereby irrevocably appoints the Note Trustee to be
its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of these presents and any other Current Issuer Transaction
Document to which the Note Trustee is a party) have such trusts, powers,
authorities and discretions (not exceeding those conferred on the Note
Trustee by these presents or any of the other Current Issuer Transaction
Documents to which the Note Trustee is a party) and such duties and
obligations as shall be conferred or imposed on it by the instrument of
appointment. The Note Trustee shall have power in like manner to remove
any such person. Such proper remuneration as the Note Trustee may pay to
any such person, together with any attributable costs, charges and
expenses incurred by it in performing its function as such separate
trustee or co-trustee, shall for the purposes of these presents be
treated as costs, charges and expenses incurred by the Note Trustee.
14.4 Multiple Trustees: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and discretions vested by these presents
and any of the other Current Issuer Transaction Documents in the Note
Trustee generally.
14.5 Retirement or Removal of Note Trustee: Subject as provided in Clause
14.6 (Retirement or Removal not Effective), any Note Trustee for the
time being of this Deed may retire at any time upon giving not less than
three months' prior notice in
35
writing to the Current Issuer without assigning any reason therefor and
without being responsible for any costs resulting from such retirement.
The Noteholders may by Extraordinary Resolution of each class of
Noteholders remove any trustee or trustees for the time being of these
presents
14.6 Retirement or Removal not Effective: The retirement or removal of any
Note Trustee shall not become effective unless (i) there remains at
least one trustee hereof being a trust corporation in office upon such
retirement or removal and (ii) while the Bank of New York remains Note
Trustee, the Bank of New York, in its capacity as Security Trustee shall
also retire or be removed simultaneously. The Current Issuer covenants
that, in the event of a trustee (being a sole trustee or the only trust
corporation) giving notice or being removed under Clause 14.5
(Retirement or Removal of Note Trustee) it shall use its best endeavours
to procure a new Note Trustee of these presents (being a trust
corporation) to be appointed as soon as reasonably practicable
thereafter (for the avoidance of doubt, on the same terms as these
presents). If within 30 days of having given notice of its intention to
retire, the Current Issuer has failed to appoint a replacement Note
Trustee, the outgoing Note Trustee will be entitled to appoint its
successor provided that the Rating Agencies confirm that the then
current ratings of the Current Issuer Notes shall not be either
downgraded or reviewed as a result of such appointment.
15. Trust Indenture Act Prevails
If any provision of these presents limits, qualifies or conflicts with
another provision which is required to be included in these presents by,
and is not subject to a contractual waiver under, the Trust Indenture
Act, the required provision of the Trust Indenture Act shall be deemed
to be incorporated into these presents and shall prevail.
16. Certificates and Opinions
16.1 Evidence of Compliance as to Conditions Precedent: Upon any request or
application by the Current Issuer to the Note Trustee to take any action
under this Trust Deed or these presents, the Current Issuer shall
furnish to the Note Trustee in accordance with Section 314(c) of the
Trust Indenture Act:
(a) an Officers' Certificate (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in these presents
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Clause 16.2 (Statements Required in Certificates and
Opinions) below) stating that, in the opinion of such counsel, all
such conditions precedent, if any, provided for in these presents
relating to the proposed action have been complied with.
16.2 Statements required in Certificates and Opinions: Each certificate and
opinion with respect to compliance with a condition or covenant provided
for in these presents or these presents, in accordance with Section
314(e) of the Trust Indenture Act, shall include:
36
(a) a statement that the person making such certificate or opinion has
read such covenant or condition and the definitions relating
thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such person, it or he has made
such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such covenant or condition has been complied with.
17. Release of Collateral
17.1 Limitation on Release: Except to the extent expressly provided in this
Clause 17 (Release of Collateral), the Note Trustee shall release the
property from the security constituted by the Current Issuer Deed of
Charge only upon receipt of a request from the Current Issuer
accompanied by an Officers' Certificate, an Opinion of Counsel and
certificates of independent parties in accordance with Trust Indenture
Act Sections 314(c) and 314(d)(1) ("Independent Certificates") or an
Opinion of Counsel in lieu of such Independent Certificates to the
effect that the Trust Indenture Act does not require any such
Independent Certificates.
17.2 Fair Value: Prior to the release of any property or securities subject
to the lien of the Current Issuer Deed of Charge, the Current Issuer
shall, in addition to any obligation imposed in this Clause 17 (Release
of Collateral) or elsewhere in these presents, furnish to the Note
Trustee an Officers' Certificate certifying or stating the opinion of
each person signing such certificate as to the fair value to the Current
Issuer of the property or securities to be so released. The officers so
certifying may consult with, and may conclusively rely upon a
certificate as to the fair value of such property provided to such
officers by an internationally recognised financial institution with
expertise in such matters. Whenever the Current Issuer is required to
furnish to the Note Trustee an Officers' Certificate certifying or
stating the opinion of any signer thereof as to the matters described in
this Clause 17.2 (Fair Value), the Current Issuer shall also deliver to
the Note Trustee an Independent Certificate as to the same matters, if
the fair value to the Current Issuer of the property to be so released
and of all other such property made the basis of any such release since
the commencement of the then current fiscal year of the Current Issuer,
as set forth in the certificates delivered pursuant to this Clause 17
(Release of Collateral), is 10% or more of the Principal Amount
Outstanding of the Current Issuer Notes, but such a certificate need not
be furnished with respect to any property so released if the fair value
thereof to the Current Issuer as set forth in the related Officers'
Certificate is less than $25,000 (or its equivalent) or less than one
per cent. of the Principal Amount Outstanding of the Current Issuer
Notes.
17.3 No Impairment: Whenever any property is to be released from the security
constituted by the Current Issuer Deed of Charge, the Current Issuer
shall also furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each
37
person signing such certificate that in the opinion of such person the
proposed release will not impair the security under the Current Issuer
Deed of Charge in contravention of the provisions hereof.
17.4 Payments under Current Issuer Transaction Documents: Notwithstanding
anything to the contrary contained herein, the Current Issuer may (a)
make cash payments out of the Current Issuer Bank Accounts relating to
the Current Issuer Notes as and to the extent permitted or required by
the Current Issuer Transaction Documents (b) act in relation to the
Current Issuer Charged Property as permitted under the Current Issuer
Deed of Charge and (c) take any other action not inconsistent with the
Trust Indenture Act.
18. Rights Cumulative
The respective rights of the Note Trustee and the Noteholders to these
presents are cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Note Trustee or any
Noteholder to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies in these
presents are cumulative and not exclusive of any remedies provided by
law.
19. Notices
19.1 Any notices or other communication or document to be given or delivered
pursuant to these presents to any of the parties hereto shall be
sufficiently served if sent by prepaid first class post, by hand or by
facsimile transmission and shall be deemed to be given (in the case of
facsimile transmission) when despatched or (where delivered by hand) on
the day of delivery if delivered before 17.00 hours on a London Business
Day or on the next London Business Day if delivered thereafter or (in
the case of first class post) when it would be received in the ordinary
course of the post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 04-1 plc
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number 020 7606 0643) for the attention of The Company Secretary
with a copy to Northern Rock plc, Northern ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number 0191 213 2203) for
the attention of the Group Secretary;
(b) in the case of the Note Trustee, to The Bank of New York, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number 020
7964 6061/6399) for the attention of (Corporate Trust) Global
Structured Finance;
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by fifteen days prior written notice in accordance
with the provisions of this Clause 19 (Notices).
19.2 Communications by Noteholders with other Noteholders: Noteholders may
communicate pursuant to Trust Indenture Act Section 312(b) with other
Noteholders
38
with respect to their rights under these presents or the Current Issuer
Notes. The Current Issuer and the Note Trustee shall have the protection
of Trust Indenture Act Section 312(c).
19.3 Notices to Noteholders: Any notice or communication mailed to
Noteholders hereunder shall be transmitted by mail to (a) all
Noteholders as the names and addresses of such Noteholders appear upon
the Register and (b) such Noteholders to whom Trust Indenture Act
Section 313(c) requires reports to be transmitted.
20. Third Party Rights
A person who is not a party to these presents may not enforce any of its
terms under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇, but this
shall not affect any right or remedy of a third party which exists or is
available apart from that Act.
21. Execution in Counterparts; Severability
21.1 Counterparts: This Trust Deed may be executed in any number of
counterparts (manually or by facsimile) and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute
one and the same instrument.
21.2 Severability: Where any provision in or obligation under these presents
shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations under these presents, or of such provision or obligation in
any other jurisdiction, shall not be affected or impaired thereby.
22. Governing Law and Jurisdiction; Appropriate Forum
22.1 Governing Law: These presents and the Current Issuer Notes are governed
by, and shall be construed in accordance with, English law.
22.2 Jurisdiction: Each of the parties hereto agrees for the benefit of the
Note Trustee and the Noteholders that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise out of or in connection with
these presents and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
22.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and
to settle any disputes, and agrees not to claim that any such court is
not a convenient or appropriate forum.
IN WITNESS of which these presents has been executed by the parties hereto as
a deed which has been delivered on the date first appearing on page one.
39
SCHEDULE 1
FORMS OF GLOBAL NOTE CERTIFICATES
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 1 CLASS [o] GLOBAL NOTE CERTIFICATE
representing
US$[o] Series 1 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 1 Class [o] Global Note Certificate is issued in respect of
the US$[o] Series 1 Class [o] Floating Rate Notes due [o] (the "Notes")
of Granite Mortgages 04-1 plc (the "Current Issuer"), and is limited to
the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] US Dollars
(US$[o])
40
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to
pay to the Holder the principal amount of this Global Note Certificate
(being at the date hereof [o] US Dollars (US$[o])) on the Payment Date
falling in [o] (or on such earlier date as the said principal amount may
become repayable in accordance with the Current Issuer Conditions or the
Current Issuer Trust Deed) and to pay interest on the principal amount
from time to time (as noted in the records of the custodian for DTC of
this Global Note Certificate) in arrear on each Interest Payment Date at
the rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be payable,
all subject to and in accordance with the Current Issuer Conditions and
the provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) The Depository Trust
Company ("DTC") has notified the Current Issuer that it is at any time
unwilling or unable to continue as, or ceases to be, a clearing agency
under the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and a successor to DTC registered as a clearing agency
under the Exchange Act is not appointed by the Current Issuer within 90
days of such notification, or (ii) as a result of any amendment to, or
change in, the laws or regulations of the United Kingdom (or of any
political subdivision thereof), or of any authority therein or thereof
having power to tax, or in the interpretation or administration by a
revenue authority or a court or administration of such laws or
regulations which becomes effective on or after the Closing Date, the
Current Issuer or any Paying Agent is or will be required to make any
deduction or withholding from any payment in respect of the Notes which
would not be required were the relevant Notes Individual Note
Certificates. Such exchange shall be effected in accordance with
paragraph 6 (Delivery of Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by or
on behalf of the Holder and/or DTC, to the Registrar of such information
as is required to complete and deliver such Individual Note Certificates
(including, without limitation, the names and addresses of the persons
in whose names the Individual Note Certificates are to be registered and
the principal amount of each such person's holding) against the
surrender of this Global Note Certificate at the Specified Office (as
defined in the Current Issuer Conditions) of the Registrar. Such
exchange shall be effected in accordance with the provisions of the
Current Issuer Paying Agent and Agent Bank Agreement and the regulations
41
concerning the transfer and registration of Notes scheduled thereto and,
in particular, shall be effected without charge to any Holder or the
Note Trustee, but against such indemnity as the Registrar may require in
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on which commercial banks are open for
business in the city in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable
and paid to the Holder of this Global Note Certificate shall be valid
and, to the extent of the sums so paid, effectual to satisfy and
discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each Holder of a Note, by the
acceptance hereof, agrees to treat this Note for U.S. federal income
tax purposes as indebtedness.
10. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of DTC or any other clearing
system (an "Alternative Clearing System") notices to Holders of Notes
represented by this Global Note Certificate may be given by delivery of
the relevant notice to DTC or (as the case may be) such Alternative
Clearing System.
11. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
12. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
13. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
42
14. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
15. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
43
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
44
FORM OF TRANSFER
FOR VALUE RECEIVED ....................................., being the registered
holder of this Global Note Certificate, hereby transfers to...................
..............................of...............................................
...............................................................................
US$ ..................................... in principal amount of the
US$[amount] Series 1 Class [o] Floating Rate Notes due [maturity] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer") and irrevocably
requests and authorises Citibank, N.A., in its capacity as Registrar in
relation to the Notes (or any successor to Citibank, N.A., in its capacity as
such) to effect the relevant transfer by means of appropriate entries in the
Register kept by it.
Dated: .............................
By: ................................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$1,000 or an
integral multiple of U.S.$1,000 in excess thereof.
45
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
46
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 2 CLASS A1 GLOBAL NOTE CERTIFICATE
representing
US$[o] Series 2 Class A1 Floating Rate Notes due [o]
1. Introduction
This Series 1 Class A1 Global Note Certificate is issued in respect of
the US$[o] Series 2 Class A1 Floating Rate Notes due [o] (the "Notes")
of Granite Mortgages 04-1 plc (the "Current Issuer"), and is limited to
the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CEDE & CO.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] US Dollars
(US$[o])
in aggregate principal amount of the Notes.
47
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to
pay to the Holder the principal amount of this Global Note Certificate
(being at the date hereof [o] US Dollars (US$[o])) on the Payment Date
falling in [o] (or on such earlier date as the said principal amount may
become repayable in accordance with the Current Issuer Conditions or the
Current Issuer Trust Deed) and to pay interest on the principal amount
from time to time (as noted in the records of the custodian for DTC of
this Global Note Certificate) in arrear on each Interest Payment Date at
the rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be payable,
all subject to and in accordance with the Current Issuer Conditions and
the provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) The Depository Trust
Company ("DTC") has notified the Current Issuer that it is at any time
unwilling or unable to continue as, or ceases to be, a clearing agency
under the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and a successor to DTC registered as a clearing agency
under the Exchange Act is not appointed by the Current Issuer within 90
days of such notification, or (ii) as a result of any amendment to, or
change in, the laws or regulations of the United Kingdom (or of any
political subdivision thereof), or of any authority therein or thereof
having power to tax, or in the interpretation or administration by a
revenue authority or a court or administration of such laws or
regulations which becomes effective on or after the Closing Date, the
Current Issuer or any Paying Agent is or will be required to make any
deduction or withholding from any payment in respect of the Notes which
would not be required were the relevant Notes Individual Note
Certificates. Such exchange shall be effected in accordance with
paragraph 6 (Delivery of Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by or
on behalf of the Holder and/or DTC, to the Registrar of such information
as is required to complete and deliver such Individual Note Certificates
(including, without limitation, the names and addresses of the persons
in whose names the Individual Note Certificates are to be registered and
the principal amount of each such person's holding) against the
surrender of this Global Note Certificate at the Specified Office (as
defined in the Current Issuer Conditions) of the Registrar. Such
exchange shall be effected in accordance with the provisions of the
Current Issuer Paying Agent and Agent Bank Agreement and the regulations
concerning the transfer and registration of Notes scheduled thereto and,
in particular, shall be effected without charge to any Holder or the
Note Trustee, but against such
48
indemnity as the Registrar may require in respect of any tax or other
duty of whatsoever nature which may be levied or imposed in connection
with such exchange. In this paragraph, "business day" means a day on
which commercial banks are open for business in the city in which the
Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable
and paid to the Holder of this Global Note Certificate shall be valid
and, to the extent of the sums so paid, effectual to satisfy and
discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each Holder of a Note, by the
acceptance hereof, agrees to treat this Note for U.S. federal income
tax purposes as indebtedness.
10. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of DTC or any other clearing
system (an "Alternative Clearing System") notices to Holders of Notes
represented by this Global Note Certificate may be given by delivery of
the relevant notice to DTC or (as the case may be) such Alternative
Clearing System.
11. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
12. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
13. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
14. Rights of Third Parties
49
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
15. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
50
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
51
FORM OF TRANSFER
FOR VALUE RECEIVED ....................................., being the registered
holder of this Global Note Certificate, hereby transfers to...................
................................... of.........................................
...............................................................................
US$ ..................................... in principal amount of the
US$[amount] Series 2 Class A1 Floating Rate Notes due [maturity] (the "Notes")
of Granite Mortgages 04-1 plc (the "Current Issuer") and irrevocably requests
and authorises Citibank, N.A., in its capacity as Registrar in relation to the
Notes (or any successor to Citibank, N.A., in its capacity as such) to effect
the relevant transfer by means of appropriate entries in the Register kept by
it.
Dated: ............................
By: ...............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$1,000 or an
integral multiple of U.S.$1,000 in excess thereof.
52
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
53
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
54
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 2 CLASS [o] GLOBAL NOTE CERTIFICATE
representing
(euro)[o] Series 2 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 2 Class [o] Global Note Certificate is issued in respect of
the (euro)[o] Series 2 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer"), and is
limited to the aggregate principal amount of
[o] Euro
((euro)[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] Euro
((euro)[o])
in aggregate principal amount of the Notes.
55
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to
pay to the Holder the principal amount of this Global Note Certificate
(being at the date hereof [o] Euro ((euro)[o])) on the Payment Date
falling in [o] (or on such earlier date as the said principal amount may
become repayable in accordance with the Current Issuer Conditions or the
Current Issuer Trust Deed) and to pay interest on the principal amount
from time to time (as noted in the records of the common depositary for
Euroclear and Clearstream, Luxembourg of this Global Note Certificate)
in arrear on each Interest Payment Date at the rates determined in
accordance with the Current Issuer Conditions together with such premium
and other amounts (if any) as may be payable, all subject to and in
accordance with the Current Issuer Conditions and the provisions of the
Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently cease business and do so cease to do
business and no alternative clearing system satisfactory to the Note
Trustee is available or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
subdivision thereof), or of any authority therein or thereof having
power to tax, or in the interpretation or administration by a revenue
authority or a court or administration of such laws or regulations which
becomes effective on or after the Closing Date, the Current Issuer or
any Paying Agent is or will be required to make any deduction or
withholding from any payment in respect of the Notes which would not be
required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by or
on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg, to
the Registrar of such information as is required to complete and deliver
such Individual Note Certificates (including, without limitation, the
names and addresses of the persons in whose names the Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Global Note Certificate
at the Specified Office (as defined in the Current Issuer Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Current Issuer Paying Agent and Agent Bank Agreement
and the regulations concerning the transfer and registration of Notes
scheduled thereto and, in particular, shall be effected without charge
to any Holder or the Note Trustee, but against such indemnity as the
Registrar may require in
56
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on which commercial banks are open for
business in the city in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable
and paid to the Holder of this Global Note Certificate shall be valid
and, to the extent of the sums so paid, effectual to satisfy and
discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "Alternative Clearing
System"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to Euroclear
and Clearstream, Luxembourg or (as the case may be) such Alternative
Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
57
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
58
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
...............................................
[manual signature]
(duly authorised)
59
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Global Note Certificate, hereby transfers to
...............................................................................
............................................................................ of
...............................................................................
...............................................................................
.................................,(euro).......................................
in principal amount of the(euro)[amount] Series 2 Class [o] Floating Rate
Notes due [maturity] (the "Notes") of Granite Mortgages 04-1 plc (the "Current
Issuer") and irrevocably requests and authorises Citibank, N.A., in its
capacity as Registrar in relation to the Notes (or any successor to Citibank,
N.A., in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the Register kept by it.
Dated: ..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (euro)500,000 or an
integral multiple of (euro)500,000 in excess thereof.
60
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
61
FORM OF GLOBAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
62
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 3 CLASS [o] GLOBAL NOTE CERTIFICATE
representing
(pound) [o] Series 3 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 3 Class [o] Global Note Certificate is issued in respect of
the (pound) [o] Series 3 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer"), and is
limited to the aggregate principal amount of
[o] Pounds Sterling
((pound)[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that:
CITIVIC NOMINEES LTD.
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of
[o] Pounds Sterling
((pound)[o])
in aggregate principal amount of the Notes.
63
4. Promise to pay
Subject only as provided in this Global Note Certificate and the Current
Issuer Conditions, the Current Issuer, for value received, promises to
pay to the Holder the principal amount of this Global Note Certificate
(being at the date hereof [o] Pounds Sterling ((pound)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time (as noted in the records of
the common depositary for Euroclear and Clearstream, Luxembourg of this
Global Note Certificate) in arrear on each Interest Payment Date at the
rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be payable,
all subject to and in accordance with the Current Issuer Conditions and
the provisions of the Current Issuer Trust Deed.
5. Exchange for Individual Note Certificates
This Global Note Certificate will be exchangeable (in whole but not in
part and free of charge to the holder) for duly authenticated and
completed individual note certificates ("Individual Note Certificates")
in substantially the form (subject to completion) set out in Schedule 2
to the Current Issuer Trust Deed only if (i) both Euroclear and
Clearstream, Luxembourg are closed for a continuous period of 14 days
(other than by reason of a holiday, statutory or otherwise) or announce
an intention to permanently cease business and do so cease to do
business and no alternative clearing system satisfactory to the Note
Trustee is available or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
subdivision thereof), or of any authority therein or thereof having
power to tax, or in the interpretation or administration by a revenue
authority or a court or administration of such laws or regulations which
becomes effective on or after the Closing Date, the Current Issuer or
any Paying Agent is or will be required to make any deduction or
withholding from any payment in respect of the Notes which would not be
required were the relevant Notes Individual Note Certificates. Such
exchange shall be effected in accordance with paragraph 6 (Delivery of
Individual Note Certificates) below.
6. Delivery of Individual Note Certificates
Whenever this Global Note Certificate is to be exchanged for Individual
Note Certificates, such Individual Note Certificates shall be issued in
an aggregate principal amount equal to the principal amount of this
Global Note Certificate within five business days of the delivery, by or
on behalf of the Holder, Euroclear and/or Clearstream, Luxembourg, to
the Registrar of such information as is required to complete and deliver
such Individual Note Certificates (including, without limitation, the
names and addresses of the persons in whose names the Individual Note
Certificates are to be registered and the principal amount of each such
person's holding) against the surrender of this Global Note Certificate
at the Specified Office (as defined in the Current Issuer Conditions) of
the Registrar. Such exchange shall be effected in accordance with the
provisions of the Current Issuer Paying Agent and Agent Bank Agreement
and the regulations concerning the transfer and registration of Notes
scheduled thereto and, in particular, shall be effected without charge
to any Holder or the Note Trustee, but against such indemnity as the
Registrar may require in
64
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"business day" means a day on which commercial banks are open for
business in the city in which the Registrar has its Specified Office.
7. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Global Note Certificate will be made in accordance
with the Current Issuer Conditions. All payments of any amounts payable
and paid to the Holder of this Global Note Certificate shall be valid
and, to the extent of the sums so paid, effectual to satisfy and
discharge the liability for the monies payable hereon.
8. Conditions apply
Save as otherwise provided herein, the Holder of this Global Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Global Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Global Note
Certificate.
9. Notices
Notwithstanding Condition 14 (Notice to Noteholders), so long as this
Global Note Certificate is held on behalf of Euroclear and Clearstream,
Luxembourg or any alternative clearing system (an "Alternative Clearing
System"), notices to Holders of Notes represented by this Global Note
Certificate may be given by delivery of the relevant notice to Euroclear
and Clearstream, Luxembourg or (as the case may be) such Alternative
Clearing System.
10. Determination of Entitlement
This Global Note Certificate is evidence of entitlement only and is not
a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Global Note Certificate.
11. Authentication
This Global Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
12. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
13. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Global Note
Certificate, but this shall not affect any right or remedy which exists
or is available apart from that Act.
65
14. Governing law
This Global Note Certificate is governed by, and shall be construed in
accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Global Note Certificate
to be signed manually or in facsimile by a person duly authorised on its
behalf.
66
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o] 2004.
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
........................................
[manual signature]
(duly authorised)
67
FORM OF TRANSFER
FOR VALUE RECEIVED ................................., being the registered
holder of this Global Note Certificate, hereby transfers to ..................
............................................................................ of
...............................................................................
...............................................................................
...............................................................................
........................................, (pound).................... in
principal amount of the(pound)[amount] Series 3 Class [o] Floating Rate Notes
due [maturity] (the "Notes") of Granite Mortgages 04-1 plc (the "Current
Issuer") and irrevocably requests and authorises Citibank, N.A., in its
capacity as Registrar in relation to the Notes (or any successor to Citibank,
N.A., in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the Register kept by it.
Dated: ..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Global Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (pound)1,000 or an
integral multiple of (pound)1,000 in excess thereof.
68
[Attached to the Global Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
69
SCHEDULE 2
FORMS OF INDIVIDUAL NOTE CERTIFICATES
--------------------------------------------------------------------------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------------------------------------------------------------------
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 1 CLASS [o] INDIVIDUAL NOTE CERTIFICATE
representing
US$[o] Series 1 Class [o] Floating Rate Notes due [o]
1. Introduction
This Series 1 Class [o] Individual Note Certificate is issued in respect
of the US$[o] Series 1 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this Individual
Note Certificate in the aggregate principal amount of:
70
US$[o]
US Dollars [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] US Dollars (US$[o])) on
the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Interest Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
71
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each holder of a Note, by the
acceptance hereof, agrees to treat this Note for U.S. federal income
tax purposes as indebtedness.
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
12. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
72
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Individual Note Certificate, hereby transfers to
................................................................................
................................................................................
of.............................................................................
................................................................................
........................................, US$ ..................................
in principal amount of the US$[amount] Series 1 Class [o] Floating Rate Notes
due [maturity] (the "Notes") of Granite Mortgages 04-1 plc (the "Current
Issuer") and irrevocably requests and authorises Citibank, N.A., in its
capacity as Registrar in relation to the Notes (or any successor to Citibank,
N.A., in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agency and Agent Bank Agreement.
Dated: ..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$1,000 or an
integral multiple of U.S.$1,000 in excess thereof.
73
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
74
--------------------------------------------------------------------------------
US$[1,000/10,000] [ISIN] [CUSIP] [COMMON CODE] [SERIES] [SERIAL NO.]
--------------------------------------------------------------------------------
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 2 CLASS A1 INDIVIDUAL NOTE CERTIFICATE
representing
US$[o] Series 2 Class A1 Floating Rate Notes due [o]
1. Introduction
This Series 2 Class A1 Individual Note Certificate is issued in respect
of the US$[o] Series 2 Class A1 Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o] US Dollars
(US$[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this Individual
Note Certificate in the aggregate principal amount of:
US$[o]
75
US Dollars [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] US Dollars (US$[o])) on
the Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Interest Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
9. Tax Treatment
The Current Issuer will treat the Notes as indebtedness for U.S.
federal income tax purposes. Each holder of a Note, by the
acceptance hereof, agrees to treat this Note for U.S. federal income
tax purposes as indebtedness.
76
10. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
11. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
12. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
77
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Individual Note Certificate, hereby transfers to
...............................................................................
............................................................................ of
...............................................................................
........................................., US$.................................
in principal amount of the US$[amount] Series 2 Class A1 Floating Rate Notes
due [maturity] (the "Notes") of Granite Mortgages 04-1 plc (the "Current
Issuer") and irrevocably requests and authorises Citibank, N.A., in its
capacity as Registrar in relation to the Notes (or any successor to Citibank,
N.A., in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agency and Agent Bank Agreement.
Dated: ..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to US$1,000 or an
integral multiple of U.S.$1,000 in excess thereof.
78
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
79
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
80
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 2 CLASS [o] INDIVIDUAL NOTE CERTIFICATE
representing
(euro)[o] Series 2 Class [o] Floating Rate Notes Due [o]
1. Introduction
This Series 2 Class [o] Individual Note Certificate is issued in respect
of the (euro)[o] Series 2 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o] Euro
((euro)[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this Individual
Note Certificate in the aggregate principal amount of:
81
(euro)[o]
Euro[amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Euro ((euro)[o])) on the
Payment Date falling in [o] (or on such earlier date as the said
principal amount may become repayable in accordance with the Current
Issuer Conditions or the Current Issuer Trust Deed) and to pay interest
on the principal amount from time to time of this Individual Note
Certificate in arrear on each Interest Payment Date at the rates
determined in accordance with the Current Issuer Conditions together
with such premium and other amounts (if any) as may be payable, all
subject to and in accordance with the Current Issuer Conditions and the
provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
82
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
83
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Individual Note Certificate, hereby transfers to
...............................................................................
...............................................................................
of ...........................................................................
...............................................................................
...............................................................................
................................., (euro)......................................
in principal amount of the (euro)[amount] Series 2 Class [o] Floating Rate
Notes due [maturity] (the "Notes") of Granite Mortgages 04-1 plc (the "Current
Issuer") and irrevocably requests and authorises Citibank, N.A., in its
capacity as Registrar in relation to the Notes (or any successor to Citibank,
N.A., in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (euro)500,000 or an
integral multiple of (euro)500,000 in excess thereof.
84
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
85
FORM OF INDIVIDUAL NOTE CERTIFICATE
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES AND, AS A MATTER OF U.S. LAW, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE LATER OF THE CLOSING DATE AND THE
COMMENCEMENT OF THE OFFERING OF THE CURRENT ISSUER NOTES MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S.
PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES.
86
GRANITE MORTGAGES 04-1 PLC
(Incorporated with limited liability in England and Wales with registered
number 4959572)
SERIES 3 CLASS [o] INDIVIDUAL NOTE CERTIFICATE
representing
(pound) [o] Series 3 Class [o] Floating Rate Notes Due [o]
1. Introduction
This Series 3 Class [o] Individual Note Certificate is issued in respect
of the (pound) [o] Series 3 Class [o] Floating Rate Notes due [o] (the
"Notes") of Granite Mortgages 04-1 plc (the "Current Issuer"), limited
to the aggregate principal amount of
[o] Pounds Sterling
((pound)[o])
The Notes are constituted by, are subject to, and have the benefit of, a
trust deed dated [o] 2004 (as amended or supplemented from time to time,
the "Current Issuer Trust Deed") between the Current Issuer and The Bank
of New York as trustee (the trustee for the time being thereof being
herein called the "Note Trustee") and are the subject of a paying agent
and agent bank agreement dated [o] 2004 (as amended or supplemented from
time to time, the "Current Issuer Paying Agent and Agent Bank
Agreement") between the Current Issuer, the Principal Paying Agent, the
Agent Bank, Citibank, N.A. as registrar (the "Registrar", which
expression includes any successor registrar appointed from time to time
in connection with the Notes), the Transfer Agent, the US Paying Agent
and the Note Trustee.
2. References to Conditions
References herein to the Current Issuer Conditions (or to any particular
numbered Condition) shall be to the Current Issuer Conditions (or that
particular one of them) attached hereto.
3. Registered Holder
This is to certify that
[Noteholder]
is the person registered in the register maintained by the Registrar in
relation to the Notes (the "Register") as the duly registered holder
(the "Holder") of Notes represented from time to time by this Individual
Note Certificate in the aggregate principal amount of:
(pound) [o]
87
Pounds Sterling [amount in words]
in aggregate principal amount of the Notes.
4. Promise to pay
Subject only as provided in this Individual Note Certificate and the
Current Issuer Conditions, the Current Issuer, for value received,
promises to pay to the Holder the principal amount of this Individual
Note Certificate (being at the date hereof [o] Pounds Sterling
((pound)[o])) on the Payment Date falling in [o] (or on such earlier
date as the said principal amount may become repayable in accordance
with the Current Issuer Conditions or the Current Issuer Trust Deed) and
to pay interest on the principal amount from time to time of this
Individual Note Certificate in arrear on each Interest Payment Date at
the rates determined in accordance with the Current Issuer Conditions
together with such premium and other amounts (if any) as may be payable,
all subject to and in accordance with the Current Issuer Conditions and
the provisions of the Current Issuer Trust Deed.
5. Payments
Payments of principal, premium (if any) and interest in respect of Notes
represented by this Individual Note Certificate will be made in
accordance with the Current Issuer Conditions. All payments of any
amounts payable and paid to the Holder of this Individual Note
Certificate shall be valid and, to the extent of the sums so paid,
effectual to satisfy and discharge the liability for the monies payable
hereon.
6. Conditions apply
Save as otherwise provided herein, the Holder of this Individual Note
Certificate shall have the benefit of, and be subject to, the Current
Issuer Conditions, and, for the purposes of this Individual Note
Certificate, any reference in the Current Issuer Conditions to "Note
Certificate" or "Note Certificates" shall, except where the context
otherwise requires, be construed so as to include this Individual Note
Certificate.
7. Determination of Entitlement
This Individual Note Certificate is evidence of entitlement only and is
not a document of title. Entitlements are determined by the Registrar by
reference to the Register and only the Holder is entitled to payment in
respect of this Individual Note Certificate.
8. Authentication
This Individual Note Certificate shall not be or become valid for any
purpose unless and until authenticated by or on behalf of Citibank, N.A.
as Registrar.
9. Definitions
Terms not defined herein have the meaning ascribed to such terms in the
Current Issuer Conditions.
88
10. Rights of Third Parties
No person shall have any right under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇ to enforce any term or condition of this Individual
Note Certificate, but this shall not affect any right or remedy which
exists or is available apart from that Act.
11. Governing law
This Individual Note Certificate is governed by, and shall be construed
in accordance with, the laws of England.
IN WITNESS whereof the Current Issuer has caused this Individual Note
Certificate to be signed manually or in facsimile by a person duly authorised
on its behalf.
GRANITE MORTGAGES 04-1 PLC
By: ..............................
[manual or facsimile signature]
(duly authorised)
ISSUED in London, England on [o].
AUTHENTICATED for and on behalf of
CITIBANK, N.A.
as Registrar without recourse, warranty, or liability
.....................................
[manual signature]
(duly authorised)
89
FORM OF TRANSFER
FOR VALUE RECEIVED ..................................................., being
the registered holder of this Individual Note Certificate, hereby transfers
to............................................................... of .........
...............................................................................
...............................................................................
............................................., (pound)..........................
in principal amount of the (pound) [amount] Series 3 Class [o] Floating Rate
Notes due [maturity] (the "Notes") of Granite Mortgages 04-1 plc (the "Current
Issuer") and irrevocably requests and authorises Citibank, N.A., in its
capacity as Registrar in relation to the Notes (or any successor to Citibank,
N.A., in its capacity as such) to effect the relevant transfer by means of
appropriate entries in the Register kept by it.
We as transferor of the Notes represented by this Individual Note Certificate
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in Schedule 2 to the Current Issuer Paying
Agent and Agent Bank Agreement.
Dated: ..............................
By: ..............................
(duly authorised)
Notes
The name of the person by or on whose behalf this form of transfer is signed
must correspond with the name of the registered holder as it appears on the
face of this Individual Note Certificate.
(a) A representative of such registered holder should state the capacity in
which he signs, e.g. executor.
(b) The signature of the person effecting a transfer shall conform to any
list of duly authorised specimen signatures supplied by the registered
holder or be certified by a recognised bank, notary public or in such
other manner as the Registrar may require.
(c) Any transfer of Notes shall be in an amount equal to (pound)1,000 or an
integral multiple of (pound)1,000 in excess thereof.
90
[Attached to the Individual Note Certificate:]
[Terms and Conditions as set out in Schedule 3]
[At the foot of the Terms and Conditions:]
PRINCIPAL PAYING AGENT REGISTRAR
[Name] [Name]
[Address] [Address]
PAYING AGENTS AND TRANSFER AGENT
[Name] [Name]
[Address] [Address]
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SCHEDULE 3
CURRENT ISSUER CONDITIONS OF THE NOTES
The following are the Terms and Conditions (the "Conditions", and any
reference to a "Condition" shall be construed accordingly) of the Notes in the
form (subject to amendment) in which they will be set out in the Current
Issuer Trust Deed. Investors should note that the issuer is referred to in the
Conditions as the "Current Issuer" and references to those documents to which
the issuer is a party are generally preceded with the words "Current Issuer".
A glossary of definitions appears in Condition 17 of these Conditions.
The Notes of the Current Issuer are constituted by the Current Issuer
Trust Deed. The security for the Notes is created pursuant to, and on the
terms set out in, the Current Issuer Deed of Charge. By the Current Issuer
Paying Agent and Agent Bank Agreement, provision is made for, inter alia, the
payment of principal and interest in respect of the Notes.
The statements in these Conditions include summaries of, and are subject
to, the detailed provisions of the Current Issuer Trust Deed, the Current
Issuer Deed of Charge and the Current Issuer Paying Agent and Agent Bank
Agreement. The Notes are also the subject of the Current Issuer Dollar
Currency Swap Agreements, the Current Issuer Euro Currency Swap Agreements and
the Current Issuer Basis Rate Swap Agreement.
Copies of the Current Issuer Trust Deed, the Current Issuer Deed of
Charge, the Current Issuer Master Definitions Schedule dated on or about the
Closing Date, the Current Issuer Paying Agent and Agent Bank Agreement and
each of the other Transaction Documents are available for inspection at the
head office for the time being of (i) the Principal Paying Agent, being at the
date hereof ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ and (ii) the US Paying Agent,
being at the date hereof 14th Floor Zone 3, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇. The Noteholders are entitled to the benefit of, are bound by, and
are deemed to have notice of, all the provisions of, and definitions contained
or incorporated in, the Current Issuer Trust Deed, the Current Issuer Deed of
Charge, the Current Issuer Intercompany Loan Agreement, the Funding Deed of
Charge, the Second Priority Funding Deed of Charge, the Current Issuer Cash
Management Agreement, the Current Issuer Paying Agent and Agent Bank
Agreement, the Current Issuer Basis Rate Swap Agreement, the Current Issuer
Dollar Currency Swap Agreements and the Current Issuer Euro Currency Swap
Agreements.
The issue of the Notes will be authorised by a resolution of the Board of
Directors of the Current Issuer passed on or about [ ] January 2004.
1. Form, Denomination, Register, Title and Transfers
(A) Form and Denomination
The Dollar Notes will initially be offered and sold pursuant to a
registration statement filed with the United States Securities and Exchange
Commission. The Series 2 Notes (other than the Series 2 Class A1 Notes) and
the Series 3 Notes will initially be offered and sold outside the United
States to non-US persons pursuant to Reg S. Each class of the Dollar Notes
will be in fully registered global form in denominations of $10,000 and
$1,000. The Dollar Notes will be issued in an aggregate principal amount
92
equal to the Principal Amount Outstanding from time to time of the Dollar
Notes. Each class of the Euro Notes will be in fully registered global form in
denominations of (euro)500,000 and integral multiples of (euro)1,000. The Euro
Notes will be issued in an aggregate principal amount equal to the Principal
Amount Outstanding from time to time of the Euro Notes. Each class of the
Sterling Notes will be in fully registered global form in denominations of
(pound)10,000 and (pound)1,000. The Sterling Notes will be issued in an
aggregate principal amount equal to the Principal Amount Outstanding from time
to time of the Sterling Notes. The Dollar Notes will be initially represented
by a US Global Note Certificate. The Series 2 Notes (other than the Series 2
Class A1 Notes) and the Series 3 Notes will be initially represented by a Reg
S Global Note Certificate.
Global Note Certificates will be exchanged for Individual Note
Certificates in definitive registered form only under certain limited
circumstances (as described in the relevant Global Note Certificate). If
Individual Note Certificates are issued, they will be serially numbered and
issued in an aggregate principal amount equal to the Principal Amount
Outstanding of the relevant Global Note Certificates and in registered form
only.
(B) Register
The Registrar will maintain the Register in respect of the Notes in
accordance with the provisions of the Current Issuer Paying Agent and Agent
Bank Agreement. In these Conditions, the "Holder" of a Note means the person
in whose name such Note is for the time being registered in the Register (or,
in the case of a joint holding, the first named thereof). A Note Certificate
will be issued to each Noteholder in respect of its registered holding. Each
Note Certificate will be numbered serially with an identifying number which
will be recorded in the Register.
(C) Title
The Holder of each Note shall (except as otherwise required by law) be
treated by the Current Issuer, the Note Trustee, the Agent Bank and any Agent
as the absolute owner of such Note for all purposes (whether or not it is
overdue and regardless of any notice of ownership, trust or any other interest
therein, any writing on the Note Certificate relating thereto (other than the
endorsed form of transfer) or any notice of any previous loss or theft of such
Note Certificate) and no person shall be liable for so treating such Holder.
(D) Transfers
Subject as provided otherwise in this Condition 1(D), a Note may be
transferred upon surrender of the relevant Note Certificate, with the endorsed
form of transfer duly completed, at the Specified Office of the Registrar or
the Transfer Agent, together with such evidence as the Registrar or (as the
case may be) such Transfer Agent may reasonably require to prove the title of
the transferor and the authority of the individuals who have executed the form
of transfer; provided, however, that a Note may not be transferred unless the
principal amount of Notes transferred and (where not all of the Notes held by
a Holder are being transferred) the principal amount of the balance of Notes
not transferred are Authorised Holdings. Where not all the Notes represented
by the surrendered Note Certificate are the subject of the transfer, a new
Note Certificate in respect of the balance of the Notes will be issued to the
transferor.
Within five Commercial Business Days of such surrender of a Note
Certificate, the Registrar will register the transfer in question and deliver
a new Note Certificate of a like
93
principal amount to the Notes transferred to each relevant Holder at its
Specified Office or (as the case may be) the Specified Office of the Transfer
Agent or (at the request and risk of any such relevant Holder) by uninsured
first class mail (and by airmail if the Holder is overseas) to the address
specified for such purpose by such relevant Holder. In this paragraph,
"Commercial Business Day" means a day on which commercial banks are open for
business in the city where the Registrar or (as the case may be) Transfer
Agent has its Specified Office.
The transfer of a Note will be effected without charge by or on behalf of
the Current Issuer, the Registrar or the Transfer Agent but against such
indemnity as the Registrar or (as the case may be) such Transfer Agent may
require in respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such transfer.
Noteholders may not require transfers of Notes to be registered during
the period of 15 days ending on the due date for any payment of principal or
interest in respect of the Notes.
All transfers of Notes and entries on the Register are subject to the
detailed regulations concerning the transfer of Notes scheduled to the Current
Issuer Paying Agent and Agent Bank Agreement. The regulations may be changed
by the Current Issuer with the prior written approval of the Note Trustee and
the Registrar. A copy of the current regulations will be mailed (free of
charge) by the Registrar to any Noteholder who requests in writing a copy of
such regulations.
2. Status, Priority and Security
(A) Status
The Class A Notes, the Class B Notes, the Class M Notes and the Class C
Notes are direct, secured and unconditional obligations of the Current Issuer
and are all secured by the same security. Payments on each class of Notes will
be made equally amongst all Notes of that class.
(B) Priority
(i) Interest
Among the Series 1 Notes, payments of interest on the Series 1 Class A
Notes will be made ahead of payments of interest on the Series 1 Class B
Notes, the Series 1 Class M Notes and the Series 1 Class C Notes, payments of
interest on the Series 1 Class B Notes will be made ahead of payments of
interest on the Series 1 Class M Notes and the Series 1 Class C Notes and
payments of interest on the Series 1 Class M Notes will be made ahead of
payments of interest on the Series 1 Class C Notes.
Among the Series 2 Notes, payments of interest on the Series 2 Class A
Notes will be made ahead of payments of interest on the Series 2 Class B
Notes, the Series 2 Class M Notes and the Series 2 Class C Notes, payments of
interest on the Series 2 Class B Notes will be made ahead of payments of
interest on the Series 2 Class M Notes and the Series 2 Class C Notes and
payments of interest on the Series 2 Class M Notes will be made ahead of
payments of interest on the Series 2 Class C Notes.
94
Among the Series 3 Notes, payments of interest on the Series 3 Class A
Notes will be made ahead of payments of interest on the Series 3 Class B
Notes, the Series 3 Class M Notes and the Series 3 Class C Notes, payments of
interest on the Series 3 Class B Notes will be made ahead of payments of
interest on the Series 3 Class M Notes and the Series 3 Class C Notes and
payments of interest on the Series 3 Class M Notes will be made ahead of
payments of interest on the Series 3 Class C Notes.
As among the Series 1 Notes, the Series 2 Notes and the Series 3 Notes:
o payments of interest on the Series 1 Class A1 Notes, the Series 1
Class A2 Notes, the Series 2 Class A1 Notes, the Series 2 Class A2
Notes and the Series 3 Class A Notes will be made in no order of
priority among them but in proportion to the respective amounts due
on the Class A Notes. These payments of interest on the Class A
Notes will be made ahead of payments of interest on each Series of
Class B Notes, each Series of Class M Notes and each Series of Class
C Notes;
o payments of interest on the Series 1 Class B Notes, the Series 2
Class B Notes and the Series 3 Class B Notes will be made in no
order of priority among them but in proportion to the respective
amounts due on the Class B Notes. These payments of interest on the
Class B Notes will be made ahead of payments of interest on each
Series of Class M Notes and each Series of Class C Notes;
o payments of interest on the Series 1 Class M Notes, the Series 2
Class M Notes and the Series 3 Class M Notes will be made in no
order of priority among them but in proportion to the respective
amounts due on the Class M Notes. These payments of interest on the
Class M Notes will be made ahead of payments of interest on each
Series of the Class C Notes; and
o payments of interest on the Series 1 Class C Notes, the Series 2
Class C Notes and the Series 3 Class C Notes will be made in no
order of priority among them but in proportion to the respective
amounts due on the Class C Notes.
(ii) Principal
Subject to there being no Trigger Event and no enforcement of the Funding
Security and/or the Current Issuer Security, no Class of Notes will be repaid
an amount of principal which is greater than the Controlled Amortisation
Amount in respect of that Class of Notes for the relevant Payment Date and,
subject also to the satisfaction of certain conditions (described below) in
relation to the repayment of principal of the Class B Notes, the Class M Notes
and the Class C Notes at any time when any Class A Notes are outstanding,
payments of principal will be made in accordance with the following priority.
Repayment of principal in respect of the Controlled Amortisation Amount
on the Series 1 Class A1 Notes will be made ahead of repayment of principal in
respect of the Controlled Amortisation Amount on the Series 1 Class A2 Notes,
the Series 2 Class A1 Notes, the Series 2 Class A2 Notes and the Series 3
Class A Notes.
Repayment of principal in respect of the Controlled Amortisation Amount
on the Series 1 Class A2 Notes will be made ahead of repayment of principal in
respect of the Controlled Amortisation Amount on the Series 2 Class A1 Notes,
the Series 2 Class A2 Notes and the Series 3 Class A Notes.
95
Repayment of principal in respect of the Controlled Amortisation Amount
on the Series 2 Class A1 Notes, the Series 2 Class A2 Notes and the Series 3
Class A Notes will be made in no order of priority between them but in
proportion to the respective Controlled Amortisation Amounts due on the Series
2 Class A1 Notes, the Series 2 Class A2 Notes and the Series 3 Class A Notes.
Repayment of principal in respect of the Controlled Amortisation Amount
of the Series 2 Class A1 Notes, the Series 2 Class A2 Notes and the Series 3
Class A Notes will be made ahead of repayment of principal in respect of the
Controlled Amortisation Amount on the Class B Notes.
Repayment of principal in respect of the Controlled Amortisation Amount
on the Series 1 Class B Notes, Series 2 Class B Notes and the Series 3 Class B
Notes will be made in no order of priority among them but in proportion to the
respective Controlled Amortisation Amounts due on the Class B Notes. However,
repayment of principal in respect of the Controlled Amortisation Amount on the
Class B Notes will be made ahead of repayment of principal in respect of the
Controlled Amortisation Amount on the Class M Notes.
Repayment of principal in respect of the Controlled Amortisation Amount
on the Series 1 Class M Notes, the Series 2 Class M Notes and the Series 3
Class M Notes will be made in no order of priority among them but in
proportion to the respective Controlled Amortisation Amounts due on the Class
M Notes. However, repayment of principal in respect of the Controlled
Amortisation Amount on the Class M Notes will be made ahead of repayment of
principal in respect of the Controlled Amortisation Amount on the Class C
Notes.
Repayment of principal in respect of the Controlled Amortisation Amount
on the Series 1 Class C Notes, the Series 2 Class C Notes and the Series 3
Class C Notes will be made in no order of priority among them but in
proportion to the respective Controlled Amortisation Amounts due on the Class
C Notes.
The above priority of payments will change and the Current Issuer will
make repayments of principal in accordance with and subject to the Current
Issuer Priority of Payments as set out in the Current Issuer Cash Management
Agreement or, as the case may be, the Current Issuer Deed of Charge (1)
following the occurrence of a Trigger Event and/or, (2) following the
enforcement of the Funding Security and/or the enforcement of the Current
Issuer Security.
If any Class A Notes are outstanding and the Issuer Arrears Test, the
Issuer Reserve Requirement and the Subordinated Principal Test (as specified
in the Current Issuer Cash Management Agreement) are not satisfied on the
relevant Payment Date, no amount of principal will be payable in respect of
the Class B Notes, the Class M Notes or the Class C Notes.
Notwithstanding the foregoing priorities, the Controlled Amortisation
Amount payable in respect of each Class of Notes is determined by a schedule
that indicates the target balance for that Class of Notes on the relevant
Payment Date and not all Classes of Notes are scheduled to receive payments of
principal on each Payment Date, with some lower ranking Classes of Notes being
repaid principal before higher ranking Classes of Notes. The Controlled
Amortisation Amount payable on some Classes of Notes will also be zero.
96
(C) Conflict between the classes of Notes
Each of the Current Issuer Trust Deed and the Current Issuer Deed of
Charge contains provisions requiring the Note Trustee to have regard to the
interests of the Class A Noteholders, the Class B Noteholders, the Class M
Noteholders and the Class C Noteholders equally as regards all powers, trusts,
authorities, duties and discretions of the Note Trustee (except where
expressly provided otherwise), but requiring the Note Trustee to have regard
(a) (for so long as there are any Class A Notes outstanding (as that term is
defined in the Current Issuer Trust Deed)) only to the interests of the Class
A Noteholders if, in the Note Trustee's opinion, there is or may be a conflict
between the interests of the Class A Noteholders and the interests of the
Class B Noteholders and/or the interests of the Class M Noteholders and/or the
interests of the Class C Noteholders, (b) subject to (a) above, (for so long
as there are any Class B Notes outstanding) only to the interests of the Class
B Noteholders if, in the Note Trustee's opinion, there is or may be a conflict
between the interests of the Class B Noteholders and the interest of the Class
M Noteholders and/or the interests of the Class C Noteholders, and (c) subject
to (a) and (b) above, (for so long as there are any Class M Notes outstanding)
only to the interests of the Class M Noteholders if, in the Note Trustee's
opinion, there is or may be a conflict between the interests of the Class M
Noteholders and the interests of the Class C Noteholders. Except where
expressly provided otherwise, so long as any of the Notes remains outstanding,
the Note Trustee is not required to have regard to the interests of any
persons (other than the class or classes of Noteholders described above)
entitled to the benefit of the Current Issuer Security.
The Current Issuer Trust Deed contains provisions limiting the powers of
the Class B Noteholders, the Class M Noteholders and the Class C Noteholders,
inter alia, to request or direct the Note Trustee to take any action or to
pass an effective Extraordinary Resolution according to the effect thereof on
the interests of the Class A Noteholders. Except in certain circumstances
described in Condition 11, the Current Issuer Trust Deed contains no such
limitation on the powers of the Class A Noteholders, the exercise of which
will be binding on the Class B Noteholders, the Class M Noteholders and the
Class C Noteholders respectively, irrespective of the effect thereof on their
interests.
Similarly, the Current Issuer Trust Deed contains provisions limiting the
powers of the Class M Noteholders and the Class C Noteholders, inter alia, to
request or direct the Note Trustee to take any action or to pass an effective
Extraordinary Resolution according to the effect thereof on the interests of
the Class B Noteholders. Except in certain circumstances described above and
in Condition 11, the Current Issuer Trust Deed contains no such limitation on
the powers of the Class B Noteholders, the exercise of which will be binding
on the Class M Noteholders and the Class C Noteholders, respectively,
irrespective of the effect thereof on their interests.
Similarly, the Current Issuer Trust Deed contains provisions limiting the
powers of the Class C Noteholders, inter alia, to request or direct the Note
Trustee to take any action or to pass an effective Extraordinary Resolution
according to the effect thereof on the interests of the Class M Noteholders.
Except in certain circumstances described above and in Condition 11, the
Current Issuer Trust Deed contains no such limitation on the powers of the
Class M Noteholders, the exercise of which will be binding on the Class C
Noteholders irrespective of the effect thereof on their interests.
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 these Conditions or any of
97
the Transaction Documents, 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 Notes would not be
adversely affected by such exercise.
The Noteholders will share in the benefit of the security created by the
Current Issuer Deed of Charge, upon and subject to the terms thereof.
(D) Security
As security for, inter alia, the payment of all monies payable in respect
of the Notes, the Current Issuer has entered into the Current Issuer Deed of
Charge creating the Current Issuer Security in favour of the Note Trustee for
itself and on trust for the Current Issuer Secured Creditors including, inter
alia, the following:
(i) an assignment by way of first fixed security of the Current Issuer's
rights and claims in respect of all security and other rights held
on trust by the Security Trustee pursuant to the Funding Deed of
Charge, save to the extent that any of the Current Issuer's rights
and claims derive from property that is situated in Jersey, which
will be assigned to the Note Trustee for the purpose of creating a
Security Interest in accordance with Jersey law;
(ii) an assignment by way of first fixed security of the Current Issuer's
rights, title, interest and benefit in and to the Transaction
Documents to which the Current Issuer is a party, including:
(a) the Current Issuer Intercompany Loan Agreement;
(b) the Funding Deed of Charge;
(c) the Second Priority Funding Deed of Charge;
(d) the Current Issuer Basis Rate Swap Agreement;
(e) any Current Issuer Dollar Currency Swap Agreement in relation
to the Dollar Notes;
(f) any Current Issuer Euro Currency Swap Agreement in relation to
the Euro Notes;
(g) the Current Issuer Paying Agent and Agent Bank Agreement;
(h) the Current Issuer Underwriting Agreement and the Current
Issuer Subscription Agreement;
(i) the Current Issuer Corporate Services Agreement;
(j) the Current Issuer Bank Account Agreement;
(k) the Current Issuer Cash Management Agreement;
(l) the Current Issuer Trust Deed;
98
(m) any Swap Collateral Ancillary Document; and
(n) such other documents as are expressed to be subject to the
charges under the Current Issuer Deed of Charge, in each case,
save to the extent that such rights, title, interest and
benefit derive from property that is situated in Jersey. To the
extent that the same are derived from property situated in
Jersey, the Current Issuer will assign such rights, title,
interest and benefit to the Note Trustee for the purpose of
creating a Security Interest in those rights, title, interest
and benefit in accordance with Jersey law;
(iii) an assignment by way of first fixed security over the Current
Issuer's rights, title, interest and benefit, in and to the Current
Issuer Transaction Accounts, any Swap Collateral Account and each
other account (if any) of the Current Issuer and all amounts or
securities standing to the credit of those accounts (including all
interest or other income or distributions earned on such amounts or
securities);
(iv) a first fixed charge (which may take effect as a floating charge)
over the Current Issuer's rights, title, interest and benefit in and
to all Authorised Investments made by or on behalf of the Current
Issuer, including all monies and income payable thereunder; and
(v) a first ranking floating charge over the whole of the assets and
undertaking of the Current Issuer which are not otherwise
effectively subject to any fixed charge or assignment by way of
security as described in (i), (ii), (iii) or (iv) above, all as more
particularly set out in the Current Issuer Deed of Charge.
3. Covenants
Save with the prior written consent of the Note Trustee or unless
provided in or contemplated under these Conditions or any of the Transaction
Documents to which the Current Issuer is a party, the Current Issuer shall
not, so long as any Note remains outstanding:
(A) Negative Pledge
create or permit to subsist any mortgage, standard security, pledge,
lien, charge or other Security Interest whatsoever (unless arising by
operation of law), upon the whole or any part of its assets (including any
uncalled capital) or its undertakings, present or future;
(B) Disposal of Assets
sell, assign, transfer, lease or otherwise dispose of, or deal with, or
grant any option or present or future right to acquire all or any of its
properties, assets, or undertakings or any interest, estate, right, title or
benefit therein or thereto or agree or attempt or purport to do any of the
foregoing;
(C) Equitable Interest
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permit any person other than itself and the Note Trustee (as to itself
and on behalf of the Current Issuer Secured Creditors) to have any equitable
or beneficial interest in any of its assets or undertakings or any interest,
estate, right, title or benefit therein;
(D) Bank Accounts
have an interest in any bank account, other than a Current Issuer Bank
Account or a Swap Collateral Account;
(E) Restrictions on Activities
carry on any business other than as described in the prospectus dated [ ]
January 2004 relating to the issue of the Dollar Notes and the related
activities described therein or as contemplated in the Transaction Documents
relating to the issue of the Notes and the making of the Current Issuer
Intercompany Loan;
(F) Borrowings
incur any indebtedness in respect of borrowed money whatsoever or give
any guarantee or indemnity in respect of any indebtedness or obligation of any
person;
(G) Merger
consolidate or merge with any other person or convey or transfer substantially
all of its properties or assets to any other person;
(H) Waiver or Consent
permit the validity or effectiveness of any of the Current Issuer Trust
Deed or the Current Issuer Deed of Charge or the priority of the security
interests created thereby to be amended, terminated, postponed, waived or
discharged, or permit any other person whose obligations form part of the
Current Issuer Security to be released from such obligations;
(I) Employees or premises
have any employees or premises or subsidiaries;
(J) Dividends and Distributions
pay any dividend or make any other distribution to its shareholders or
issue any further shares or alter any rights attaching to its shares as at the
date of the Current Issuer Deed of Charge;
(K) Purchase Notes
purchase or otherwise acquire any Note or Notes; or
(L) United States activities
engage in any activities in the United States (directly or through
agents), or derive any income from United States sources as determined under
United States income tax principles,
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or hold any property if doing so would cause it to be engaged in a trade or
business within the United States as determined under United States income tax
principles.
4. Interest
(A) Period of Accrual
Each Note bears interest on its Principal Amount Outstanding from (and
including) the Closing Date. Each Note (or, in the case of redemption in part
only of a Note, that part only of such Note) shall cease to bear interest from
its due date for redemption unless, upon due presentation, payment of the
relevant amount of principal or any part thereof is improperly withheld or
refused. In such event, interest will continue to accrue on such unpaid amount
(before as well as after any judgment) at the rate applicable to such Note up
to (but excluding) the date on which, on presentation of such Note, payment in
full of the relevant amount of principal is made, or (if earlier) the seventh
day after notice is duly given by the Principal Paying Agent or the US Paying
Agent, as the case may be, to the Holder thereof (either in accordance with
Condition 14 or individually) that upon presentation thereof being duly made,
such payment will be made, provided that upon presentation thereof being duly
made, payment is in fact made.
Whenever it is necessary to compute an amount of interest in respect of
the Notes for any period (including any Interest Period), such interest shall
be calculated:
(i) in respect of the Dollar Notes and the Euro Notes on the basis of
actual days elapsed in a 360-day year; and
(ii) in respect of the Series 3 Notes, on the basis of actual days
elapsed in a 365- day year (or, in the case of an Interest Period
ending in a leap year, a 366-day year).
(B) Interest Payment Dates and Interest Periods
Interest on the Notes is payable in arrears on each Interest Payment
Date.
The order of payments of interest to be made on the classes of Notes will
be prioritised so that interest payments due and payable on the Class C Notes
will be subordinated to interest payments due and payable on the Class M
Notes, the Class B Notes and the Class A Notes, interest payments due and
payable on the Class M Notes will be subordinated to interest payments due and
payable on the Class B Notes and the Class A Notes and interest payments due
and payable on the Class B Notes will be subordinated to interest payments due
and payable on the Class A Notes, in each case in accordance with the relevant
Current Issuer Priority of Payments.
To the extent that the funds available to the Current Issuer, subject to
and in accordance with the relevant Current Issuer Priority of Payments, to
pay interest on the Class B Notes, the Class M Notes or the Class C Notes on
an Interest Payment Date (in each case, after discharging the Current Issuer's
liabilities of a higher priority) are insufficient to pay the full amount of
such interest, payment of the shortfall attributable to the Class B Notes, the
Class M Notes or the Class C Notes, as the case may be (in each case,
"Deferred Interest"), which will be borne by each Class B Note, Class M Note
or Class C Note, as the case may be, in proportion to the amount of interest
due, subject to this Condition 4(B), on a Class B
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Note, Class M Note or Class C Note, as the case may be, on such Interest
Payment Date, will not then fall due but will instead be deferred until the
first Interest Payment Date thereafter on which sufficient funds are available
(after allowing for the Current Issuer's liabilities of a higher priority and
subject to and in accordance with the relevant Current Issuer Priority of
Payments) to fund the payment of such Deferred Interest to the extent of such
available funds.
Such Deferred Interest will accrue interest ("Additional Interest") at
the rate of interest applicable from time to time to the Class B Notes, the
Class M Notes or the Class C Notes, as the case may be, and payment of any
Additional Interest will also be deferred until the first Interest Payment
Date thereafter on which funds are available (after allowing for the Current
Issuer's liabilities of a higher priority subject to and in accordance with
the relevant Current Issuer Priority of Payments) to the Current Issuer to pay
such Additional Interest to the extent of such available funds.
Amounts of Deferred Interest and Additional Interest shall not be
deferred beyond the Final Maturity Date of the Class B Notes, the Class M
Notes or the Class C Notes, as the case may be, when such amounts will become
due and payable.
It is possible that all or any part of any interest due on the Class B
Notes, the Class M Notes or the Class C Notes, as the case may be, may never
be paid if there are insufficient funds available (subject to and in
accordance with the relevant Current Issuer Priority of Payments) to fund the
payment of such interest after paying amounts of a higher priority.
Payments of interest due on an Interest Payment Date in respect of the
Class A Notes will not be deferred. In the event of the delivery of a Class A
Note Enforcement Notice (as described in Condition 9), the amount of interest
that was due but not paid on such Interest Payment Date will itself bear
interest at the applicable rate until both the unpaid interest and the
interest on that interest are paid.
(C) Rates of Interest
In relation to each Class of Notes the rate of interest payable in
respect of such Interest Class (each a "Rate of Interest" and together the
"Rates of Interest") and the relevant Interest Amount in respect of such Class
shall be determined on the basis of the provisions set out below:
(a) On each Interest Determination Date in relation to such Class,
the Agent Bank will determine the Relevant Screen Rate in
respect of such Class as at or about the Quotation Time for
such Class.
If the Relevant Screen Rate is unavailable, the Agent Bank will
request the principal London office of each of the Reference
Banks to provide the Agent Bank with its offered quotation to
leading banks for the relevant Quotation Deposits for the
relevant Quotation Period in the relevant Quotation Market as
at or about the relevant Quotation Time on such Interest
Determination Date.
The Rate of Interest for such Class for the Interest Period
relating to such Class shall be the aggregate of (a) the
Relevant Margin in respect of such Class and (b) the Relevant
Screen Rate in respect of such Class
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or, if the Relevant Screen Rate is unavailable, the arithmetic
mean (or, in the case of the initial Interest Determination
Date relating to such Class, the linear interpolation of the
arithmetic mean) of such offered quotations by the Reference
Banks (rounded upwards, if necessary, to five decimal places).
(b) If on any Interest Determination Date in relation to such
Class, the Relevant Screen Rate in respect of such Class is
unavailable and only two or three of the Reference Banks
provide offered quotations, the Rates of Interest for such
Class for the relevant Interest Period shall be determined in
accordance with the provisions of sub-paragraph (a) above on
the basis of the offered quotations of those Reference Banks
providing such quotations.
If, on any such Interest Determination Date, only one or none
of the Reference Banks provides the Agent Bank with such an
offered quotation, the Agent Bank shall forthwith consult with
the Note Trustee for the purposes of agreeing two banks (or,
where one only of the Reference Banks provided such a
quotation, one additional bank) to provide such a quotation or
quotations to the Agent Bank (which bank or banks are in the
opinion of the Note Trustee suitable for such purpose) and the
Rates of Interest for the Interest Period in question shall be
determined, as aforesaid, on the basis of the offered
quotations of such banks as so agreed (or, as the case may be,
the offered quotations of such bank as so agreed and the
relevant Reference Bank).
If no such bank or banks is or are so agreed or such bank or
banks as so agreed does or do not provide such a quotation or
quotations, then the Rates of Interest for the relevant
Interest Period shall be the Rates of Interest in relation to
such Class in effect for the immediately preceding Interest
Period to which sub-paragraph (a) above shall have applied but
taking account of any change in the Relevant Margin in relation
to such Class.
There will be no minimum or maximum Rate of Interest.
(D) Determination of Rates of Interest and Calculation of Interest Amounts
(i) The Agent Bank shall, as soon as practicable after the Quotation
Time on each Interest Determination Date, determine and notify the
Current Issuer, the Current Issuer Cash Manager, the Note Trustee
and the Paying Agents of (i) the Rates of Interest applicable to
each Class of Notes for the relevant Interest Period and (ii) the
Note Interest Amount payable in respect of each Note for the
relevant Interest Period.
(ii) If a Trigger Event occurs or the Current Issuer Security is enforced
prior to the Interest Payment Date in December 2004, the Agent Bank
shall, as soon as practicable thereafter, determine and notify the
Current Issuer, the Current Issuer Cash Manager, the Note Trustee
and the Paying Agents of (i) the Rates of Interest applicable to the
Series 1 Class A1 Notes for the Interest Period commencing on the
Interest Payment Date immediately preceding such
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Trigger Event or enforcement of the Current Issuer Security and
ending on (but excluding) the next following Interest Payment Date,
in each case, in respect of the Series 1 Class A1 Notes and (ii) the
Note Interest Amount payable in respect of each Series 1 Class A1
Note for such Interest Period.
(iii) The amount of interest in respect of each class of Notes in respect
of an Interest Period (in each case, the "Interest Amount") shall be
determined by applying the relevant Rate of Interest to the
aggregate Principal Amount Outstanding of the relevant class of
Notes of the relevant class, multiplying the sum by the applicable
day count fraction described in Condition 4(A) and rounding the
resultant figure to the nearest cent, amounts equal to or above half
a cent being rounded upwards and amounts below half a cent being
rounded downwards (in the case of Dollar Notes and the Euro Notes)
and the nearest ▇▇▇▇▇, amounts equal to or above half a ▇▇▇▇▇ being
rounded upwards and amounts below half a ▇▇▇▇▇ being rounded
downwards (in the case of the Sterling Notes).
The amount of interest in respect of each Note in respect of an Interest
Period (in each case, the "Note Interest Amount") shall be the proportion of
the relevant Interest Amount in relation to the relevant class of Notes on
such date equal to the proportion that the Principal Amount Outstanding of the
relevant Note bears to the aggregate Principal Amount Outstanding of the
relevant class of Notes rounded down to the nearest cent in respect of the
Dollar Notes and the Euro Notes, and rounded down to the nearest ▇▇▇▇▇ in
respect of the Sterling Notes.
(E) Publication of Rates of Interest, Interest Amounts and other Notices
As soon as possible, the Agent Bank will cause the Rate of Interest and
the Interest Amount applicable to each class of Notes for each Interest Period
and the Interest Payment Date falling at the end of such Interest Period to be
notified to the Current Issuer, the Current Issuer Cash Manager, the Note
Trustee, the Paying Agents, the Registrar and to each stock exchange,
competent listing authority and/or quotation system (if any) on or by which
the Notes are then listed, quoted and/or traded and will cause notice thereof
to be given to the relevant class of Noteholders in accordance with Condition
14. The Interest Amounts and Interest Payment Dates so notified may
subsequently be amended (or appropriate alternative arrangements made by way
of adjustment) without notice in the event of any extension or shortening of
the relevant Interest Period.
(F) Determination and/or Calculation by Note Trustee
If the Agent Bank does not at any time for any reason determine the Rate
of Interest and/or calculate the Interest Amount for any class of Notes in
accordance with the foregoing paragraphs, the Note Trustee shall (i) determine
the Rate of Interest at such rate as (having such regard as it shall think fit
to the procedure described above) it shall in its sole discretion deem fair
and reasonable in all the circumstances and/or (as the case may be) and (ii)
calculate the Interest Amount for such class of Notes in the manner specified
in paragraph (D) above, and any such determination and/or calculation shall be
deemed to have been made by the Agent Bank.
(G) Notifications to be Final
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Subject to Condition 4(D)(ii) above, all notifications, opinions,
determinations, certificates, calculations, quotations and decisions given,
expressed, made or obtained for the purposes of this Condition 4, whether by
the Reference Banks (or any of them), any other bank or the Agent Bank (in the
absence of wilful default, bad faith or manifest error) shall be binding on
the Current Issuer, the Current Issuer Cash Manager, the Reference Banks, such
other bank, the Agent Bank, the Note Trustee and all Noteholders and (in such
absence as aforesaid) no liability to the Noteholders shall attach to the
Current Issuer, the Reference Banks, such other bank, the Agent Bank, the Note
Trustee or the Current Issuer Cash Manager in connection with the exercise or
non-exercise by them or any of them of their powers, duties and discretions
hereunder.
(H) Reference Banks and Agent Bank
The Agent Bank shall ensure that, so long as any of the Notes remains
outstanding, there shall at all times be four Reference Banks with offices in
London and an Agent Bank. In the event of any Reference Bank being unable or
unwilling to continue to act as a Reference Bank, the Current Issuer shall,
with the approval of the Note Trustee, appoint a successor Reference Bank to
act as such in its place. In the event of the then Agent Bank being unwilling
to act as the Agent Bank, or resigning pursuant to the Current Issuer Paying
Agent and Agent Bank Agreement, the Current Issuer shall, with the approval of
the Note Trustee, appoint a successor Agent Bank. If the Current Issuer shall
fail to appoint a successor Reference Bank or successor Agent Bank (as the
case may be), the Agent Bank shall appoint such other bank as may be
previously approved in writing by the Note Trustee to act as the Reference
Bank or Agent Bank (as the case may be). The resignation of the Agent Bank
will not take effect until a successor approved by the Note Trustee has been
appointed.
5. Redemption, Purchase and Cancellation
(A) Final Redemption
Unless previously redeemed in full as provided in this Condition 5, the
Current Issuer shall redeem each class of Notes at their then Principal Amount
Outstanding together with all accrued interest on the Final Maturity Date in
respect of such class of Notes.
The Current Issuer may not redeem the Notes in whole or in part prior to
those respective dates except as provided in paragraph (B), (D), (E) or (F)
below, but without prejudice to Condition 9.
(B) Mandatory Redemption of the Notes in Part
On each Payment Date, other than a Payment Date on which the Notes are to
be redeemed under Conditions 5(A), (D), (E) or (F), the Current Issuer shall
repay principal in respect of the Notes in accordance with and subject to the
relevant Current Issuer Priority of Payments applicable to the Current Issuer
on such Payment Date and then only to the extent of Current Issuer Available
Principal Receipts on such Payment Date in the manner described in and subject
to the Current Issuer Cash Management Agreement and/or, as applicable, the
Current Issuer Deed of Charge.
(C) Note Principal Payments, Principal Amount Outstanding and Pool Factor
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The principal amount redeemable (the "Note Principal Payment") in respect
of each Note of a particular class of Notes on any Payment Date under
paragraph (B) above shall be a proportion of the amount required as at that
Payment Date to be applied in redemption of the relevant class of Notes on
such date equal to the proportion that the Principal Amount Outstanding of the
relevant Note bears to the aggregate Principal Amount Outstanding of the
relevant class of Notes rounded down to the nearest cent in respect of the
Dollar Notes and the Euro Notes, and rounded down to the nearest ▇▇▇▇▇ in
respect of the Sterling Notes; provided always that no such Note Principal
Payment may exceed the Principal Amount Outstanding of the relevant Note.
On each Note Determination Date the Current Issuer shall determine (or
cause the Current Issuer Cash Manager to determine) (i) the amount of any Note
Principal Payment payable in respect of each Note of the relevant series and
class on the immediately following Payment Date, (ii) the Principal Amount
Outstanding of each such Note which shall be $1,000 or, as the case may be,
$10,000 (in the case of each Dollar Note), (euro)500,000 (in the case of each
Euro Note) and (pound)1,000 or, as the case may be, (pound)10,000 (in the case
of each Sterling Note) less (in each case) the aggregate amount of all Note
Principal Payments in respect of such Notes that have been paid since the
Closing Date and on or prior to that Note Determination Date (the "Principal
Amount Outstanding") and (iii) the fraction expressed as a decimal to the
fifth decimal point (the "Pool Factor"), of which the numerator is the
Principal Amount Outstanding of that Note (as referred to in (ii) above) and
the denominator is $1,000 or, as the case may be, $10,000 (in the case of each
Dollar Note), (euro)500,000 (in the case of each Euro Note) and (pound)1,000
or, as the case may be, (pound)10,000 (in the case of each Sterling Note).
Each determination by or on behalf of the Current Issuer of any Note Principal
Payment of a Note, the Principal Amount Outstanding of a Note and the Pool
Factor shall in each case (in the absence of wilful default, bad faith or
manifest error) be final and binding on all persons.
With respect to the Notes of each class, the Current Issuer will cause
each determination of the Note Principal Payment, the Principal Amount
Outstanding and the Pool Factor to be notified forthwith, and in any event not
later than 1.00 p.m. (London time) on the Business Day immediately succeeding
the Note Determination Date, to the Note Trustee, the Paying Agents, the
Registrar, the Agent Bank and (for so long as the Notes are listed on one or
more stock exchanges) the relevant stock exchanges, and will cause notice of
each determination of the Note Principal Payment, the Principal Amount
Outstanding and the Pool Factor to be given to Noteholders in accordance with
Condition 14 by no later than the Business Day after the relevant Payment
Date.
If the Current Issuer does not at any time for any reason determine (or
cause the Current Issuer Cash Manager to determine) a Note Principal Payment,
the Principal Amount Outstanding or the Pool Factor in accordance with the
preceding provisions of this paragraph, such Note Principal Payment, Principal
Amount Outstanding and/or Pool Factor may be determined by the Note Trustee in
accordance with this paragraph (C) in the manner the Note Trustee in its
discretion considers fair and reasonable in the circumstances, having regard
to this paragraph (C), and each such determination or calculation shall be
deemed to have been made by the Current Issuer. Any such determination shall
(in the absence of wilful default, bad faith or manifest error) be binding on
the Current Issuer, the Current Issuer Cash Manager and the Noteholders.
(D) Optional Redemption in Full
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Subject to the provisos below, upon giving not more than 60 nor less than
30 days' prior notice to the Note Trustee and the Noteholders in accordance
with Condition 14, the Current Issuer may redeem the Notes at their aggregate
Principal Amount Outstanding together with any accrued and unpaid interest in
respect thereof on the following dates:
(i) with respect to all of the Notes (other than the Series 1 Class A1
Notes), on the Payment Date falling in March 2009 and on any Payment
Date thereafter. This gives the Current Issuer the option to redeem
the Notes (other than the Series 1 Class A1 Notes) on or after the
March 2009 step-up date for interest; or
(ii) with respect to all of the Notes, on any Payment Date on which the
aggregate Principal Amount Outstanding of the Notes is less than 10
per cent. of the aggregate Principal Amount Outstanding of the Notes
as at the Closing Date,
PROVIDED THAT (a) (in either of the cases above), prior to giving any
such notice, the Current Issuer shall have provided to the Note Trustee prior
to the date of such redemption a certificate signed by two directors of the
Current Issuer to the effect that it will have the funds, not subject to any
interest of any other person, required to redeem the Notes as aforesaid and
any amounts required to be paid in priority to or pari passu with the Notes
outstanding in accordance with the terms and conditions of the Current Issuer
Cash Management Agreement and (b) the Note Trustee is satisfied in accordance
with the Transaction Documents that there are sufficient funds to allow the
Current Issuer to redeem the Notes.
(E) Optional Redemption for Tax and other Reasons
If the Current Issuer at any time satisfies the Note Trustee immediately
prior to the giving of the notice referred to below that on the next Payment
Date or Interest Payment Date either (i) the Current Issuer would be required
to deduct or withhold from any payment of principal or interest or any other
amount under any of the Notes any amount for or on account of any present or
future taxes, duties, assessments or governmental charges of whatever nature
or (ii) Funding would be required to deduct or withhold from amounts due under
the Current Issuer Intercompany Loan any amount on account of any present or
future taxes, duties, assessments or governmental charges of whatever nature
and (iii) such obligation of the Current Issuer or Funding (as the case may
be) cannot be avoided by the Current Issuer or Funding (as the case may be)
taking reasonable measures available to it, then the Current Issuer shall use
its reasonable endeavours to arrange the substitution of a company
incorporated in another jurisdiction approved by the Note Trustee as principal
debtor under the Class A Notes, the Class B Notes, the Class M Notes and the
Class C Notes and/or as lender under the Current Issuer Intercompany Loan
Agreement, as the case may be, upon the Note Trustee being satisfied that (1)
such substitution will not be materially prejudicial to the Noteholders, (2)
that the position of the Current Issuer Secured Creditors will not thereby be
adversely affected, and (3) that such substitution would not require
registration of any new security under United States securities laws or would
materially increase the disclosure requirements under United States law or the
costs of issuance. Only if the Current Issuer is unable to arrange a
substitution will the Current Issuer be entitled to redeem the Notes as
described in this Condition 5(E).
Subject to the proviso below, if the Current Issuer is unable to arrange
a substitution as described above and, as a result, one or more of the events
described in (i) or (ii) above (as the case may be) is continuing, then the
Current Issuer may, having given not more than 60
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nor less than 30 days' notice to the Note Trustee and the Noteholders in
accordance with Condition 14, redeem all (but not some only) of the Notes on
the immediately succeeding Payment Date at their aggregate Principal Amount
Outstanding together with any accrued and unpaid interest in respect thereof
provided that (in either case), prior to giving any such notice, the Current
Issuer shall have provided to the Note Trustee (A) a certificate signed by two
directors of the Current Issuer stating the circumstances referred to in (i)
or (ii) and (iii) above prevail and setting out details of such circumstances
and (B) an opinion in form and substance satisfactory to the Note Trustee of
independent legal advisors of recognised standing to the effect that the
Current Issuer has or will become obliged to pay such additional amounts as a
result of such change or amendment. The Note Trustee shall be entitled to
accept such certificate and opinion as sufficient evidence of the satisfaction
of the circumstance set out in (i) or (ii) and (iii) above, in which event
they shall be conclusive and binding on the Noteholders. The Current Issuer
may only redeem the Notes as aforesaid if the Note Trustee is satisfied in
accordance with the Transaction Documents that the Current Issuer will have
the funds, not subject to the interest of any other person, required to redeem
the Notes as aforesaid and any amounts required under the Current Issuer
Pre-Enforcement Revenue Priority of Payments currently set out in the Current
Issuer Cash Management Agreement to be paid in priority to or pari passu with
the Notes outstanding in accordance with the terms and conditions thereof.
In addition to the foregoing, if at any time it becomes unlawful for the
Current Issuer to make, fund or allow to remain outstanding the Current Issuer
Intercompany Loan, then the Current Issuer may require Funding upon giving not
more than 60 nor less than 30 days' (or such shorter period as may be required
under any relevant law) prior written notice to the Current Issuer and the
Note Trustee, to prepay the Current Issuer Intercompany Loan on any Payment
Date subject to and in accordance with the provisions of the Current Issuer
Intercompany Loan Agreement to the extent necessary to cure such illegality.
Such monies received by the Current Issuer shall be used to redeem the Current
Issuer Notes in full on that Payment Date.
(F) Optional Redemption for Implementation of New Basel Capital Accord
If the New Basel Capital Accord, as described in the third consultative
document, the "New Basel Capital Accord" published in April 2003 by the Basel
Committee on Banking Supervision, has been implemented in the United Kingdom,
whether by rule of law, recommendation or best practice or by any other
regulation, then on the Payment Date falling in June 2008 and on any Payment
Date thereafter, the Current Issuer may, by giving not more than 60 nor less
than 30 days' (or such shorter period as may be required under any relevant
law) prior notice to the Note Trustee and the Noteholders in accordance with
Condition 14, redeem all (but not some only) of the Notes at their aggregate
Principal Amount Outstanding together with any accrued and unpaid interest in
respect thereof on the next following Payment Date, provided that a Note
Enforcement Notice has not been served. The Current Issuer may only redeem the
Notes as aforesaid if the Note Trustee is satisfied in accordance with the
Transaction Documents that the Current Issuer will have the funds, not subject
to the interest of any other person, required to redeem the Notes as aforesaid
and any amounts required under the Current Issuer Pre-Enforcement Revenue
Priority of Payments currently set out in the Current Issuer Cash Management
Agreement to be paid in priority to or pari passu with the Notes outstanding
in accordance with the terms and conditions thereof.
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6. Payments
(A) Payment of Interest and Principal
Payments of principal shall be made by US Dollar cheque, in the case of
the Dollar Notes, Euro cheque, in the case of the Euro Notes or Sterling
cheque, in the case of the Sterling Notes, drawn on, or upon application by a
Holder of the relevant Note to the Specified Office of the Principal Paying
Agent not later than the fifteenth day before the due date for any such
payment, or by transfer to a US Dollar account maintained by the payee with a
bank in New York City or (as the case may be) to a Sterling account maintained
by the payee with a bank in London or (as the case may be) to a Euro account
maintained by the payee with a bank as specified by the payee, and (in the
case of final redemption) upon surrender (or, in the case of part payment
only, endorsement) of the relevant Note Certificates at the Specified Office
of any Paying Agent.
Payments of interest shall be made by US Dollar cheque, in the case of
the Dollar Notes, Euro cheque, in the case of the Euro Notes or Sterling
cheque, in the case of the Sterling Notes, drawn on, or upon application by a
Holder of the relevant Note to the Specified Office of the Principal Paying
Agent not later than the fifteenth day before the due date for any such
payment, or by transfer to a US Dollar account maintained by the payee with a
bank in New York City or (as the case may be) to a Sterling account maintained
by the payee with a bank in London or (as the case may be) to a Euro account
maintained by the payee with a bank as directed by the payee, and (in the case
of interest payable on redemption) upon surrender (or, in the case of part
payment only, endorsement) of the relevant Note Certificates at the Specified
Office of any Paying Agent.
(B) Laws and Regulations
Payments of principal and interest in respect of the Notes are subject in
all cases to any fiscal or other laws and regulations applicable thereto.
Noteholders will not be charged commissions or expenses on payments.
(C) Payment of Interest following a failure to pay Principal
If payment of principal is improperly withheld or refused on or in
respect of any Note or part thereof, the interest which continues to accrue in
respect of such Note in accordance with Condition 4(A) will be paid in
accordance with this Condition 6.
(D) Change of Agents
The initial Principal Paying Agent, the Registrar, the Transfer Agent and
the initial Paying Agents and their respective initial Specified Offices are
listed at the end of these Conditions. The Current Issuer reserves the right,
subject to the prior written approval of the Note Trustee, at any time to vary
or terminate the appointment of the Principal Paying Agent, the Registrar, the
Transfer Agent and the US Paying Agent and to appoint additional or other
Paying Agents. The Current Issuer will at all times maintain a Paying Agent
with a Specified Office in London and a US Paying Agent with a Specified
Office in New York and a Registrar. Except where otherwise provided in the
Current Issuer Trust Deed, the Current Issuer will cause at least 30 days'
notice of any change in or addition to the Paying Agents, the Transfer Agent
or the Registrar or their Specified Offices to be given in accordance with
Condition 14 and will notify the Rating Agencies of such change or addition.
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(E) No payment on non-Business Day
Where payment is to be made by transfer to a US Dollar account, Sterling
account or Euro account, payment instructions (for value the due date or, if
the due date is not a Payment Business Day, for value the next succeeding
Business Day) will be initiated and, where payment is to be made by US Dollar
cheque, Sterling cheque or Euro cheque, the cheque will be mailed (i) (in the
case of payments of principal and interest payable on redemption) on the later
of the due date for payment and the day on which the relevant Note is
surrendered (or, in the case of part payment only, endorsed) at the Specified
Office of a Paying Agent and (ii) (in the case of payments of interest payable
other than on redemption) on the due date for payment. A Holder of a Note
shall not be entitled to any interest or other payment in respect of any delay
in payment resulting from (A) the due date for a payment not being a Payment
Business Day or (B) a cheque mailed in accordance with this Condition 6(E)
arriving after the due date for payment or being lost in the mail.
(F) Partial Payment
If a Paying Agent makes a partial payment in respect of any Note, the
Current Issuer shall procure and the registrar will ensure that the amount and
date of such payment are noted on the Register and, in the case of partial
payment upon presentation of a Note Certificate, that a statement indicating
the amount and date of such payment is endorsed on the relevant Note
Certificate.
(G) Record Date
Each payment in respect of a Note will be made to the person shown as the
Holder in the Register at the opening of business in the place of the
Registrar's Specified Office on the fifteenth day before the due date for such
payment (the "Record Date"). Where payment in respect of a Note is to be made
by cheque, the cheque will be mailed to the address shown as the address of
the Holder in the Register at the opening of business on the relevant Record
Date.
(H) Payment of Interest
Subject as provided otherwise in these Conditions, if interest is not
paid in respect of a Note of any class on the date when due and payable (other
than because the due date is not a Payment Business Day) or by reason of
non-compliance with Condition 6(A), then such unpaid interest shall itself
bear interest at the Rate of Interest applicable from time to time to such
Note until such interest and interest thereon are available for payment and
notice thereof has been duly given in accordance with Condition 14.
7. Prescription
Claims against the Current Issuer for payment of interest and principal
on redemption shall be prescribed and become void if the relevant Note
Certificates are not surrendered for payment within a period of 10 years from
the relevant date in respect thereof. After the date on which a payment under
a Note becomes void in its entirety, no claim may be made in respect thereof.
In this Condition 7, the "relevant date", in respect of a payment under a
Note, is the date on which the payment in respect thereof first becomes due or
(if the full amount of the monies payable in respect of those payments under
all the Notes due on or before that date has not been duly received by the
Principal Paying Agent, the US Paying
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Agent or the Note Trustee on or prior to such date) the date on which the full
amount of such monies having been so received or notice to that effect is duly
given to Noteholders in accordance with Condition 14.
8. Taxation
All payments in respect of the Notes will be made without withholding or
deduction for, or on account of, any present or future taxes, duties or
charges of whatsoever nature unless the Current Issuer or any relevant Paying
Agent is required by applicable law to make any payment in respect of the
Notes subject to any such withholding or deduction. In that event, the Current
Issuer or such Paying Agent shall make such payment after such withholding or
deduction has been made and shall account to the relevant authorities for the
amount so required to be withheld or deducted. No Paying Agent nor the Current
Issuer will be obliged to make any additional payments to Noteholders in
respect of such withholding or deduction.
The Issuer will treat the US Notes as indebtedness for U.S. federal
income tax purposes. Each Holder of a US Note, by the acceptance thereof,
agrees to treat such US Note as indebtedness for U.S. federal income tax
purposes.
9. Events of Default
(A) Class A Noteholders:
The Note Trustee in its absolute discretion may give notice to the
Current Issuer and the Security Trustee of a Current Issuer Note Event of
Default (as defined below) in respect of the Class A Notes (a "Class A Note
Enforcement Notice"), and shall give such notice if it is indemnified to its
satisfaction and (1) if so requested in writing by the Holders of not less
than 25 per cent. in aggregate Principal Amount Outstanding of the Class A
Notes or (2) if so directed by or pursuant to an Extraordinary Resolution
passed at a meeting of the Class A Noteholders, declaring (in writing) the
Notes to be due and repayable (and they shall forthwith become due and
repayable) at any time after the happening of any of the following events
which is continuing or unwaived:
(i) default being made for a period of seven Business Days in the
payment of any amount of principal of any Class A Note when and as
the same ought to be paid in accordance with these Conditions or
default being made for a period of fifteen Business Days in the
payment of any amount of interest on any Class A Note when and as
the same ought to be paid in accordance with these Conditions; or
(ii) the Current Issuer failing duly to perform or observe any other
obligation binding upon it under the Class A Notes, the Current
Issuer Trust Deed, the Current Issuer Deed of Charge or any other
Transaction Document and, in any such case (except where the Note
Trustee certifies that, in its opinion, such failure is incapable of
remedy, in which case no notice will be required), such failure is
continuing unremedied for a period of 30 days following the service
by the Note Trustee on the Current Issuer of notice requiring the
same to be remedied and the Note Trustee has certified that the
failure to perform or observe is materially prejudicial to the
interests of the Class A Noteholders; or
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(iii) the Current Issuer, otherwise than for the purposes of such
amalgamation or reconstruction as is referred to in sub-paragraph
(iv) below, ceases or threatens to cease to carry on its business or
a substantial part of its business or the Current Issuer is deemed
unable to pay its debts within the meaning of section 123(1)(a),
(b), (c) or (d) of the Insolvency ▇▇▇ ▇▇▇▇ (as that section may be
amended, modified or re-enacted) or becomes unable to pay its debts
within the meaning of section 123(2) of the Insolvency Act 1986 (as
that section may be amended, modified or re-enacted); or
(iv) an order being made or an effective resolution being passed for the
winding-up of the Current Issuer except a winding-up for the
purposes of or pursuant to an amalgamation, restructuring or merger
the terms of which have previously been approved by the Note Trustee
in writing or by an Extraordinary Resolution of the Class A
Noteholders; or
(v) proceedings being otherwise initiated against the Current Issuer
under any applicable liquidation, insolvency, composition,
reorganisation or other similar laws (including, but not limited to,
presentation of a petition for administration or the filing of
documents with the court for an administration) and (except in the
case of presentation of a petition for an administration order) such
proceedings are not, in the opinion of the Note Trustee, being
disputed in good faith with a reasonable prospect of success, a
formal notice is given of intention to appoint an administrator in
relation to the Current Issuer or an administration order being
granted or an administrative receiver or other receiver, liquidator
or other similar official being appointed in relation to the Current
Issuer or in relation to the whole or any substantial part of the
undertaking or assets of the Current Issuer, or an encumbrancer
taking possession of the whole or any substantial part of the
undertaking or assets of the Current Issuer, or a distress,
execution, diligence or other process being levied or enforced upon
or sued out against the whole or any substantial part of the
undertaking or assets of the Current Issuer and such possession or
process (as the case may be) not being discharged or not otherwise
ceasing to apply within 30 days, or the Current Issuer initiating or
consenting to judicial proceedings relating to itself under
applicable liquidation, insolvency, composition, reorganisation or
other similar laws or making a conveyance or assignment for the
benefit of its creditors generally or a composition or similar
arrangement with the creditors or takes steps with a view to
obtaining a moratorium in respect of its indebtedness, including
without limitation, the filing of documents with the court; or
(vi) if an Intercompany Loan Enforcement Notice is served under any
Intercompany Loan Agreement while any of the Class A Notes is
outstanding.
(B) Class B Noteholders
This Condition 9(B) shall have no effect if, and for as long as, any
Class A Notes are outstanding. Subject thereto, for so long as any Class B
Notes are outstanding, the Note Trustee in its absolute discretion may give
notice to the Current Issuer and the Security Trustee of a Current Issuer Note
Event of Default (as defined below) in respect of the Class B Notes (a "Class
B Note Enforcement Notice"), and shall give such notice if it is indemnified
to its satisfaction and (1) if so requested in writing by the Holders of not
less than 25 per cent.
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in aggregate Principal Amount Outstanding of the Class B Notes or (2) if so
directed by or pursuant to an Extraordinary Resolution passed at a meeting of
the Class B Noteholders, declaring (in writing) the Notes to be due and
repayable (and they shall forthwith become due and repayable) at any time
after the happening of any of the following events:
(i) default being made for a period of seven Business Days in the
payment of any amount of principal of any Class B Note when and as
the same ought to be paid in accordance with these Conditions or
default being made for a period of fifteen Business Days in the
payment of any amount of interest on any Class B Note when and as
the same ought to be paid in accordance with these Conditions; or
(ii) the occurrence of any of the events in Condition 9(A)(ii), (iii),
(iv), (v) or (vi) above provided that the references in Condition
9(A)(ii) and Condition 9(A)(iv) to Class A Notes and Class A
Noteholders shall be read as references to Class B Notes and Class B
Noteholders, respectively.
(C) Class M Noteholders
This Condition 9(C) shall have no effect if, and for as long as, any
Class A Notes or any Class B Notes are outstanding. Subject thereto, for so
long as any Class M Notes are outstanding, the Note Trustee in its absolute
discretion may give notice to the Current Issuer and the Security Trustee of a
Current Issuer Note Event of Default (as defined below) in respect of the
Class M Notes (a "Class M Note Enforcement Notice"), and shall give such
notice if it is indemnified to its satisfaction and (1) if so requested in
writing by the Holders of not less than 25 per cent. in aggregate Principal
Amount Outstanding of the Class M Notes or (2) if so directed by or pursuant
to an Extraordinary Resolution passed at a meeting of the Class M Noteholders,
declaring (in writing) the Notes to be due and repayable (and they shall
forthwith become due and repayable) at any time after the happening of any of
the following events:
(i) default being made for a period of seven Business Days in the
payment of any amount of principal of any Class M Note when and
as the same ought to be paid in accordance with these
Conditions or default being made for a period of fifteen
Business Days in the payment of any amount of interest on any
Class M Note when and as the same ought to be paid in
accordance with these Conditions; or
(ii) the occurrence of any of the events in Condition 9(A)(ii),
(iii), (iv), (v) or (vi) above provided that the references in
Condition 9(A)(ii) and Condition 9(A)(iv) to Class A Notes and
Class A Noteholders shall be read as references to Class M
Notes and Class M Noteholders, respectively.
(D) Class C Noteholders
This Condition 9(D) shall have no effect if, and for as long as, any
Class A Notes, any Class B Notes or any Class M Notes are outstanding. Subject
thereto, for so long as any Class C Notes are outstanding, the Note Trustee in
its absolute discretion may give notice to the Current Issuer and the Security
Trustee of a Current Issuer Note Event of Default (as defined below) in
respect of the Class C Notes (a "Class C Note Enforcement Notice"), and shall
give such notice if it is indemnified to its satisfaction and (1) if so
requested in writing by the
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Holders of not less than 25 per cent. in aggregate Principal Amount
Outstanding of the Class C Notes or (2) if so directed by or pursuant to an
Extraordinary Resolution passed at a meeting of the Class C Noteholders,
declaring (in writing) the Notes to be due and repayable (and they shall
forthwith become due and repayable) at any time after the happening of any of
the following events:
(i) default being made for a period of seven Business Days in the
payment of any amount of principal of any Class C Note when and as
the same ought to be paid in accordance with these Conditions or
default being made for a period of fifteen Business Days in the
payment of any amount of interest on any Class C Note when and as
the same ought to be paid in accordance with these Conditions; or
(ii) the occurrence of any of the events in Condition 9(A)(ii), (iii),
(iv), (v) or (vi) above provided that the references in Condition
9(A)(ii) and Condition 9(A)(iv) to Class A Notes and Class A
Noteholders shall be read as references to Class C Notes and Class C
Noteholders respectively.
(E) Following Service of a Note Enforcement Notice
For the avoidance of doubt, upon any Note Enforcement Notice being given
by the Note Trustee in accordance with Condition 9(A), (B), (C) or (D) above,
all classes of the Notes then outstanding shall immediately become due and
repayable, without further action or formality at their Principal Amount
Outstanding together with any accrued and unpaid interest in respect thereof
as provided in the Current Issuer Trust Deed.
10. Enforcement of Notes
The Note Trustee may, at its discretion and without notice at any time
and from time to time, take such steps and institute such proceedings against
the Current Issuer or any other person as it may think fit to enforce the
provisions of the Notes, the Current Issuer Trust Deed (including these
Conditions), the Current Issuer Deed of Charge or any of the other Transaction
Documents. The Note Trustee may, at its discretion and without notice, at any
time after the Current Issuer Security has become enforceable, take such steps
as it may think fit to enforce the Current Issuer Security. The Note Trustee
shall not be bound to take any such proceedings or steps unless:
(i) (subject in all cases to restrictions contained in the Current
Issuer Trust Deed or, as the case may be, the Current Issuer Deed of
Charge to protect the interests of any higher ranking class of
Noteholders) it shall have been so directed by an Extraordinary
Resolution (as described in Condition 9) of the Class A Noteholders,
the Class B Noteholders, the Class M Noteholders or the Class C
Noteholders or so requested in writing by the Holders of at least 25
per cent. in Principal Amount Outstanding of the Class A Notes,
Class B Notes, Class M Notes or Class C Notes; and
(ii) it shall have been indemnified to its satisfaction.
Amounts available for distribution after enforcement of the Current
Issuer Security shall be distributed in accordance with the terms of the
Current Issuer Deed of Charge.
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No Noteholder may institute any proceedings against the Current Issuer to
enforce its rights under or in respect of the Notes or the Current Issuer
Trust Deed unless (1) the Note Trustee has become bound to institute
proceedings and has failed to do so within 30 days of becoming so bound and
(2) such failure is continuing; provided that, no Class B Noteholder, Class M
Noteholder or Class C Noteholder will be entitled to commence proceedings for
the winding up or administration of the Current Issuer unless there are no
outstanding Notes of a class with higher priority, or if Notes of a class with
higher priority are outstanding, there is consent of Noteholders of not less
than 25 per cent. of the aggregate principal amount of the Notes outstanding
(as defined in the Current Issuer Trust Deed) of the class or classes of Notes
with higher priority. Notwithstanding the foregoing and notwithstanding any
other provision of the Current Issuer Trust Deed, the right of any Noteholder
to receive payment of principal and interest on its Notes on or after the due
date for such principal or interest, or to institute suit for the enforcement
of payment of that principal or interest, may not be impaired or affected
without the consent of that Noteholder.
In the event that (a) the Current Issuer Security is enforced and after
payment of all other claims ranking in priority to the Notes under the Current
Issuer Deed of Charge, the remaining proceeds of such enforcement are
insufficient to pay in full all principal and interest and other amounts
whatsoever due in respect of the Notes and all other claims ranking pari passu
therewith or (b) within 20 days following the Final Maturity Date of the
latest maturing Note, the Note Trustee certifies that there is no further
amount outstanding under the related Current Issuer Intercompany Loan, then
all interests in the Global Note Certificate will be automatically exchanged
for equivalent interests in an equivalent amount of Notes in an equivalent
Principal Amount Outstanding in Individual Note Certificates and such Global
Note Certificate will be cancelled on the date of such exchange. The
Noteholders are required and the Note Trustee is required on their behalf at
the request of the Post Enforcement Call Option Holder, to transfer or (as the
case may be) procure transfer of all (but not some only) of the Notes to the
Post Enforcement Call Option Holder pursuant to the option granted to it by
the Note Trustee (as agent for the Noteholders) pursuant to the Current Issuer
Post Enforcement Call Option Agreement. The Noteholders will not be paid for
that transfer. Immediately upon such transfer, no such former Noteholder shall
have any further interest in the Notes. Each of the Noteholders acknowledges
that the Note Trustee has the authority and the power to bind the Noteholders
in accordance with the terms and conditions set out in the Current Issuer Post
Enforcement Call Option Agreement and each Noteholder, by subscribing for or
purchasing Notes, agrees to be so bound.
11. Meetings of Noteholders, Modifications and Waiver
(A) Meetings of Noteholders
The Current Issuer Trust Deed contains provisions for convening meetings
of each class of Noteholders to consider any matter affecting their interests,
including the sanctioning by Extraordinary Resolution of a modification of any
provision of these Conditions or the provisions of any of the Transaction
Documents.
(1) Class A Notes
The Current Issuer Trust Deed provides that:
(i) a single meeting of the Holders of all series of Class A Notes may
be held whether or not there is a conflict of
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interest between the Holders of such series of the Class A Notes;
(ii) there shall be no provision for a meeting of the Holders of one
series only of the Class A Notes; and
(iii) as the Class A Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Class A Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Current Issuer Dollar Currency Swap Rate or Current Issuer Euro
Currency Swap Rate, respectively.
(2) Class B Notes
The Current Issuer Trust Deed provides that:
(i) a single meeting of the Holders of all series of Class B Notes may
be held whether or not there is a conflict of interest between the
Holders of such series of the Class B Notes;
(ii) there shall be no provision for a meeting of the Holders of one
series only of the Class B Notes; and
(iii) as the Class B Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Class B Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Current Issuer Dollar Currency Swap Rate or Current Issuer Euro
Currency Swap Rate, respectively.
(3) Class M Notes
The Current Issuer Trust Deed provides that:
(i) a single meeting of the Holders of all series of Class M Notes may
be held whether or not there is a conflict of interest between the
Holders of such series of the Class M Notes;
(ii) there shall be no provision for a meeting of the Holders of one
series only of the Class M Notes; and
(iii) as the Class M Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Class M Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Current Issuer Dollar Currency Swap Rate or Current Issuer Euro
Currency Swap Rate, respectively.
(4) The Class C Notes
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The Current Issuer Trust Deed provides that:
(i) a single meeting of the Holders of all series of Class C Notes may
be held whether or not there is a conflict of interest between the
Holders of such series of the Class C Notes;
(ii) there shall be no provision for a meeting of the Holders of one
series only of the Class C Notes; and
(iii) as the Class C Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Class C Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Current Issuer Dollar Currency Swap Rate or Current Issuer Euro
Currency Swap Rate, respectively.
Subject as provided in the following paragraph, the quorum at any meeting
of the Noteholders of any class convened to consider an Extraordinary
Resolution will be two or more persons holding or representing more than half
of the aggregate Principal Amount Outstanding of the Notes of that class or,
at any adjourned meeting, two or more persons being or representing
Noteholders of that class, whatever the aggregate Principal Amount Outstanding
of the Notes so held or represented.
The quorum at any meeting of the Noteholders of any class for passing an
Extraordinary Resolution which includes the sanctioning of a modification
which would have the effect of altering the amount, rate or timing of payments
on the Notes, the currency of payment of the Notes, or altering the priority
of payments or altering the quorum or majority required in relation to this
exception (a "Basic Terms Modification"), shall be two or more persons holding
or representing not less than three quarters or, at any adjourned and
reconvened meeting, not less than one quarter of the aggregate Principal
Amount Outstanding of the Notes of such class.
A resolution signed by or on behalf of all the Noteholders of the
relevant class who for the time being are entitled to receive notice of a
meeting under the Current Issuer Trust Deed shall for all purposes be as valid
and effective as an Extraordinary Resolution passed at a meeting of such class
of Noteholders.
(B) Limitations on Class B Noteholders
Subject as provided below in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution of the
Class B Noteholders shall take effect for any purpose while any Class A Notes
remain outstanding unless it shall have been sanctioned by an Extraordinary
Resolution of the Class A Noteholders or the Note Trustee is of the opinion
that it would not be materially prejudicial to the interests of the Class A
Noteholders.
(C) Limitations on Class M Noteholders
Subject as provided below in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution of the
Class M Noteholders shall
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take effect for any purpose while any Class A Notes or any Class B Notes
remain outstanding unless it shall have been sanctioned by an Extraordinary
Resolution of the Class A Noteholders and an Extraordinary Resolution of the
Class B Noteholders, or the Note Trustee is of the opinion that it would not
be materially prejudicial to the interests of the Class A Noteholders and the
Class B Noteholders.
(D) Limitations on Class C Noteholders
Subject as provided below in relation to an Extraordinary Resolution
concerning a Basic Terms Modification, no Extraordinary Resolution of the
Class C Noteholders shall take effect for any purpose while any Class A Notes,
any Class B Notes or any Class M Notes remain outstanding unless it shall have
been sanctioned by an Extraordinary Resolution of the Class A Noteholders, an
Extraordinary Resolution of the Class B Noteholders and an Extraordinary
Resolution of the Class M Noteholders, or the Note Trustee is of the opinion
that it would not be materially prejudicial to the interests of the Class A
Noteholders, the Class B Noteholders and the Class M Noteholders.
(E) Basic Terms Modifications
(i) An Extraordinary Resolution of the Class A Noteholders concerning a
Basic Terms Modification will not be effective unless it shall have
been sanctioned by an Extraordinary Resolution of the Class B
Noteholders, an Extraordinary Resolution of the Class M Noteholders
and an Extraordinary Resolution of the Class C Noteholders.
(ii) An Extraordinary Resolution of the Class B Noteholders concerning a
Basic Terms Modification will not be effective unless it shall have
been sanctioned by an Extraordinary Resolution of the Class A
Noteholders, an Extraordinary Resolution of the Class M Noteholders
and an Extraordinary Resolution of the Class C Noteholders.
(iii) An Extraordinary Resolution of the Class M Noteholders concerning a
Basic Terms Modification will not be effective unless it is also
sanctioned by an Extraordinary Resolution of the Class A
Noteholders, an Extraordinary Resolution of the Class B Noteholders
and an Extraordinary Resolution of the Class C Noteholders.
(iv) An Extraordinary Resolution of the Class C Noteholders concerning a
Basic Terms Modification will not be effective unless it is also
sanctioned by an Extraordinary Resolution of the Class A
Noteholders, an Extraordinary Resolution of the Class B Noteholders
and an Extraordinary Resolution of the Class M Noteholders.
(F) Modifications and Determinations by Note Trustee
The Note Trustee may agree, without the consent of the relevant class of
Noteholders, (i) to any modification (other than a Basic Terms Modification)
of, or to the waiver or authorisation of any breach or proposed breach of, the
Conditions of a particular class or classes or any of the Transaction
Documents which is not, in the opinion of the Note Trustee, materially
prejudicial to the interests of the relevant class or classes of the
Noteholders or (ii) to any modification of these Conditions or any of the
Transaction Documents which, in the
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opinion of the Note Trustee, is of a formal, minor or technical nature or is
to correct a manifest error.
Any such modification, waiver, authorisation or determination shall be
binding on the Noteholders and, unless the Note Trustee agrees otherwise, any
such modification shall be notified to the Noteholders and the Rating Agencies
in accordance with Condition 14 as soon as practicable thereafter.
The Note Trustee may agree, without the consent of the Holders of the
Sterling Notes on or after the Specified Date (as defined below), to such
modifications to the Sterling Notes and the Current Issuer Trust Deed in
respect of redenomination of such Notes in euro and associated
reconventioning, renominalisation and related matters in respect of such Notes
as may be proposed by the Current Issuer (and confirmed by an independent
financial institution approved by the Note Trustee to be in conformity with
then applicable market conventions) and to provide for redemption at the euro
equivalent of the sterling principal amount of the Sterling Notes. For these
purposes, "Specified Date" means the date on which the United Kingdom
participates in the third stage of European economic and monetary union
pursuant to the Treaty establishing the European Community, as amended by the
Treaty on European Union, or otherwise participates in European economic and
monetary union in a manner with an effect similar to such third stage.
Any such modification shall be binding on the Holders of the Sterling
Notes and, unless the Note Trustee agrees otherwise, any such modification
shall be notified to such Noteholders in accordance with Condition 14 as soon
as practicable thereafter.
(G) Exercise of Note Trustee's
Functions Where the Note Trustee is required, in connection with the
exercise of its powers, trusts, authorities, duties and discretions, to have
regard to the interests of the Noteholders of one 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, the Note Trustee shall not have
regard to, or be in any way liable for, the consequences of such exercise for
individual Noteholders resulting from their being for any purpose domiciled or
resident in, or otherwise connected with, or subject to the jurisdiction of,
any particular territory. In connection with any such exercise, the Note
Trustee shall not be entitled to require, and no Noteholder shall be entitled
to claim, from the Current Issuer or any other person, any indemnification or
payment in respect of any tax consequence of any such exercise upon individual
Noteholders.
12. Indemnification of the Note Trustee
The Current Issuer Trust Deed and the Current Issuer Deed of Charge
contain provisions governing the responsibility (and relief from
responsibility) of the Note Trustee and providing for its indemnification in
certain circumstances, including, among others, provisions relieving it from
taking enforcement proceedings or enforcing the Current Issuer Security unless
indemnified to its satisfaction. The Note Trustee is also entitled to be paid
its costs and expenses in priority to any interest payments to Noteholders.
The Note Trustee and its related companies are entitled to enter into
business transactions with the Current Issuer, the Current Issuer Cash
Manager, Northern Rock plc and/or the related companies of any of them and to
act as note trustee for the Holders of any
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new Notes and/or any other person who is a party to any Transaction Document
or whose obligations are comprised in the Current Issuer Security and/or any
of its subsidiary or associated companies without accounting for any profit
resulting therefrom.
The Note Trustee will not be responsible for any loss, expense or
liability which may be suffered as a result of any assets comprised in the
Current Issuer Security, or any deeds or documents of title thereto, being
uninsured or inadequately insured or being held by clearing organisations or
their operators or by intermediaries such as banks, brokers or other similar
persons on behalf of the Note Trustee.
Furthermore, the Note Trustee will be relieved of liability for making
searches or other inquiries in relation to the assets comprising the Current
Issuer Security. The Note Trustee does not have any responsibility in relation
to the legality and the enforceability of the trust arrangements and the
related Current Issuer Security. The Note Trustee will not be obliged to take
any action which might result in its incurring personal liabilities. The Note
Trustee is not obliged to monitor or investigate the performance of any other
person under the Current Issuer related documents or the documents relating to
the Current Issuer Intercompany Loan and the Mortgages Trust and is entitled
to assume, until it has actual knowledge to the contrary, that all such
persons are properly performing their duties, unless it receives express
notice to the contrary.
The Note Trustee will not be responsible for any deficiency which may
arise because it is liable to tax in respect of the proceeds of any Current
Issuer Security.
Similar provisions in respect of the indemnification of the Security
Trustee are set out in the Transaction Documents.
13. Replacement of Notes
If Individual Note Certificates are lost, stolen, mutilated, defaced or
destroyed, the Noteholder can replace them at the Specified Office of any
Paying Agent. The Noteholder will be required both to pay the expenses of
producing a replacement and to comply with the Current Issuer's, the
Registrar's and the Paying Agent's reasonable requests for evidence and
indemnity. The Noteholder must surrender any defaced or mutilated Note
Certificates before replacements will be issued.
If a Global Note Certificate is lost, stolen, mutilated, defaced or
destroyed, the Current Issuer will deliver a replacement Global Note
Certificate to the registered holder upon satisfactory evidence and surrender
of any defaced or mutilated Global Note Certificate. A replacement will only
be made upon payment of the expenses for a replacement and compliance with the
Current Issuer's, Registrar's and Paying Agents' reasonable requests as to
evidence and indemnity.
14. Notice to Noteholders
(A) Publication of Notice
Notices to Noteholders will be sent to them by first class mail (or its
equivalent) or (if posted to a non-UK address) by airmail at the respective
addresses on the Register. Any such notice shall have been deemed to have been
given on the fourth day after the date of mailing. In addition, any notice
shall be validly given if published on the date of such mailing in The
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Financial Times and, for so long as amounts are outstanding on the Dollar
Notes, in a daily newspaper of general circulation in New York (which is
expected to be The New York Times) or, if such publication is not practicable,
in a leading English language daily newspaper having general circulation in
the United States; provided that if, at any time, the Current Issuer procures
that the information concerned in such notice shall appear on a page of the
Reuters screen, or any other medium for electronic display of data as may be
previously approved in writing by the Note Trustee and notified to Noteholders
(in each case a "Relevant Screen"), publication in the newspapers set out
above or such other newspaper or newspapers shall not be required with respect
to such information, provided however, that in the case that any Notes are
listed on the Official List of the UK Listing Authority and admitted to
trading by the London Stock Exchange, notices of Noteholder Meetings shall
continue to be published as set forth above. Any such notice shall be deemed
to have been given on the date of such publication or, if published more than
once or on different dates, on the first date on which publication shall have
been made in the newspaper or newspapers in which (or on the Relevant Screen
on which) publication is required.
(B) Note Trustee's Discretion to Select Alternative Method
The Note Trustee shall be at liberty to sanction some other method of
giving notice to the Noteholders or any class or category of them if, in its
opinion, such other method is reasonable having regard to market practice then
prevailing and to the requirements of the stock exchanges on which the Notes
are then listed and provided that notice of such other method is given to the
Noteholders in such manner as the Note Trustee shall require.
15. Governing Law and Jurisdiction
The Transaction Documents (other than the Current Issuer Underwriting
Agreement (which is governed by the laws of the State of New York)) and the
Notes are governed by English law, except for those provisions in which
security is taken over property situated in Jersey, to which Jersey law shall
apply and certain provisions relating to property situated in Scotland, to
which Scots law shall apply. The courts of England are to have nonexclusive
jurisdiction to settle any disputes which may arise out of or in connection
with the Notes and the Transaction Documents (other than the Current Issuer
Underwriting Agreement). The Current Issuer and the other parties to the
Transaction Documents (other than the Current Issuer Underwriting Agreement)
irrevocably submit to the non-exclusive jurisdiction of the courts of England.
16. Contracts (Rights of Third Parties) Act 1999
No person shall have any right to enforce any term or condition of the
Notes under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇, but this shall
not affect any right or remedy of a third party which exists or is available
apart from that Act.
17. Definitions
Unless otherwise defined in these Conditions or unless the context
otherwise requires, in these Conditions the following words shall have the
following meanings and any other capitalised terms used in these Conditions
shall have the meanings ascribed to them or incorporated in the Current Issuer
Trust Deed or the Current Issuer Master Definitions Schedule. The provisions
of Clause 2 (Interpretation and Construction) of the Current Issuer Master
Definitions Schedule are incorporated into and shall apply to these
Conditions.
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"Additional Interest" has the meaning indicated in Condition 4(B);
"Agents" means the Paying Agents, the Transfer Agent, the Registrar and
the Agent Bank;
"Agent Bank" means Citibank, N.A. in its capacity as agent bank at its
Specified Office or such other person for the time being acting as agent bank
under the Current Issuer Paying Agent and Agent Bank Agreement;
"Asset Trigger Event" means the event that occurs when there is a
positive balance on the Class A Principal Deficiency Sub-Ledger in respect of
any Issuer;
"Authorised Holding" means, in respect of the US Global Note
Certificates, $1,000 and integral multiples in excess thereof, and in respect
of the Reg S Global Note Certificates, (euro)500,000 and integral multiples in
excess thereof (in respect of the Euro Notes) and (pound)1,000 and integral
multiples in excess thereof (in respect of the Sterling Notes);
"Authorised Investments" means (i) Sterling gilt-edged investments and
(ii) Sterling demand or time deposits, certificates of deposit and short-term
debt obligations (including commercial paper) (which may include deposits in
any account which earns a rate of interest related to LlBOR) provided that in
all cases such investments have a maturity date of 90 days or less and mature
on or before the next following Payment Date and the short-term unsecured,
unguaranteed and unsubordinated debt obligations of the issuing or
guaranteeing entity or entity with which the demand or time deposits are made
(being an authorised institution under the Financial Services and Markets Act
2000) are rated at least "A-1+" by Standard & Poor's, "F1+" by Fitch and "P-1"
by ▇▇▇▇▇'▇ or which are otherwise acceptable to the Rating Agencies (if they
are notified in advance) to maintain the then current ratings of the Notes;
"Basic Terms Modification" has the meaning indicated in Condition 11(A);
"Business Day" means a day which is a New York Business Day, a London
Business Day and a TARGET Business Day;
"Cash Management Agreement" means the cash management agreement dated the
Initial Closing Date, among the Cash Manager, the Mortgages Trustee, Funding
and the Security Trustee, as described further in "Cash management for the
mortgages trustee and Funding" in the Prospectus;
"Cash Manager" means Northern Rock or such other person or persons for
the time being acting, under the cash management agreement, as agent for the
Mortgages Trustee, Funding and (following enforcement of the Funding security)
the Security Trustee for the purposes of, inter alia, managing all cash
transactions and maintaining certain ledgers on behalf of the Mortgages
Trustee, Funding and (following enforcement of the Funding security) the
Security Trustee;
"Class" or "class" means, in relation to the Notes or the Noteholders, a
class of any of the Series 1 Notes, the Series 2 Notes or the Series 3 Notes,
as the context requires;
"Class A Note Enforcement Notice" has the meaning indicated in Condition
9(A);
"Class A Noteholders" means the Holders of the Class A Notes;
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"Class A Notes" means the Series 1 Class A1 Notes, the Series 1 Class A2
Notes, the Series 2 Class A1 Notes, the Series 2 Class A2 Notes and the Series
3 Class A Notes;
"Class B Note Enforcement Notice" has the meaning indicated in Condition
9(B);
"Class B Noteholders" means the Holders of the Class B Notes;
"Class B Notes" means the Series 1 Class B Notes, the Series 2 Class B
Notes and the Series 3 Class B Notes;
"Class C Note Enforcement Notice" has the meaning indicated in Condition
9(D);
"Class C Noteholders" means the Holders of the Class C Notes;
"Class C Notes" means the Series 1 Class C Notes, the Series 2 Class C
Notes and the Series 3 Class C Notes;
"Class M Note Enforcement Notice" has the meaning indicated in Condition
9(C);
"Class M Noteholders" means the Holders of the Class M Notes;
"Class M Notes" means the Series 1 Class M Notes, the Series 2 Class M
Notes and the Series 3 Class M Notes;
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Closing Date" means on or about 28 January 2004;
"Commercial Business Day" has the meaning indicated in Condition 1(D);
"Controlled Amortisation Amount" means on any Payment Date before the
occurrence of a Trigger Event for any Note or class of Notes issued by the
Current Issuer which is a Controlled Amortisation Note or class of such Notes,
the maximum aggregate principal amount which may be repaid by the Current
Issuer to the relevant Noteholder or Noteholders of such class on that Payment
Date in accordance with the Conditions and the Current Issuer Cash Management
Agreement;
"Controlled Amortisation Note" means any Note where, before the
occurrence of a Trigger Event or the enforcement of the Current Issuer
Security, the conditions of such Note impose a limit on the amount of
principal which may be repaid by the Current Issuer to the relevant Noteholder
for that Note on any Payment Date. All of the Notes issued by the Current
Issuer are Controlled Amortisation Notes;
"Current Issuer" means Granite Mortgages 04-1 plc;
"Current Issuer Account Bank" means Citibank, N.A., situated at ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇. Citibank, N.A. or such other person for the
time being acting as account bank to the Current Issuer under the Current
Issuer Bank Account Agreement;
"Current Issuer Available Principal Receipts" means:
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(a) prior to enforcement of the Current Issuer Security, for the Current
Issuer in respect of any Payment Date an amount calculated by the
Current Issuer Cash Manager on the Distribution Date immediately
preceding such Payment Date equal to the sum of:
(i) all principal amounts repaid by Funding to the Current Issuer
under the Current Issuer Intercompany Loan during the period
from (but excluding) the immediately preceding Payment Date to
(and including) that Payment Date; and
(ii) all Current Issuer Available Revenue Receipts which are to be
used on that Payment Date to credit the Current Issuer
Principal Deficiency Ledger for any class of Notes issued by
the Current Issuer;
less
(iii) the aggregate of all principal amounts (if any) repaid by
Funding to the Current Issuer under the Current Issuer
Intercompany Loan on the relevant Payment Date which are to be
applied on the relevant Payment Date to pay items (A) through
(E), (G), (I) and/or (K) of the Current Issuer Pre-Enforcement
Revenue Priority of Payments; and
(b) following enforcement of the Current Issuer Security, for the
Current Issuer in respect of any Payment Date the sum calculated by
or on behalf of the Note Trustee on the Distribution Date
immediately preceding such Payment Date as the amount to be repaid
by Funding to the Current Issuer under the Current Issuer
Intercompany Loan during the relevant Interest Period and/or the sum
otherwise recovered by the Note Trustee (or the receiver appointed
on its behalf) representing the Principal Amount Outstanding of the
Notes;
"Current Issuer Available Revenue Receipts" means for the Current Issuer
in respect of any Payment Date an amount calculated by the Current Issuer Cash
Manager on the Distribution Date immediately preceding such Payment Date equal
to the sum of:
(a) interest, fees and any other amount (excluding principal) paid
by Funding on the relevant Payment Date in respect of the
Current Issuer Intercompany Loan;
(b) amounts received by the Current Issuer under or in accordance
with the Current Issuer Basis Rate Swap Agreement (excluding
Swap Collateral Excluded Amounts) and any early termination
amounts (other than such early termination amounts applied or
to be applied by the Current Issuer in the purchase of one or
more replacement hedge transactions) received by the Current
Issuer under the Current Issuer Swap Agreements;
(c) interest payable on the Current Issuer Bank Accounts and any
income from Authorised Investments made with funds standing to
the credit of the Current Issuer Bank Accounts in each case
which has been or will be received on or before the relevant
Payment Date; and
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(d) (only to the extent required after the Current Issuer Cash
Manager has made the relevant calculations set out in the
Current Issuer Cash Management Agreement) the aggregate of all
principal amounts (if any) repaid by Funding to the Current
Issuer under the Current Issuer Intercompany Loan on the
relevant Payment Date which are to be applied on the relevant
Payment Date to pay items (A) through (E), (G), (I) and/or (K)
of the Current Issuer Pre-Enforcement Revenue Priority of
Payments;
"Current Issuer Bank Accounts" means the Current Issuer Transaction
Accounts and also includes any additional or replacement bank account opened
in the name of the Current Issuer from time to time with the prior written
consent of the Note Trustee and the Rating Agencies;
"Current Issuer Bank Account Agreement" means the bank account agreement
entered into on or about the Closing Date between the Current Issuer, the
Current Issuer Cash Manager, the Current Issuer Account Bank and the Note
Trustee;
"Current Issuer Basis Rate Swap Agreement" means the ISDA master
agreement, schedule thereto and confirmation thereunder entered into on or
about the Closing Date and any credit support annex entered into at any time
between the Current Issuer, the Current Issuer Basis Rate Swap Provider and
the Note Trustee, and includes any additional and/or replacement Current
Issuer Basis Rate Swap Agreement entered into by the Current Issuer from time
to time in connection with the Notes;
"Current Issuer Basis Rate Swap Provider" means Northern Rock plc or such
other basis rate swap provider appointed from time to time in accordance with
the terms of the Transaction Documents;
"Current Issuer Cash Management Agreement" means the cash management
agreement entered into on or about the Closing Date among the Current Issuer
Cash Manager, the Current Issuer and the Note Trustee;
"Current Issuer Corporate Services Agreement" means the corporate
services agreement entered into on or before the Closing Date between, among
others, the Current Issuer Corporate Services Provider, Holdings, the Post
Enforcement Call Option Holder and the Current Issuer, for the provision by
the Current Issuer Corporate Services Provider of certain corporate services;
"Current Issuer Corporate Services Provider" means Law Debenture
Corporate Services Limited or such other person for the time being acting as
corporate services provider to the Current Issuer under the Current Issuer
Corporate Services Agreement;
"Current Issuer Deed of Charge" means the deed of charge entered into on
or about the Closing Date between, among others, the Current Issuer and the
Note Trustee, under which the Current Issuer creates the Current Issuer
Security in favour of the Current Issuer Secured Creditors;
"Current Issuer Dollar Currency Swap Agreements" means the ISDA master
agreements, schedules thereto and confirmations thereunder relating to the
dollar currency swaps entered into on or about the Closing Date and any credit
support annexes or other
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credit support documents entered into at any time among the Current Issuer,
the Current Issuer Dollar Currency Swap Provider and the Note Trustee and/or
any credit support provider and includes any additional and/or replacement
Current Issuer Dollar Currency Swap Agreement entered into by the Current
Issuer from time to time in connection with the Dollar Notes;
"Current Issuer Dollar Currency Swap Provider" means [ ] or, as
applicable, such other dollar currency swap provider appointed from time to
time in relation to the Dollar Notes (or any class of them, as the context
shall require), in accordance with the terms of the Transaction Documents;
"Current Issuer Dollar Currency Swap Rate" means the rate at which
Dollars are converted to Sterling or, as the case may be, Sterling is
converted to Dollars pursuant to, as applicable, to any Current Issuer Dollar
Currency Swap Agreement, or, if there is no relevant Current Issuer Dollar
Currency Swap Agreement in effect at such time, the "spot" rate at which
Dollars are converted to Sterling or, as the case may be, Sterling is
converted to Dollars, on the foreign exchange markets;
"Current Issuer Euro Currency Swap Agreements" means the ISDA master
agreements, schedules thereto and confirmations thereunder relating to the
euro currency swaps entered into on or about the Closing Date and any credit
support annexes or other credit support documents entered into at any time
among the Current Issuer, the Current Issuer Euro Currency Swap Provider and
the Note Trustee and/or any credit support provider and includes any
additional and/or replacement Current Issuer Euro Currency Swap Agreement
entered into by the Current Issuer from time to time in connection with the
Euro Notes;
"Current Issuer Euro Currency Swap Provider" means [ ] or, as applicable,
such other euro currency swap provider appointed from time to time in relation
to the Euro Notes (or any class of them, as the context shall require), in
accordance with the terms of the Transaction Documents;
"Current Issuer Euro Currency Swap Rate" means the rate at which Euro are
converted to Sterling or, as the case may be, Sterling is converted to Euro
pursuant to, as applicable, to any Current Issuer Euro Currency Swap
Agreement, or, if there is no relevant Current Issuer Euro Currency Swap
Agreement in effect at such time, the "spot" rate at which Euro are converted
to Sterling or, as the case may be, Sterling is converted to Euro, on the
foreign exchange markets;
"Current Issuer Intercompany Loan" means the loan made by the Current
Issuer to Funding on the Closing Date under the Current Issuer Intercompany
Loan Agreement;
"Current Issuer Intercompany Loan Agreement" means the intercompany loan
agreement entered into on or about the Closing Date between, among others,
Funding, the Current Issuer and the Security Trustee;
"Current Issuer Master Definitions Schedule" means the master definitions
schedule in connection with the Current Issuer dated on or about the Closing
Date setting out, among other things, definitions which apply to certain
Transaction Documents;
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"Current Issuer Paying Agent and Agent Bank Agreement" means the paying
agent and agent bank agreement entered into on or about the Closing Date
between the Current Issuer, the Principal Paying Agent, the Paying Agents, the
Transfer Agent, the Registrar, the Agent Bank and the Note Trustee;
"Current Issuer Post Enforcement Call Option Agreement" means the post
enforcement call option agreement entered into on or about the Closing Date
between the Current Issuer the Post Enforcement Call Option Holder and the
Note Trustee;
"Current Issuer Post-Enforcement Priority of Payments" means the
provisions and the order of priority of payments in which all Current Issuer
Available Revenue Receipts, Current Issuer Available Principal Receipts and
all other monies, income, receipts and recoveries received by or on behalf of
the Current Issuer or the Note Trustee or any receiver of the Current Issuer
and the proceeds of enforcement of the Current Issuer Security are to be
applied following an enforcement of the Current Issuer Security as set out in
a schedule to the Current Issuer Deed of Charge, as the same may be amended,
varied or superseded from time to time in accordance with the terms of the
Current Issuer Deed of Charge;
"Current Issuer Pre-Enforcement Principal Priority of Payments" means the
provisions and the order of priority of payments in which the Current Issuer
Available Principal Receipts will be applied until enforcement of the Current
Issuer Security as set out in a schedule to the Current Issuer Cash Management
Agreement;
"Current Issuer Pre-Enforcement Revenue Priority of Payments" means the
provisions and the order of priority of payments in which the Current Issuer
Available Revenue Receipts will be applied until enforcement of the Current
Issuer Security and as set out in a schedule to the Current Issuer Cash
Management Agreement;
"Current Issuer Priority of Payments" means the relevant Current Issuer
Pre-Enforcement Revenue Priority of Payments, the Current Issuer
Pre-Enforcement Principal Priority of Payments and the Current Issuer
Post-Enforcement Priority of Payments;
"Current Issuer Reserve Fund" means the reserve fund established in the
name of Funding in respect of the Current Issuer on the Closing Date in an
amount up to (pound)[45,000,000];
"Current Issuer Secured Creditors" means the Note Trustee (and any
receiver appointed under the Current Issuer Deed of Charge), the Swap
Providers, the Current Issuer Corporate Services Provider, the Current Issuer
Account Bank, the Current Issuer Cash Manager, the Paying Agents, the Agent
Bank, the Transfer Agent, the Registrar and the Noteholders;
"Current Issuer Security" means the security created by the Current
Issuer pursuant to the Current Issuer Deed of Charge;
"Current Issuer Subscription Agreement" means the subscription agreement
relating to the sale of the Series 2 Notes (other than the Series 2 Class A1
Notes) and the Series 3 Notes, entered into on or about [ ] January 2004,
between, among others, the Current Issuer, Funding, the Mortgages Trustee,
Barclays Bank PLC, Citigroup Global Markets Limited and ▇.▇. ▇▇▇▇▇▇ Securities
Ltd.;
127
"Current Issuer Swap Agreements" means the Current Issuer Dollar Currency
Swap Agreements, the Current Issuer Euro Currency Swap Agreements and the
Current Issuer Basis Rate Swap Agreement;
"Current Issuer Transaction Accounts" means the day to day bank accounts
of the Current Issuer, held with the Current Issuer Account Bank and
comprising the Current Issuer dollar account, the Current Issuer sterling
account and the Current Issuer euro account as at the Closing Date or that may
be opened, with the prior approval of the Note Trustee, after the Closing
Date;
"Current Issuer Trust Deed" means the trust deed entered into on or about
the Closing Date between the Current Issuer and the Note Trustee, among other
things, constituting the Notes;
"Current Issuer Underwriting Agreement" means the underwriting agreement
relating to the sale of the Series 1 Notes and the Series 2 Class A1 Notes,
entered into on or about [ ] January 2004 between, among others, the Current
Issuer, Funding, the Mortgages Trustee, Barclays Capital, Inc., Citigroup
Global Markets Limited and ▇.▇. ▇▇▇▇▇▇ Securities Inc. The governing law and
jurisdiction of the Current Issuer Underwriting Agreement is the State of New
York;
"Current Seller Share" means the amount of trust property beneficially
owned by the Seller from time to time;
"Deferred Interest" has the meaning indicated in Condition 4(B);
"Distribution Date" means the date on which the mortgages trust terminates and
the London Business Day determined by the Cash Manager falling no later than 6
business days after each Trust Determination Date;
"Dollar Interest Determination Date" means in relation to the Dollar
Notes and any Interest Period for which the applicable Rate of Interest shall
apply, two London Business Days before the first day of such Interest Period;
"Dollar Notes" means the Series 1 Notes and the Series 2 Class A1 Notes;
"Dollars", "US$", "US Dollars" or "(euro)" means the lawful currency for
the time being of the United States of America;
"Euro", "euro" or "(euro)" means the currency of the member states of the
European Union that adopt the single currency in accordance with the Treaty of
Rome of 25 March 1957, establishing the European Community, as amended from
time to time;
"Euro Interest Determination Date" for the Euro Notes and any Interest
Period for which the applicable Rate of Interest shall apply means two TARGET
Business Days before the first day of such Interest Period;
"Euro Notes" means the Series 2 Notes (other than the Series 2 Class A1
Notes);
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System;
128
"Eurozone" means the region comprised of the member states of the
European Union that adopt the single currency in accordance with the Treaty of
Rome of 25 March 1957, establishing the European Community, as amended from
time to time;
"Extraordinary Resolution" means (a) a resolution passed at a meeting of
the Noteholders of a particular class duly convened and held in accordance
with the provisions of the Current Issuer Trust Deed by a majority consisting
of not less than three-fourths of the persons voting thereat upon a show of
hands or if a poll is duly demanded by a majority consisting of not less than
three-fourths of the votes cast on such poll or (b) a resolution in writing
signed by or on behalf of all the Noteholders of a particular class, 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;
"Final Maturity Date" means:
(i) in respect of the Series 1 Class A1 Notes, the Payment Date falling
in December 2004;
(ii) in respect of the Series 1 Class A2 Notes, the Payment Date falling
in March 2025;
(iii) in respect of the Series 1 Class B Notes, the Payment Date falling
in March 2044;
(iv) in respect of the Series 1 Class M Notes, the Payment Date falling
in March 2044;
(v) in respect of the Series 1 Class C Notes, the Payment Date falling
in March 2044;
(vi) in respect of the Series 2 Class A1 Notes, the Payment Date falling
in March 2044;
(vii) in respect of the Series 2 Class A2 Notes, the Payment Date falling
in March 2044;
(viii) in respect of the Series 2 Class B Notes, the Payment Date falling
in March 2044;
(ix) in respect of the Series 2 Class M Notes, the Payment Date falling
in March 2044;
(x) in respect of the Series 2 Class C Notes, the Payment Date falling
in March 2044;
(xi) in respect of the Series 3 Class A Notes, the Payment Date falling
in March 2044;
(xii) in respect of the Series 3 Class B Notes, the Payment Date falling
in March 2044;
(xiii) in respect of the Series 3 Class M Notes, the Payment
129
Date falling in March 2044; and
(xiv) in respect of the Series 3 Class C Notes, the Payment Date falling
in March 2044;
"Funding" means Granite Finance Funding Limited;
"Funding Deed of Charge" means the deed of charge dated the Initial
Closing Date, as amended and restated from time to time, between, among
others, Funding, the Security Trustee, the First Issuer and the Note Trustee
and each deed of accession entered into in connection therewith;
"Funding Security" means the mortgages, charges, assignments, pledges and
other security created by Funding under or pursuant to the Funding Deed of
Charge in favour of the Security Trustee for the benefit of the secured
creditors of Funding as described under the Funding Deed of Charge;
"Global Note Certificates" means the US Global Note Certificates and the
Reg S Global Note Certificates;
"Holder" has the meaning indicated in Condition 1(B);
"Individual Note Certificates" means the note certificates representing
the Notes while in definitive form;
"Initial Relevant Screen Rate" means:
(i) in respect of the Series 1 Class A1 Notes, the arithmetic mean of
the offered quotations to leading banks for one month dollar
deposits in the London interbank market displayed on the
▇▇▇-▇▇▇▇▇/Telerate Monitor at Telerate Page No. 3750;
(ii) in respect of the Dollar Notes (other than the Series 1 Class A1
Notes), the linear interpolation of the arithmetic mean of the
offered quotations to leading banks for one month Dollar deposits
and the arithmetic mean of the offered quotations to leading banks
for two month Dollar deposits (rounded upwards, if necessary, to
five decimal places), displayed on the ▇▇▇-▇▇▇▇▇ Telerate Monitor at
Telerate Page No. 3750;
(iii) in respect of the Euro Notes, the linear interpolation of the
arithmetic mean of the offered quotations to leading banks for one
month Euro deposits and the arithmetic mean of the offered
quotations to leading banks for two month Euro deposits (rounded
upwards, if necessary, to five decimal places), displayed on the
▇▇▇-▇▇▇▇▇ Telerate Monitor at Telerate Page No. 248; or
(iv) in respect of the Sterling Notes, the linear interpolation of the
arithmetic mean of the offered quotations to leading banks for one
month Sterling deposits and the arithmetic mean of the offered
quotations to leading banks for two month Sterling deposits (rounded
upwards, if necessary, to five decimal places), displayed on the
▇▇▇-▇▇▇▇▇ Telerate Monitor at Telerate Page No. 3750;
"Interest Amount" has the meaning indicated in Condition 4(D)(iii);
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"Interest Determination Date" means (a) in respect of each Class of
Dollar Notes, the Dollar Interest Determination Date, (b) in respect of each
Class of Euro Notes, the Euro Interest Determination Date, and (c) in respect
of each Class of Sterling Notes, the Sterling Interest Determination Date;
"Interest Payment Date" means (a) in relation to each of the Notes (other
than the Series 1 Class A1 Notes), the 20th day of March, June, September and
December in each year (or, if such day is not a Business Day, the next
succeeding Business Day), the first Interest Payment Date in relation to the
Notes (other than the Series 1 Class A1 Notes) being the Interest Payment Date
occurring in March 2004 in respect of the Interest Period commencing on the
Closing Date, and (b) in relation to the Series 1 Class A1 Notes, the 20th day
of each consecutive month in each year (or, if such day is not a Business Day,
the next succeeding Business Day), up to and including the earliest of (i) the
Interest Payment Date in December 2004, (ii) the occurrence of a Trigger Event
or (iii) enforcement of the Current Issuer Security, and thereafter the 20th
day of March, June, September and December in each year (or, if such day is
not a Business day the next succeeding Business Day), the first Interest
Payment Date in relation to the Series 1 Class A1 Notes being the Interest
Payment Date occurring in February 2004 in respect of the Interest Period
commencing on the Closing Date.
"Interest Period" means, in relation to each of the Notes and any
Interest Payment Date, the period from (and including) the immediately
preceding Interest Payment Date for such Note (or in respect of the first
Interest Period, the Closing Date) to (but excluding) the next following (or
first) Interest Payment Date for such Note;
"London Business Day" means a day (other than a Saturday or Sunday or
public holiday) on which banks are generally open for business in London;
"London Stock Exchange" means the London Stock Exchange plc;
"Minimum Seller Share" means an amount included in the Seller Share which
is calculated in accordance with the Mortgages Trust Deed and which, as at the
Closing Date, will be approximately (pound)400,000,000;
"Mortgages Trust" means the trust of the trust property held by the
Mortgages Trustee under the Mortgages Trust Deed;
"New York Business Day" means a day (other than a Saturday, Sunday or a
public holiday) on which banks are generally open for business in the City of
New York;
"Non-Asset Trigger Event" means any of the following events: (a) an
Insolvency Event occurs in relation to the Seller, (b) the role of the Seller
as Administrator under the Administration Agreement is terminated and a new
Administrator is not appointed within 60 days, or (c) on the Distribution Date
immediately succeeding a Seller Share Event Distribution Date, the Current
Seller Share is equal to or less than the Minimum Seller Share (determined
using the amounts of the Current Seller Share and Minimum Seller Share that
would exist after making the distributions of mortgages trustee principal
receipts due on that Distribution Date on the basis that the Cash Manager
assumes that those mortgages trustee principal receipts are distributed in the
manner described under "- Mortgages trustee allocation and distribution of
mortgages trustee principal receipts prior to the occurrence of a trigger
event" in the prospectus);
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"Note Certificates" means any Global Note Certificates or Individual Note
Certificates;
"Note Determination Date" means the Distribution Date immediately
preceding each Payment Date;
"Note Enforcement Notice" means any or all of a Class A Note Enforcement
Notice, a Class B Note Enforcement Notice, a Class M Note Enforcement Notice
and a Class C Note Enforcement Notice;
"Note Interest Amount" has the meaning indicated in Condition 4(D)(iii);
"Note Principal Payment" has the meaning indicated in Condition 5(C);
"Note Trustee" means The Bank of New York and its successors or any
further or other note trustee under the Current Issuer Trust Deed, as trustee
for the Noteholders, and/or the Current Issuer Deed of Charge;
"Noteholders" means the Holders for the time being of the Notes;
"Notes" means the Class A Notes, the Class B Notes, the Class M Notes and
the Class C Notes;
"Paying Agents" means the Principal Paying Agent and the US Paying Agent,
together with any further or other paying agents for the time being appointed
under the Current Issuer Paying Agent and Agent Bank Agreement;
"Payment Business Day" means a day which is (i) a New York Business Day,
(ii) a London Business Day and (iii) a TARGET Business Day and, in the case of
surrender (or, in the case of part payment only, endorsement) of a Note
Certificate under Condition 6(E), means any day on which banks are open for
business in the place in which such Note Certificate is surrendered (or, as
the case may be, endorsed);
"Pool Factor" has the meaning indicated in Condition 5(C);
"Post Enforcement Call Option Holder" means GPCH Limited;
"Principal Amount Outstanding" has the meaning indicated in Condition
5(C);
"Principal Paying Agent" means Citibank, N.A. in its capacity as
principal paying agent at its Specified Office or such other person for the
time being acting as principal paying agent under the Current Issuer Paying
Agent and Agent Bank Agreement;
"Quotation Deposits" means (a) in respect of each Class of Dollar Notes,
Dollar deposits of $10,000,000, (b) in respect of each Class of Euro Notes,
Euro deposits of (euro)10,000,000, and (c) in respect of each Class of
Sterling Notes, Sterling deposits of (pound)10,000,000;
"Quotation Market" means (a) in respect of each Class of Euro Notes, the
Eurozone inter-bank market, and (b) in respect of each other Class of Notes,
the London inter-bank market;
132
"Quotation Period" means (a) on the initial Interest Determination Date
relating to (i) a Class of Notes (other than the Series 1 Class A1 Notes), one
month and two months and (ii) the Series 1 Class A1 Notes, one month and (b)
on each other Interest Determination Date relating to (i) a Class of Notes
(other than the Series 1 Class A1 Notes), three months and (ii) the Series 1
Class A1 Notes, one month up to and including the earliest of (i) the Interest
Payment Date in December 2004, (ii) the occurrence of a Trigger Event or (iii)
enforcement of the Current Issuer Security, and thereafter three months;
"Quotation Time" means (a) in respect of each Class of Euro Notes, 11.00
a.m. Brussels time on the relevant Interest Determination Date relating to
such Class, and (b) in respect of each other Class of Notes, 11.00 a.m. London
time on the relevant Interest Determination Date relating to such Class;
"Rate of Interest" and "Rates of Interest" have the meanings indicated in
Condition 4(C);
"Rating Agencies" means Standard & Poor's Rating Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., ▇▇▇▇▇'▇ Investors Service Limited and Fitch
Ratings Ltd.;
"Reference Banks" means the principal London offices of Citibank, N.A.,
ABN AMRO Bank N.V., Barclays Bank plc and JPMorgan Chase Bank and their
successors and/or such other bank as may be appointed pursuant to Condition
4(H);
"Reg S" means Regulation S under the United States Securities Act of
1933, as amended;
"Reg S Global Note Certificates" means the note certificates representing
the Series 3 Notes while in global form;
"Register" means the register of Noteholders kept by the Registrar and
which records the identity of each Noteholder and the number of Notes that
each Noteholder owns;
"Registrar" means Citibank, N.A. in its capacity as registrar at its
Specified Office or such other person for the time being acting as registrar
under the Current Issuer Paying Agent and Agent Bank Agreement;
"Relevant Margin" means:
(i) in respect of the Series 1 Class A1 Notes, [ ] per cent. per annum;
(ii) in respect of the Series 1 Class A2 Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
(iii) in respect of the Series 1 Class B Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
(iv) in respect of the Series 1 Class M Notes, [ ] per cent. per annum up
to and including the Interest Period ending on the Interest Payment
Date in March 2009 and thereafter [ ] per cent. per annum;
133
(v) in respect of the Series 1 Class C Notes, [ ] per cent. per annum up
to and including the Interest Period ending on the Interest Payment
Date in March 2009 and thereafter [ ] per cent. per annum;
(vi) in respect of the Series 2 Class A1 Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
(vii) in respect of the Series 2 Class A2 Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
(viii) in respect of the Series 2 Class B Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
(ix) in respect of the Series 2 Class M Notes, [ ] per cent. per annum up
to and including the Interest Period ending on the Interest Payment
Date in March 2009 and thereafter [ ] per cent. per annum;
(x) in respect of the Series 2 Class C Notes, [ ] per cent. per annum up
to and including the Interest Period ending on the Interest Payment
Date in March 2009 and thereafter [ ] per cent. per annum;
(xi) in respect of the Series 3 Class A Notes, [ ] per cent. per annum up
to and including the Interest Period ending on the Interest Payment
Date in March 2009 and thereafter [ ] per cent. per annum;
(xii) in respect of the Series 3 Class B Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
(xiii) in respect of the Series 3 Class M Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
and
(xiv) in respect of the Series 3 Class C Notes, [ ] per cent. per annum
up to and including the Interest Period ending on the Interest
Payment Date in March 2009 and thereafter [ ] per cent. per annum;
"Relevant Screen Rate" means:
(i) in respect of the first Interest Period, the Initial Relevant Screen
Rate; and
(ii) (1) in respect of subsequent Interest Periods in respect of the
Series 1 Class A1 Notes ending on or prior to the earliest of
(i) the Interest Payment Date in December 2004, (ii) the
occurrence of a Trigger Event or (iii) enforcement of the
Current Issuer Security, the arithmetic mean of the offered
quotations to leading banks for one month Dollar deposits in
the London inter-bank market displayed on the
▇▇▇-▇▇▇▇▇/Telerate Monitor at Telerate Page No. 3750 and
thereafter (i) the arithmetic mean of the offered quotations to
leading banks for one
134
month Dollar deposits if the period between the immediately
preceding Interest Payment Date and the immediately succeeding
Interest Payment Date is equal to one month (ignoring any
adjustment for non-Business Days), (ii) the arithmetic mean of
the offered quotations to leading banks for two month Dollar
deposits if the period between the immediately preceding
Interest Payment Date and the immediately succeeding Interest
Payment Date is equal to two months (ignoring any adjustment
for non-Business Days) or (iii) in all other cases the
arithmetic mean of the offered quotations to leading banks for
three month Dollar deposits, in each case, in the London
inter-bank market displayed on the ▇▇▇-▇▇▇▇▇/Telerate Monitor
at Telerate Page No. 3750;
(2) in respect of subsequent Interest Periods in respect of the
Dollar Notes (other than the Series 1 Class A1 Notes), the
arithmetic mean of the offered quotations to leading banks for
three-month Dollar deposits in the London inter-bank market
displayed on the ▇▇▇-▇▇▇▇▇/Telerate Monitor at Telerate Page
No. 3750;
(3) in respect of subsequent Interest Periods in respect of the
Euro Notes, the arithmetic mean of offered quotations for three
month Euro deposits in the Eurozone inter-bank market displayed
on the ▇▇▇-▇▇▇▇▇/Telerate Monitor at Telerate Page No. 248; and
(4) in respect of subsequent Interest Periods in respect of the
Sterling Notes, the arithmetic mean of offered quotations for
three month Sterling deposits in the London inter-bank market
displayed on the ▇▇▇-▇▇▇▇▇/Telerate Monitor at Telerate Page
No. 3750;
in each case, displayed on the above-mentioned page of the
▇▇▇-▇▇▇▇▇/Telerate Monitor (or such replacement page on that service which
displays the information) or, if that service ceases to display the
information, such other screen service as may be determined by the Current
Issuer (with the approval of the Note Trustee, in its sole discretion)
(rounded upwards, if necessary, to five decimal places);
"Second Priority Funding Deed of Charge" means the second priority deed
of charge dated the Closing Date, as amended and restated from time to time,
between, among others, Funding and the Current Issuer;
"Security Interest" means any mortgage or sub-mortgage, standard
security, charge or sub-charge (whether legal or equitable), encumbrance,
pledge, lien, hypothecation, assignment by way of security or other security
interest or title retention arrangement and any agreement, trust or
arrangement having substantially the same economic or financial effect as any
of the foregoing (other than a lien arising in the ordinary course of business
or by operation of law);
"Security Trustee" means The Bank of New York and its successors or any
other security trustee under the Funding Deed of Charge);
"Seller Share" means the Current Seller Share of the trust property
calculated as set forth in the Mortgages Trust Deed;
135
"Seller Share Event" means an event that will occur if, on a Distribution
Date, (i) the result of the calculation of the Current Seller Share on that
Distribution Date would be equal to or less than the Minimum Seller Share for
such Distribution Date (determined using the amounts of the Current Seller
Share and Minimum Seller Share that would exist after making the distributions
of mortgages trustee principal receipts due on that Distribution Date on the
basis that the Cash Manager assumes that those mortgages trustee principal
receipts are distributed in the manner described under "- Mortgages trustee
allocation and distribution of mortgages trustee principal receipts prior to
the occurrence of a trigger event") in the prospectus, and (ii) a Seller Share
Event has not occurred on the immediately preceding Distribution Date).
"Seller Share Event Distribution Date" means a Distribution Date on which
a Seller Share Event occurs;
"Series" or "series" means, in relation to the Notes, the Series 1 Notes,
the Series 2 Notes or the Series 3 Notes, as the context requires;
"Series 1 Class A Notes" means the Series 1 Class A1 Notes and the Series
1 Class A2 Notes;
"Series 1 Class A1 Notes" means the $[1,000,000,000] Series 1 Class A1
floating rate notes due December 2004;
"Series 1 Class A2 Notes" means the $[920,000,000] Series 1 Class A2
floating rate notes due March 2025;
"Series 1 Class B Notes" means the $[45,000,000] Series 1 Class B
floating rate notes due March 2044;
"Series 1 Class C Notes" means the $[60,000,000] Series 1 Class C
floating rate notes due March 2044;
"Series 1 Class M Notes" means the $[50,000,000] Series 1 Class M
floating rate notes due March 2044;
"Series 1 Notes" means collectively the Series 1 Class A Notes, the
Series 1 Class B Notes, the Series 1 Class M Notes and the Series 1 Class C
Notes;
"Series 2 Class A Notes" means the Series 2 Class A1 Notes and the Series
2 Class A2 Notes;
"Series 2 Class A1 Notes" means the $[900,000,000] Series 2 Class A1
floating rate notes due March 2044;
"Series 2 Class A2 Notes" means the (euro)[750,000,000] Series 2 Class A2
floating rate notes due March 2044;
"Series 2 Class B Notes" means the (euro)[75,000,000] Series 2 Class B
floating rate notes due March 2044;
"Series 2 Class C Notes" means the (euro)[60,000,000] Series 2 Class C
floating rate notes due March 2044;
136
"Series 2 Class M Notes" means the (euro)[45,000,000] Series 2 Class M
floating rate notes due March 2044;
"Series 2 Notes" means collectively the Series 2 Class A1 Notes, the
Series 2 Class A2 Notes, the Series 2 Class B Notes, the Series 2 Class M
Notes and the Series 2 Class C Notes;
"Series 3 Class A Notes" means the (pound)[500,000,000] Series 3 Class A
floating rate notes due March 2044;
"Series 3 Class B Notes" means the (pound)[20,000,000] Series 3 Class B
floating rate notes due March 2044;
"Series 3 Class C Notes" means the (pound)[20,000,000] Series 3 Class C
floating rate notes due March 2044;
"Series 3 Class M Notes" means the (pound)[10,000,000] Series 3 Class M
floating rate notes due March 2044;
"Series 3 Notes" means collectively the Series 3 Class A Notes, the
Series 3 Class B Notes, the Series 3 Class M Notes and the Series 3 Class C
Notes;
"Specified Date" has the meaning indicated in Condition 11(F);
"Specified Office" means, the context may require, in relation to any of
the Agents, the office specified against the name of such Agent in the Current
Issuer Paying Agent and Agent Bank Agreement or such other specified notice as
may be notified to the Current Issuer and the Note Trustee pursuant to the
Current Issuer Paying Agent and Agency Bank Agreement;
"Sterling", "Pounds Sterling" or "(pound)" means the lawful currency for
the time being of the United Kingdom of Great Britain and Northern Ireland;
"Sterling Notes" means the Series 3 Notes;
"Sterling Interest Determination Date" for the Sterling Notes and any
Interest Period for which the applicable Rate of Interest shall apply means
the first day of such Interest Period;
"Swap Collateral" means any asset (including, without limitation, cash
and/or securities) paid or transferred to the Current Issuer by a Swap
Provider in accordance with the terms of the relevant Current Issuer Swap
Agreement as collateral to secure the performance of that Swap Provider's
obligations under the relevant Current Issuer Swap Agreement together with any
income or distributions received in respect of such asset and any equivalent
of or replacement of such asset into which such asset is transformed;
"Swap Collateral Accounts" means the Swap Collateral Cash Account and the
Swap Collateral Securities Account;
"Swap Collateral Ancillary Document" means any document (including,
without limitation, any custodial agreement or bank account agreement but
excluding the Current Issuer Swap Agreements, the Current Issuer Cash
Management Agreement and the Current
137
Issuer Deed of Charge) as may be entered into by the Current Issuer from time
to time in connection with the Swap Collateral;
"Swap Collateral Available Principal Amount" means, at any time, the
amount of Swap Collateral which under the terms of the relevant Current Issuer
Swap Agreement may be applied at that time in satisfaction of the relevant
Swap Provider's obligations to the Current Issuer to the extent that such
obligations relate to payments to be made in connection with the Current
Issuer Pre-Enforcement Principal Priority of Payments or Current Issuer
Post-Enforcement Priority of Payments, as the case may be;
"Swap Collateral Available Revenue Amount" means, at any time, the amount
of Swap Collateral which under the terms of the relevant Current Issuer Swap
Agreement may be applied at that time in satisfaction of the relevant Swap
Provider's obligations to the Current Issuer to the extent that such
obligations relate to payments to be made in connection with the Current
Issuer Pre-Enforcement Revenue Priority of Payments or Current Issuer
Post-Enforcement Priority of Payments, as the case may be;
"Swap Collateral Cash Account" means an account opened in the name of the
Current Issuer for the purpose of holding Swap Collateral in cash and
maintained in accordance with the terms of the Current Issuer Cash Management
Agreement;
"Swap Collateral Securities Account" means a securities account opened in
the name of the Current Issuer for the purpose of holding Swap Collateral in
the form of securities and maintained in accordance with the terms of the
Current Issuer Cash Management Agreement;
"Swap Providers" means each of the Current Issuer Basis Rate Swap
Provider, the Current Issuer Dollar Currency Swap Provider and the Current
Issuer Euro Currency Swap Provider, or any one of them as the context
requires;
"TARGET Business Day" means a day on which the Trans-European Automated
Real-time Gross settlement Express Transfer (TARGET) System is open;
"Transaction Documents" means the Current Issuer Corporate Services
Agreement, the Current Issuer Intercompany Loan Agreement, the Funding Deed of
Charge, the Second Priority Funding Deed of Charge, the Current Issuer Bank
Account Agreement, the Current Issuer Deed of Charge, the Current Issuer Trust
Deed, the Current Issuer Paying Agent and Agent Bank Agreement, the Current
Issuer Cash Management Agreement, the Current Issuer Post-Enforcement Call
Option Agreement, the Current Issuer Dollar Currency Swap Agreement, the
Current Issuer Euro Currency Swap Agreement, the Current Issuer Basis Rate
Swap Agreement, any Swap Collateral Ancillary Document, the Current Issuer
Subscription Agreement, the Current Issuer Underwriting Agreement, the Current
Issuer Master Definitions Schedule the Funding (Granite 04-1) Guaranteed
Investment Contract, the Mortgages Trustee Guaranteed Investment Contract, the
Funding Guaranteed Investment Contract and such other related documents which
are referred to in the terms of the above documents;
"Transfer Agent" means Citibank, N.A. in its capacity as transfer agent
at its Specified Office or such other person for the time being acting as
transfer agent under the Current Issuer Paying Agent and Agent Bank Agreement;
138
"Trigger Event" means an Asset Trigger Event or a Non-Asset Trigger
Event, as the case may be;
"Trust Determination Date" means the first day (or, if not a London
Business Day, the next succeeding London Business Day) of each calendar month;
"UK Listing Authority" means the United Kingdom Financial Services
Authority in its capacity as competent authority pursuant to Part VI of the
FSMA;
"US Global Note Certificates" means the note certificates representing
the Series 1 Notes and the Series 2 Class A1 Notes while in global form; and
"US Paying Agent" means Citibank, N.A., acting in its capacity as US
paying agent through its New York office or such other person for the time
being acting as US paying agent under the Current Issuer Paying Agent and
Agent Bank Agreement.
139
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1 (A) Definitions
As used in this Schedule the following expressions shall have the
following meanings unless the context otherwise requires:
"Basic Terms Modification" means any of the following matters,
namely:
(i) any reduction or cancellation of the amount payable or,
where applicable, any modification, except where such
modification is in the opinion of the Note Trustee bound
to result in an increase, of the method of calculating
the amount payable or any modification of the date of
payment or, where applicable, of the method of
calculating the date of payment in respect of any
principal, premium or interest in respect of the Current
Issuer Notes;
(ii) any alteration in the priority in which payments are made to
Noteholders pursuant to any Current Issuer Priority of
Payments;
(iii) any alteration of the currency in which payments under the
Current Issuer Notes are to be made;
(iv) any alteration of the quorum or majority required to pass an
Extraordinary Resolution in respect of any such Basic Terms
Modification; and
(v) any alteration of this proviso or the proviso to paragraph 6
below;
"Block Voting Instruction" shall mean, in relation to any Meeting,
an English language document issued by the Registrar and dated in
which:
(a) it is certified that:
(i) certain specified Current Issuer Notes (each a
"Blocked Note") have been blocked in an account
with a clearing system and will not be released
until the conclusion of the Meeting and that the
holder of each Blocked Note or a duly authorised
person on its behalf has instructed the Registrar
that the votes attributable to such Blocked Note
are to be cast in a particular way on each
resolution to be put to the Meeting; or
(ii) each registered holder of such Current Issuer Notes or
a duly authorised person on its behalf has instructed
the Registrar that the vote(s) attributable to the
Current Issuer Note or Current Issuer Notes so held
(each a "Relevant Note") should be cast in a
particular way in relation to the resolution or
resolutions to be put to such Meeting or any adjourned
such Meeting;
140
(iii) and in each case that, all such instructions are,
during the period commencing 48 hours prior to the
time for which such Meeting or any such adjourned
Meeting is convened and ending at the conclusion or
adjournment thereof, neither revocable nor capable of
amendment;
(b) the aggregate principal amount of the Blocked Notes and
Relevant Notes so held are listed distinguishing with
regard to each such resolution between those in respect
of which instructions have been given as aforesaid that
the votes attributable thereto should be cast in favour
of the resolution and those in respect of which
instructions have been so given that the votes
attributable thereto should be cast against the
resolution; and
(c) one or more persons named in such document is or are
authorised and instructed by such Registrar to cast the
votes attributable to such Blocked Note and Relevant Notes
so listed in accordance with the instructions referred to in
(a) above as set out in such document;
"Chairman" means, in relation to any Meeting, the individual who
takes the chair in accordance with paragraph 4 (Chairman);
"Extraordinary Resolution" means (a) a resolution passed at a
Meeting duly convened and held in accordance with the provisions
of this Schedule 4 by a majority consisting of not less than
three-fourths of the persons voting thereat upon a show of hands
or if a poll is duly demanded by a majority consisting of not less
than three-fourths of the votes cast on such poll or (b) a
resolution in writing signed by or on behalf of all the
Noteholders of a particular class of Current Issuer Notes which
resolution may be contained in one document or several documents
in like form each signed by or on behalf of one or more of the
relevant Noteholders;
"Form of Proxy" means, in relation to any Meeting, a document in
the English language available from the Registrar signed by a
Noteholder or, in the case of a corporation, executed under its
seal or signed on its behalf by a duly authorised officer of the
corporation and delivered to the Registrar not later than 48 hours
before the time fixed for such Meeting, appointing one or more
persons who is or are authorised and instructed to vote in respect
of the Current Issuer Notes held by such Noteholder;
"Meeting" shall mean a meeting of Noteholders (whether originally
convened or reviewed following an adjournment);
"Proxy" means, in relation to any Meeting, a person appointed to
vote under a Block Voting Instruction or a Form of Proxy other
than:
(a) any such person whose appointment has been revoked and in
relation to whom the Registrar has been notified in writing
of such revocation by the time which is 48 hours before the
time fixed for such Meeting; and
141
(b) any such person appointed to vote at a Meeting which has
been adjourned for want of a quorum and who has not been
re-appointed to vote at a Meeting when it is resumed;
"Current Issuer Notes" and "Noteholders" shall mean:
(a) in connection with a Meeting of Senior Noteholders, Senior
Notes and Senior Noteholders, respectively;
(b) in connection with a Meeting of Mezzanine Noteholders,
Mezzanine Notes and Mezzanine Noteholders respectively;
(c) in connection with a Meeting of Class M Noteholders, Class M
Notes and Class M Noteholders respectively; and
(d) in connection with a Meeting of Junior Noteholders, Junior
Notes and Junior Noteholders respectively;
"Written Resolution" means a resolution in writing signed by or on
behalf of all holders of a class of Current Issuer Notes who for
the time being are entitled to receive notice of a Meeting in
accordance with the provisions of this Schedule, whether contained
in one document or several documents in the same form, each signed
by or on behalf of one or more such holders of the relevant class
of Current Issuer Notes;
"24 hours" means a period of 24 hours including all or part of a
day upon which banks are open for business in both the place where
the relevant Meeting is to be held and in each of the places where
the Paying Agents have their Specified Offices (disregarding for
this purpose the day upon which such Meeting is to be held) and
such period shall be extended by one period or, to the extent
necessary, more periods of 24 hours until there is included as
aforesaid all or part of a day upon which banks are open for
business in all of the places as aforesaid; and
"48 hours" means 2 consecutive periods of 24 hours.
(B) Issue of Block Voting Instructions
The holder of a Current Issuer Note may require the Registrar to issue a
Block Voting Instruction by arranging (to the satisfaction of the
Registrar) for such Current Issuer Note to be blocked in an account with
a clearing system not later than 48 hours before the time fixed for the
relevant Meeting. The holder of a Current Issuer Note may require the
Registrar to issue a Block Voting Instruction by delivering to the
Registrar written instructions not later than 48 hours before the time
fixed for the relevant Meeting. Any holder of a Current Issuer Note may
obtain an uncompleted and unexecuted Form of Proxy from the Registrar. A
Block Voting Instruction and a Form of Proxy cannot be outstanding
simultaneously in respect of the same Current Issuer Note.
142
(C) References to Blocking/Release of Current Issuer Notes
Where Current Issuer Notes are represented by Global Note Certificates
or are held in individual certificated form within a Clearing System)
references to blocking or release, of Current Issuer Notes shall be
construed in accordance with the usual practices (including blocking the
relevant account) of the relevant Clearing System.
(D) Issue of Forms of Proxy
(i) A holder of Current Issuer Notes may obtain an uncompleted and
unexecuted Form of Proxy from the Registrar.
(ii) Any holder of Current Issuer Notes which is a corporation may by
resolution of its directors or other governing body authorise any
person to act as its representative (a "Representative") in
connection with any Meeting.
(iii) Any Proxy or Representative shall, so long as such appointment
remains in force, be deemed for all purposes in connection with
the relevant Meeting, to be the holder of the Current Issuer Notes
to which such appointment relates and the holder of the Current
Issuer Notes shall be deemed for such purposes not to be the
holder.
2. Convening of Meeting
The Current Issuer or the Note Trustee may convene a Meeting at any
time, and the Note Trustee shall be obliged to do so subject to it being
indemnified to its satisfaction upon a request in writing of Noteholders
holding not less than one-tenth in principal amount of the outstanding
Current Issuer Notes of any class or classes entitled to vote and, if
the Current Issuer defaults for a period of seven days in convening such
a Meeting, the same may be convened by the Note Trustee or the
requisitionists. Every such Meeting shall be held on such date and at
such time and place as the Note Trustee may appoint or approve.
3. Notice
At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the Meeting is to be held) specifying the
place, day and hour of Meeting shall be given to the Noteholders or, as
the case may be the Noteholders of any class of Current Issuer Notes
entitled to vote, the Paying Agents, the Agent Bank and the Registrar
prior to any Meeting. Such notice, which shall be in the English
language, shall state generally the nature of the business to be
transacted at the Meeting thereby convened and shall specify the terms
of any resolution to be proposed. Such notice shall include statements,
if applicable, to the effect that (a) Current Issuer Notes may be
blocked in clearing systems for the purposes of appointing Proxies under
Block Voting Instructions until 48 hours before the time fixed for the
Meeting and (b) a Noteholder may appoint a Proxy either (i) under a
Block Voting Instruction by delivering written instructions to the
Registrar or (ii) by executing and delivering a Form of Proxy to the
Specified Office of the Registrar, in either case until 48 hours before
the time fixed for the Meeting. A copy of the notice shall be sent by
post to the Note Trustee (unless the Meeting is convened by the Note
Trustee) and, to the Current Issuer (unless the Meeting is convened by
the Current Issuer).
143
4. Chairman
A person (who may, but need not be, a Noteholder) nominated in writing
by the Note Trustee shall be entitled to take the chair at the relevant
Meeting, but if no such nomination is made or if at any Meeting the
person nominated shall not be present within 15 minutes after the time
appointed for holding the Meeting the Noteholders present shall choose
one of their number to be Chairman, failing which the Current Issuer may
appoint a Chairman. The Chairman of an adjourned Meeting need not be the
same person as was Chairman of the Meeting from which the adjournment
took place.
5. Quorum
Subject as provided in the Current Issuer Conditions:
(a) any such Meeting of two or more persons present holding
Current Issuer Notes or being Proxies or Representatives and
holding or representing in the aggregate not less than
one-twentieth of the principal amount of the Current Issuer
Notes of the relevant class or classes for the time being
outstanding (or, at any adjourned Meeting, two or more persons
being or representing Noteholders whatever the aggregate
Principal Amount Outstanding of the Current Issuer Notes of
the relevant class or classes) shall (except for the purpose
of passing an Extraordinary Resolution) form a quorum for the
transaction of business and no business (other than the
choosing of a Chairman) shall be transacted at any Meeting
unless the requisite quorum be present at the commencement of
the relevant business;
(b) the quorum at any such Meeting for passing an Extraordinary
Resolution other than an Extraordinary Resolution to sanction
a Basic Term Modification shall (subject as provided below) be
two or more persons present holding or representing Current
Issuer Notes or being Proxies or Representatives and holding
or representing in the aggregate more than half of the
aggregate principal amount of the Current Issuer Notes
outstanding (as defined in Clause 1.6 of the Current Issuer
Trust Deed) of the Current Issuer Notes of the relevant class
of classes (or, at any adjourned Meeting, two or more persons
being or representing Noteholders whatever the aggregate
principal amount of the Current Issuer Notes outstanding (as
defined in Clause 1.6 of the Current Issuer Trust Deed) of the
relevant class or classes so held or represented); or
(c) at any Meeting the business of which includes the passing of an
Extraordinary Resolution to sanction a Basic Terms Modification,
the quorum for passing the requisite Extraordinary Resolution shall be
two or more persons present holding Current Issuer Notes or being
Proxies or Representatives and holding or representing in the aggregate
not less than three quarters in aggregate principal amount of the
Current Issuer Notes outstanding (as defined in Clause 1.6 of the
Current Issuer Trust Deed) of the relevant class or classes (or, at any
adjourned Meeting, two or more persons present holding or representing
in the aggregate not less than one quarter in aggregate principal amount
of the Current Issuer Notes outstanding (as defined in Clause 1.6 of the
Current Issuer Trust Deed) of the relevant class or classes);
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Provided always that so long as at least the relevant fraction of the
aggregate Principal Amount Outstanding of the relevant class of Current
Issuer Notes referred to in sub-paragraph (a), (b) or (c) above, as the
case may be, is represented by a Global Note Certificate or a single
Individual Note Certificate, a single person being a Proxy or
Representative of such class of Current Issuer Notes represented thereby
shall be deemed to be two persons for the purpose of forming a quorum.
6. Adjournment for want of quorum
If within 15 minutes (or such longer period not exceeding 30 minutes as
the Chairman may decide) after the time appointed for any Meeting a
quorum is not present for the transaction of any particular business,
then, subject and without prejudice to the transaction of the business
(if any) for which a quorum is present:
(a) if convened upon the requisition of Noteholders, the Meeting shall
be dissolved; and
(b) in any other case, the Meeting shall stand adjourned to the
same day in the next week (or if such day is a public holiday
the next succeeding Business Day) at the same time and place
(except in the case of a Meeting at which an Extraordinary
Resolution is to be proposed in which case it shall stand
adjourned for such period, being not less than 13 clear days
nor more than 42 clear days, and to such place as may be
appointed by the Chairman either at or subsequent to such
Meeting and approved by the Note Trustee).
Provided, however, that, if within 15 minutes (or such longer period not
exceeding 30 minutes as the Chairman may decide) after the time
appointed for any adjourned Meeting a quorum is not present for the
transaction of any particular business, then, subject and without
prejudice to the transaction of the business (if any) for which a quorum
is present, the Meeting shall be dissolved as no Meeting may be
adjourned more than once for want of a quorum.
7. Notice following Adjournment
Notice of any adjourned Meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original Meeting as provided in paragraph 3 above, but as if 10 days
notice (exclusive of the day on which the notice is given and the day on
which the Meeting is to be resumed) were substituted for the 21 days
notice as provided in paragraph 3 above, and such notice shall
specifically state the relevant quorum requirements which will apply
when the Meeting resumes. Subject as aforesaid it shall not be necessary
to give any notice of an adjourned Meeting.
8. Show of hands
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to the vote or votes (if any) to which he may be entitled as
a Noteholder or as a Proxy or as a Representative.
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9. Chairman's declaration
At any Meeting, unless a poll is (before or on the declaration of the
result of the show of hands) validly demanded by the Chairman, the
Current Issuer, the Note Trustee or any person present holding a
Individual Note Certificate or being a Proxy or Representative (whatever
the principal amount of the Current Issuer Notes so held or represented
by him) a declaration by the Chairman that a resolution has been carried
or carried by a particular majority or lost or not carried by a
particular majority shall be conclusive evidence of the fact without
proof of the number or proportion of the votes recorded in favour of or
against such resolution.
10. Poll
Subject to paragraph 12 (Limitation on Adjournments) below, if at such
Meeting a poll is demanded it shall be taken in such manner and subject
as hereinafter provided either at once or after an adjournment as the
Chairman directs and the result of such poll shall be deemed to be the
resolution of the Meeting at which the poll was demanded as at the date
of the taking of the poll. The demand for a poll shall not prevent the
continuance of the Meeting for the transaction of any business other
than the motion on which the poll has been demanded.
11. Adjourned Meeting
The Chairman may with the consent of (and shall if directed by) any such
Meeting adjourn the same from time to time and from place to place, but
no business shall be transacted at any adjourned Meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the Meeting from which the adjournment took place.
12. Limitation on Adjournments
Any poll demanded at any adjourned Meeting on the election of a Chairman
or on any question of adjournment shall be taken at the Meeting without
adjournment.
13. Participation
Any Proxy and/or Representative, the Note Trustee and its lawyers and
financial advisers and any director, officer or employee of a
corporation being a trustee of the Current Issuer Trust Deed and any
director or officer of the Current Issuer and its lawyers and financial
advisers, the Registrar, and any other person authorised so to do by the
Meeting or the Note Trustee may attend and speak at any Meeting. Save as
aforesaid, but without prejudice to the definition of "Principal Amount
Outstanding", no person shall be entitled to attend and speak nor shall
any person be entitled to vote at any Meeting or join with others in
requesting the convening of such a Meeting or to exercise the rights
conferred on the Noteholders by Clause 7 (Proceedings, Actions and
Indemnification) of the Current Issuer Trust Deed unless he either
produces a Note Certificate or is a Proxy or a Representative or is the
holder of an Individual Note Certificate or Individual Note
Certificates. No person shall be entitled to vote at any Meeting in
respect of Current Issuer Notes held by, for the benefit of, or on
behalf of, the Current Issuer or the Borrowers. Nothing herein shall
prevent any of the Proxies named in any Block Voting Instruction or Form
of Proxy or any
146
Representative from being a director, officer or representative of or
otherwise connected with the Current Issuer.
14. Votes
Subject as provided in paragraph 13 (Participation) hereof at any
Meeting:
(a) on a show of hands every person who is present in person and is a
holder of Current Issuer Notes or is a Proxy or Representative
shall have one vote; and
(b) on a poll every such person who is so present shall have one vote
in respect of each US$1,000 (in the case of the Dollar Notes) or
(pound)1,000 (in the case of the Sterling Notes) or (euro)50,000
(in the case of the Euro Notes) in Principal Amount Outstanding of
the Current Issuer Notes in respect of which he is a Proxy or
Representative or in respect of which he is the holder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction or Form of Proxy any person entitled to more than one
vote need not use all his votes or cast all the votes to which he is
entitled in the same way.
15. Proxies need not be Noteholders
The Proxies named in any Block Voting Instruction or Form of Proxy and
representatives need not be Noteholders.
16. Deposit of votes
Each Block Voting Instruction together (if so requested by the Note
Trustee) with proof satisfactory to the Note Trustee of its due
execution on behalf of the Registrar and each Form of Proxy shall be
deposited by the Registrar at such place as the Note Trustee shall
approve not less than 24 hours before the time appointed for holding the
Meeting or adjourned Meeting at which the Proxies named in the Block
Voting Instruction or Form of Proxy propose to vote and in default the
Block Voting Instruction or Form of Proxy shall not be treated as valid
unless the Chairman decides otherwise before such Meeting or adjourned
Meeting proceeds to business. A notarially certified copy of each Block
Voting Instruction and Form of Proxy shall be deposited with the Note
Trustee before the commencement of the Meeting or adjourned Meeting but
the Note Trustee shall not thereby be obliged to investigate or be
concerned with the validity of or the authority of the Proxies named in
any such Block Voting Instruction or Form of Proxy.
17. Validity of Votes by Proxies
Any vote by a Proxy given in accordance with the terms of a Block Voting
Instruction or Form of Proxy shall be valid notwithstanding the previous
revocation or amendment of the Block Voting Instruction or the Form of
Proxy or of any of the Noteholders' instructions pursuant to which it
was executed provided that no intimation in writing of such revocation
or amendment shall have been received from the Noteholder by the
Registrar by the time being 24 hours before the time appointed for
holding the Meeting or adjourned Meeting at which the Block Voting
Instruction or Form of Proxy is to be used. Unless revoked, any
appointment of a Proxy under a Block Voting Instruction or Form of Proxy
in relation to a Meeting shall remain in
147
force in relation to any resumption of such Meeting following an
adjournment; provided, however, that no such appointment of a Proxy in
relation to a Meeting originally convened which has been adjourned for
want of a quorum shall remain in force in relation to such Meeting when
it is resumed. Any person appointed to vote at such a Meeting must be
re-appointed under a Block Voting Instruction or Form of Proxy to vote
at the Meeting when it is resumed.
18. Record Date
The Current Issuer may fix a record date for the purposes of any Meeting
or any resumption thereof following its adjournment for want of a quorum
provided that such record date is not more than 10 days prior to the
time fixed for such Meeting or (as the case may be) its resumption. The
person in whose name a Current Issuer Note is registered in the Register
on the record date at close of business in the city in which the
Registrar has its Specified Office shall be deemed to be the holder of
such Current Issuer Note for the purposes of such Meeting and
notwithstanding any subsequent transfer of such Current Issuer Note or
entries in the Register; and provided that any Proxy appointed pursuant
to a Form of Proxy shall so long as such appointment remains in force,
be deemed for all purposes in connection with any Meeting or proposed
Meeting specified in such appointment, to be the holder of the Current
Issuer Note to which such appointment relates and the holder of the
Current Issuer Note shall be deemed for the purposes not to be the
holder.
19. Powers
Subject always to the provisions of Clause 11 (Modification and Waiver)
of the Current Issuer Trust Deed and the Current Issuer Conditions, a
Meeting shall, in addition to the powers hereinbefore given, have the
following powers exercisable only by Extraordinary Resolution (subject
to the provisions relating to quorum contained in paragraphs 5 (Quorum)
and 6 (Adjournment for want of Quorum) above) namely:
(A) power to sanction any compromise or arrangement proposed to be
made between the Current Issuer, the Note Trustee, any appointee
of the Note Trustee and the Noteholders or any of them;
(B) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Note Trustee, any
appointee of the Note Trustee, the Noteholders or the Current
Issuer against any other or others of them or against any
other party to any of the Current Issuer Transaction Documents
or against any of their property whether such rights shall
arise under the Current Issuer Trust Deed, any other Current
Issuer Transaction Document or otherwise;
(C) power to assent to any modification of the provisions of the
Current Issuer Conditions, the Current Issuer Trust Deed or any
other Current Issuer Transaction Document which shall be proposed
by the Current Issuer, the Note Trustee, or any Noteholder or any
other person;
(D) power to give any authority or sanction which under the provisions
of the Current Issuer Conditions or the Current Issuer Trust Deed
is required to be given by Extraordinary Resolution;
148
(E) power to appoint any persons (whether Noteholders or not) as a
committee or committees to represent the interests of the
Noteholders and to confer upon such committee or committees any
powers or discretions which the Noteholders could themselves
exercise by Extraordinary Resolution;
(F) power to approve of a person to be appointed a trustee and power
to remove any trustee or trustees for the time being of the
Current Issuer Trust Deed;
(G) power to discharge or exonerate the Note Trustee and/or any
appointee of the Note Trustee from all liability in respect of any
act or omission for which the Note Trustee and/or such appointee
may have become responsible under the Current Issuer Trust Deed;
(H) power to remove any trustee;
(I) power to authorise the Note Trustee and/or any appointee of the
Note Trustee to concur in and execute and do all such deeds,
instruments, acts and things as may be necessary to carry out and
give effect to any Extraordinary Resolution;
(J) power to sanction any scheme or proposal for the exchange or
sale of the Current Issuer Notes for or the conversion of the
Current Issuer Notes into or the cancellation of the Current
Issuer Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
notes of the Current Issuer or any other company formed or to
be formed, or for or into or in consideration of cash, or
partly for or into or in consideration of such shares, stock,
notes, bonds, debentures, debenture stock and/or other
obligations and/or notes as aforesaid and partly for or into
or in consideration of cash and for the appointment of some
person with power on behalf of the Noteholders to execute an
instrument of transfer of the Individual Note Certificates
held by them in favour of the persons with or to whom the
Current Issuer Notes are to be exchanged or sold respectively,
provided, however, that:
(i) no Extraordinary Resolution of the Senior Noteholders or the
Mezzanine Noteholders or the Class M Noteholders or the Junior
Noteholders to sanction a Basic Terms Modification shall be
effective for any purpose unless it shall have been sanctioned
by an Extraordinary Resolution of (aa) (in the case of an
Extraordinary Resolution of the Senior Noteholders) the
Mezzanine Noteholders, the Class M Noteholders and the Junior
Noteholders or (bb) (in the case of an Extraordinary
Resolution of the Mezzanine Noteholders) the Senior
Noteholders (to the extent that any Senior Notes are then
outstanding) and the Junior Noteholders, or (cc) (in the case
of an Extraordinary Resolution of the Class M Noteholders) the
Senior Noteholders and the Mezzanine Noteholders (to the
extent that any Senior Notes and/or Mezzanine Notes are then
outstanding) and the Junior Noteholders or (dd) (in the case
of an Extraordinary Resolution of the Junior Noteholders) the
Senior Noteholders, the Class M Noteholders and the Mezzanine
Noteholders (to the extent that any Senior Notes, Class M
Notes and/or Mezzanine Notes are then outstanding).
149
(ii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the Mezzanine Noteholders shall be effective for any
purpose while any Senior Notes remain outstanding unless either
(aa) the Note Trustee is of the opinion that it will not be
materially prejudicial to the interests of any or all of the
Senior Noteholders or (bb) it is sanctioned by an Extraordinary
Resolution of the Senior Noteholders.
(iii) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the Class M Noteholders shall be effective for any
purpose while any Senior Notes or Mezzanine Notes remain
outstanding unless either (aa) the Note Trustee is of the opinion
that it will not be materially prejudicial to the interests of any
or all of the Senior Noteholders or Mezzanine Noteholders (as the
case may be) or (bb) it is sanctioned by an Extraordinary
Resolution of the Senior Noteholders or Mezzanine Noteholders.
(iv) subject as provided above in relation to an Extraordinary
Resolution concerning a Basic Terms Modification, no Extraordinary
Resolution of the Junior Noteholders shall be effective for any
purpose while any Senior Notes, Mezzanine Notes or Class M Notes
remain outstanding unless either (aa) the Note Trustee is of the
opinion that it will not be materially prejudicial to the
interests of any or all of the Senior Noteholders, the Mezzanine
Noteholders and/or the Class M Noteholders (as the case may be) or
(bb) it is sanctioned by an Extraordinary Resolution of the Senior
Noteholders, the Mezzanine Noteholders and/or the Class M
Noteholders (as the case may be).
20. Extraordinary Resolution binds all Noteholders
Subject to the provisos to paragraph 19 (Powers), any Extraordinary
Resolution passed at a Meeting duly convened and held in accordance with
the Current Issuer Trust Deed shall be binding upon the Noteholders of
all classes whether present or not present at such Meeting and whether
or not voting and each of them shall be bound to give effect thereto
accordingly and the passing of any such Extraordinary Resolution shall
be conclusive evidence that the circumstances justify the passing
thereof. Notice of the result of the voting on any Extraordinary
Resolution duly considered by the Noteholders shall be given by the
Current Issuer to the Noteholders in accordance with Condition 14
(Notice to Noteholders) within 14 days of such result being known
provided that the non-publication of such notice shall not invalidate
such result.
21. Senior Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Senior Notes:
(i) a single Meeting of the holders of all classes of Senior Notes may
be held whether or not there is a conflict of interest between the
holders of such classes of the Senior Notes;
(ii) there shall be no provision for a Meeting of the holders of one
class only of the Senior Notes; and
150
(iii) as the Senior Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Senior Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Dollar Currency Swap Rate or Euro Currency Swap Rate, as the case
may be.
22. Mezzanine Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Mezzanine Notes:
(i) a single Meeting of the holders of all classes of Mezzanine Notes
may be held whether or not there is a conflict of interest between
the holders of such classes of the Mezzanine Notes;
(ii) there shall be no provision for a Meeting of the holders of one
class only of the Mezzanine Notes; and
(iii) as the Mezzanine Notes are not all denominated in the same
currency, the Principal Amount Outstanding of any Mezzanine Note
denominated in Dollars or Euro shall be converted into Sterling at
the relevant Dollar Currency Swap Rate or Euro Currency Swap Rate,
as the case may be.
23. Class M Notes
Notwithstanding the foregoing, the following additional provisions shall
apply to Class M Notes:
(i) a single Meeting of the holders of all classes of the Class M
Notes may be held whether or not there is a conflict of interest
between the holders of such classes of the Class M Notes;
(ii) there shall be no provision for a Meeting of the holders of one
class only of the Class M Notes; and
(iii) as the Class M Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Class M Note denominated
in US Dollars or Euro shall be converted into Sterling at the
relevant Dollar Currency Swap Rate or the Euro Currency Swap Rate,
as the case may be.
24. Junior Notes
Notwithstanding the foregoing, the following additional provisions
shall apply to Junior Notes
(i) a single Meeting of the holders of all classes of Junior Notes may
be held whether or not there is a conflict of interest between the
holders of such classes of the Junior Notes;
(ii) there shall be no provision for a Meeting of the holders of one
class only of the Junior Notes; and
151
(iii) as the Junior Notes are not all denominated in the same currency,
the Principal Amount Outstanding of any Junior Note denominated in
Dollars or Euro shall be converted into Sterling at the relevant
Dollar Currency Swap Rate or Euro Currency Swap Rate, as the case
may be.
25. Minutes
Minutes of all resolutions and proceedings at every Meeting shall be
made and entered in books to be from time to time provided for that
purpose by the Current Issuer and any such minutes as aforesaid if
purporting to be signed by the Chairman of the Meeting at which such
resolutions were passed or proceedings transacted shall be conclusive
evidence of the matters therein contained and until the contrary is
proved every such Meeting in respect of the proceedings of which minutes
have been made shall be deemed to have been duly held and convened and
all resolutions passed or proceedings transacted thereat to have been
duly passed or transacted.
26. Further Regulations
Subject to all other provisions of the Current Issuer Trust Deed, the
Note Trustee may without the consent of the Current Issuer or the
Noteholders:-
(i) prescribe such further regulations regarding the requisitioning
and/or the holding of Meetings of Noteholders and attendance and
voting thereat as the Note Trustee may in its sole discretion
think fit; and
(ii) interpret the Current Issuer Conditions in the context of the more
detailed provisions set out herein.
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EXECUTION PAGE
The Current Issuer
Executed by
GRANITE MORTGAGES 04-1 PLC
as its deed as follows: By
Signed for and on its behalf by one ----------------------------------
of its directors and by another of for and on behalf of LDC
its directors/its secretary Securitisation Director No.1
Limited
Name ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
By
----------------------------------
for and on behalf of LDC
Securitisation Director No.2
Limited
Name ▇▇▇ ▇▇▇▇▇▇
----------------------------------
The Note Trustee
Executed by
THE BANK OF NEW YORK
as follows: By
Signed for and on its behalf by one ---------------------------------
of its duly authorised Duly Authorised Attorney/Signatory
attorneys/signatories
Name
---------------------------------
153