EXHIBIT 4.2
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇
C H A N C E
LIMITED LIABILITY PARTNERSHIP
CONFORMED COPY
27 MARCH 2000
RBS CARDS SECURITISATION FUNDING LIMITED
as Loan Note Issuer
SOUTH GYLE RECEIVABLES TRUSTEE LIMITED
as Receivables Trustee
THE BANK OF NEW YORK, LONDON BRANCH
as Security Trustee and Principal Paying Agent
THE ROYAL BANK OF SCOTLAND PLC
as Transferor
RBS ADVANTA
as Transferor
THE ROYAL BANK OF SCOTLAND INTERNATIONAL LIMITED
as Registrar
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SECURITY TRUST DEED
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.........................................2
2. Series Of Loan Notes...................................................5
3. Payments On The Loan Notes.............................................7
4. The Loan Note Register................................................11
5. Security..............................................................16
6. Form And Issue Of Loan Notes..........................................17
7. Loan Note Issuer Bank Accounts........................................20
8. Enforcement Of Security...............................................21
9. Provisions Upon Enforcement...........................................24
10. The Security Trustee..................................................29
11. Resignation Or Removal Of The Security Trustee........................43
12. Costs And Expenses Of The Loan Note Issuer............................46
13. Remuneration Of Security Trustee......................................46
14. Covenants By The Loan Note Issuer And The Transferors.................49
15. Acknowledgement Regarding Payments....................................52
16. Delegation By Security Trustee........................................53
17. Employment Of Agent By Security Trustee...............................54
18. Security Trustee Contracting With Loan Note Issuer....................55
19. Waiver, Authorisation And Determination...............................55
20. Modification..........................................................56
21. Loan Noteholder Deemed To Be Absolute Owner...........................56
22. Substitution..........................................................57
23. Currency Indemnity....................................................58
24. Notices...............................................................59
25. Rights Of Third Parties...............................................61
26. Severability Of Provisions............................................61
27. Further Assurances And Undertaking Of Non-Petition....................61
28. No Waiver; Cumulative Remedies........................................61
29. Release Of Collateral.................................................62
30. Counterparts..........................................................62
31. Third Party Beneficiaries.............................................63
32. Actions By Loan Noteholders...........................................63
33. Merger And Integration................................................63
34. TIA Prevails..........................................................63
35. Governing Law And Jurisdiction........................................64
SCHEDULE 1 Form Of Loan Note Certificate..................................66
SCHEDULE 2 Terms And Conditions Of The Loan Notes.........................68
SCHEDULE 3 Provisions For Meetings Of Loan Noteholders....................93
SCHEDULE 4 Notice Of Assignment (For The Purposes Of The Security
Interests (JERSEY) Law, 1983) As Amended)
(The "Jersey Security Law")...................................102
THIS SECURITY TRUST DEED is made as a deed on 27 March 2000 in Jersey
BETWEEN:
(1) RBS CARDS SECURITISATION FUNDING LIMITED, (registered number 76199) whose
registered office is at Royal Bank House, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the "LOAN NOTE ISSUER");
(2) SOUTH GYLE RECEIVABLES TRUSTEE LIMITED, a company incorporated in Jersey,
Channel Islands with registered number 76197 whose registered office is at
22 Grenville Street, St Helier, Jersey, Channel Islands, JE4 8PX (the
"RECEIVABLES TRUSTEE" which expression shall include such company and all
other persons or companies for the time being acting as the receivables
trustee or receivables trustees under the Receivables Trust Deed and Trust
Cash Management Agreement);
(3) THE BANK OF NEW YORK, a New York banking corporation acting through its
London Branch at One Canada Square, London, E14 5AL (in its capacities as
"SECURITY TRUSTEE" which expression shall include such company and all
other persons or companies for the time being acting as the trustee or
trustees under this Security Trust Deed and as "PRINCIPAL PAYING AGENT");
(4) THE ROYAL BANK OF SCOTLAND PLC, acting through its division RBS Cards,
(registered number 90312) whose registered office is at ▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (a "TRANSFEROR");
(5) RBS ADVANTA, (registered number 157256) whose registered office is at ▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (together with The Royal
Bank of Scotland plc, the "TRANSFERORS" or individually, a "TRANSFEROR");
and
(6) THE ROYAL BANK OF SCOTLAND INTERNATIONAL LIMITED, a company incorporated
under the laws of Jersey with limited liability whose registered office is
at Royal ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Channel Islands JE4
8PJ (the "REGISTRAR").
WHEREAS
(A) The Transferors are the legal owners of the Receivables (which terms and
other capitalised terms used in these recitals bear the meaning given to
them in Clause 1.1 below).
(B) Pursuant to the terms and subject to the conditions of the RSA, the
Transferors, and any Additional Transferor which accedes to the RSA, will
offer to sell by way of assignment all present and future Receivables
arising on Designated Accounts in the Bank Portfolio to the Receivables
Trustee, to hold on trust for the benefit of, inter alia, the Loan Note
Issuer, the Transferors and any Additional Transferor and the Receivables
Trustee may accept such offer and will purchase such Receivables in the
manner provided in the RSA.
(C) The Loan Note Issuer has established a loan note issuance programme under
which it may authorise the issue of a series of one or more Loan Notes, as
designated in the relevant Loan Note Supplement, to finance, initially,
the granting of an interest in the
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Receivables in the Securitised Portfolio by the Receivables Trustee to the
Loan Note Issuer, and thereafter to finance increases in such interest.
(D) Each Series of Loan Notes will be constituted and secured by, be subject
to and have the benefit of, inter alia, this Deed and the relevant Loan
Note Supplement to this Deed made between the Loan Note Issuer, the
Security Trustee and others. Following the grant to the Loan Note Issuer
of an initial interest in the Receivables Trust, further Loan Note
Supplements will be entered into when a further Loan Note is, or further
Loan Notes are, issued to finance increases in the Loan Note Issuer's
aggregate interest in the Receivables in the Securitised Portfolio.
(E) The Security Trustee has agreed to act as Security Trustee for each Series
in relation to which the Loan Note Issuer appoints it to act as set out in
the relevant Loan Note Supplement on the terms and subject to the
conditions contained in this Deed and the conditions of any relevant Loan
Note Supplement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Unless defined herein or the context requires otherwise, the words and
phrases defined in the Master Framework Agreement of even date herewith
and signed for the purposes of identification by the parties to this Deed,
the Terms and Conditions set out in Schedule 2 hereto and in each Loan
Note Supplement shall have the same meanings in this Deed (including the
recitals) unless the context otherwise requires. In the case of any
inconsistency between the defined terms in each of the said documents, the
definitions herein shall take precedence, then those in the Master
Framework Agreement, and then those in the Terms and Conditions and then
those in any Loan Note Supplement.
1.2 ADDITIONAL DEFINED TERMS
In addition to the terms defined in accordance with Clause 1.1, the
following expressions have the following meanings when used in this Deed:
"AUTHORISED SIGNATORY" means any director of the Loan Note Issuer or any
other person or persons notified to the Security Trustee by any director
of the Loan Note Issuer as being an Authorised Signatory pursuant to
Clause 14.1.20 of this Deed;
"JERSEY SECURITY LAW" means the Security Interests (Jersey) Law 1983;
"LOAN NOTE ISSUER JERSEY SECURED PROPERTY" means, in respect of a Series,
the property of the Loan Note Issuer the subject of the relevant Loan Note
Issuer Jersey Security Interest and specified in the relevant Loan Note
Supplement or in the Security Trust Deed Jersey Assigned Property pursuant
to this Deed, as the case may be;
"LOAN NOTE ISSUER JERSEY SECURITY INTEREST" means each security interest
created by the Loan Note Issuer in accordance with the Jersey Security Law
in respect of a Series pursuant to the relevant Loan Note Supplement or in
the Security Trust Deed Jersey Assigned Property pursuant to this Deed, as
the case may be;
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"LOAN NOTEHOLDER'S JERSEY CORPORATE SERVICES AGREEMENT" means the
agreement dated 27 March 2000, between the Loan Note Issuer and RBSI as
the same shall be amended, supplemented or novated from time to time;
"NOTEHOLDERS" has the meaning set out in the Note Trust Deed for a
particular Series;
"NOTE TRUST DEED" means the trust deed for any particular set of
Noteholders pursuant to a particular Series;
"NOTE TRUSTEE" means the person acting as such under the terms of any Note
Trust Deed;
"SECURED CREDITORS" in respect of a particular Series shall have the
meaning attributed thereto in the relevant Loan Note Supplement;
"SECURED OBLIGATIONS" shall have the meaning ascribed thereto in Clause
3.2 hereof;
"SECURED PROPERTY" means those items secured hereunder for all Series and
pursuant to the Loan Note Supplement pertaining to a particular Series and
where specified as such means the Secured Property for a particular
Series; and
"SECURITY TRUST DEED JERSEY SECURITY INTEREST" and "SECURITY TRUST DEED
JERSEY ASSIGNED PROPERTY" shall have the meanings ascribed thereto in
Clause 5.5;
1.3 PRINCIPLES OF INTERPRETATION
1.3.1 The agreements, representations and warranties of The Royal Bank
of Scotland plc and RBS Advanta in this Deed and any Loan Note
Supplement in their respective capacity as Transferors shall be
deemed to be the agreements, representations and warranties of The
Royal Bank of Scotland plc and RBS Advanta solely in such capacity
for so long as they act in such capacity under this Deed.
1.3.2 The following provisions shall apply in respect of value added
tax.
(a) Save where the context otherwise requires:
(i) all sums payable by the Loan Note Issuer or the
Receivables Trustee to any party pursuant hereto
(except where such party is the Security Trustee or a
Receiver appointed by it or the Principal Paying Agent)
are inclusive of any VAT which is chargeable on the
supply or supplies for which such sums (or any part
thereof) are the whole or part of the consideration for
VAT purposes and section 89 of the Value Added Tax Act
1994 ("VATA") shall not apply to affect the amount of
such sums; and
(ii) all sums payable by the Loan Note Issuer or the
Receivables Trustee (each party being a "PAYER") to the
Security Trustee or the Principal Paying Agent (the
"PAYEE") pursuant hereto are exclusive of any VAT which
is chargeable on the supply or supplies for which such
sums (or any part thereof) are the
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whole part of the consideration for VAT purposes. Where
the Payee makes a supply to any Payer for VAT purposes
pursuant hereto and VAT is or becomes chargeable on
such supply, the relevant Payer shall pay to the Payee
(in addition to any other consideration for such
supply) a sum equal to the amount of such VAT, such
payment to be made no later than 2 Business Days before
the last day (as notified to the Payer in writing by
the Payee) on which the Payee can account to H. M.
Customs & Excise for such VAT without incurring any
interest or penalties; and
(iii) all sums payable by the Security Trustee, the Principal
Paying Agent, either Transferor or the Registrar (each
party being a "PAYER") to any party ("PAYEE") pursuant
hereto are exclusive of any VAT which is chargeable on
the supply or supplies for which such sums (or any part
thereof) are the whole or part of the consideration for
VAT purposes. Where the Payee makes a supply to any
Payers for VAT purposes pursuant hereto and VAT is or
becomes chargeable on such supply, the relevant Payer
shall pay to the Payee (in addition to any other
consideration for such supply) a sum equal to the
amount of such VAT, such payment to be made no later
than 2 Business Days before the last day (as notified
to the Payer in writing by the Payee) on which the
Payee can account to H. M. Customs & Excise for such
VAT without incurring any interest or penalties.
(b) Any reference herein to any fee, cost, disbursement, expense
or liability incurred by any party and in respect of which
such party is to reimbursed (or indemnified) by any other
person or the amount of which is to be taken into account in
any calculation or computation shall, save where the context
otherwise requires, include:
(i) where such party is the Loan Note Issuer or the
Receivables Trustee, a reference to such part of such
cost or expense as represents VAT; and
(ii) where such party is either Transferor or the Registrar,
a reference to such part of such cost or expense as
represents VAT save to the extent that such party is
entitled to obtain credit or repayment in respect of
such VAT from H. M. Customs & Excise.
(c) Any reference herein to a party shall (where appropriate) be
deemed, at any time when such party is treated as a member of
a group for the purposes of section 43 of the VATA, to
include a reference to the representative member of such
group.
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1.3.3 Whenever this Deed refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Deed. All
other TIA terms used in this Deed that are defined by the TIA,
defined in the TIA by reference to another statute or defined by
SEC rule have the meanings assigned to them in the TIA or in such
statute or SEC rule.
1.3.4 All references to "DOLLARS" or the signs "US$" or "$" shall be
construed as references to the lawful currency for the time being
of the United States of America.
1.3.5 Unless otherwise defined herein or unless the context otherwise
requires words or expressions contained in this Deed shall bear
the same meanings as in the Companies ▇▇▇ ▇▇▇▇.
1.3.6 References in this Deed to any action, remedy or method of
judicial 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
judicial 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 judicial
proceeding described or referred to in this Deed.
1.3.7 Any reference to and the definition of any document (including
this Deed) shall be deemed to be a reference to such document as
from time to time amended, supplemented, modified or replaced (in
whole or in part), but disregarding any amendment, supplement,
variation or replacement taking place in breach of the terms of
this Deed.
1.3.8 Words denoting one gender only shall include the other genders.
2. SERIES OF LOAN NOTES
2.1 ISSUE OF LOAN NOTES
The Loan Note Issuer may from time to time (but subject always to the
provisions of this Deed), create and issue new Series consisting of one or
more Loan Notes upon such terms as to ranking, interest, conversion,
redemption and otherwise as the Loan Note Issuer may determine at the time
of issue of such Series, provided that a Loan Note shall not be issued to
more than one Person. Where there is more than one Loan Note in a Series,
such Loan Notes may differ as to interest rates and maturity and each such
type of Loan Note will comprise an individual Class. A Series may
therefore comprise a number of Classes, which Classes may be subordinated
to one or more other Classes of Loan Notes of that Series. Each Series of
Loan Notes shall be secured on, and only on, such Secured Property as may
be specified in this Deed and the relevant Loan Note Supplement, with
recourse limited to such Secured Property.
2.2 CONDITIONS PRECEDENT
Any Loan Notes which are to be created and issued pursuant to the
provisions of Clause 2.1 shall be constituted on the execution of the
relevant Loan Note Supplement in respect of such Loan Notes by the Loan
Note Issuer, the Security Trustee and the other parties
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named therein. The Security Trustee's consent is required to permit the
creation and issuance of any such Loan Notes, which consent shall be
evidenced by the Security Trustee's execution of the relevant Loan Note
Supplement. The Loan Note Issuer shall deliver such Loan Note Supplement
to the Security Trustee (duly stamped or denoted with any applicable stamp
duties or other documentation taxes) containing such provisions (whether
or not corresponding to any of the provisions contained in this Deed) as
the Security Trustee may require.
Each Loan Note Supplement shall be accompanied by:
2.2.1 a certificate signed by any one director of the Loan Note Issuer
certifying that no Loan Note Event of Default has occurred;
2.2.2 legal opinions (in form and substance satisfactory to the Security
Trustee) from legal advisers of recognised standing in such
jurisdictions as may be required by the Security Trustee; and
2.2.3 such other documents as the Security Trustee may require including
(without limitation) any Rating Agency consents.
2.3 PAYMENTS IN THE RELEVANT CURRENCY
All payments in respect of, under and in connection with this Deed shall
be made to the relevant persons in the relevant currency specified in the
terms applicable to the relevant Series.
2.4 EACH SERIES TO BE SEPARATE
The Loan Notes of each Series shall form a separate Series and
accordingly, save where specifically provided in this Deed, each covenant
and representation provided by the Loan Note Issuer in favour of the
Security Trustee and all other rights, Liabilities and obligations of the
Loan Note Issuer under this Deed shall apply separately to the Loan Notes
of each Series issued by the Loan Note Issuer. Accordingly, the provisions
hereof shall, in relation to any Series, be read independently unless the
context otherwise requires and accordingly the expression "SECURITY
TRUSTEE" shall be construed as a reference to the Security Trustee of such
Series, the expression "LOAN NOTES" shall be construed as a reference to
the Loan Notes of such Series, the expression "LOAN NOTEHOLDERS" shall be
construed as a reference to the Loan Noteholders of such Series, the
expression "SECURED CREDITORS" shall be construed as a reference to the
secured creditors of such Series so that each Series shall be constituted
as a separate security trust and, unless otherwise expressly provided,
events affecting one Series shall not affect another Series.
2.5 ALLOCATION OF COSTS
2.5.1 The provisions in this Deed concerning costs, expenses, fees,
remuneration and other financial obligations (whether arising
under indemnities or otherwise) shall apply separately to each
Series in respect of the costs, expenses, fees, remuneration and
financial obligations which arise in respect of such Series (and,
for the avoidance of doubt, the Secured Property in respect
thereof). All such amounts whether referable to one, some, or all
Series are hereafter referred to as the "COSTS". No Costs incurred
in respect of any Series will, save as
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specifically provided herein, be deducted from any amount payable
to the Secured Creditors in respect of any other Series, nor will
any such Costs specifically referable to one Series be in any way
charged to any Secured Creditors of another Series. The provisions
of this Deed shall be read accordingly.
2.5.2 If the Security Trustee determines in its sole discretion that any
Costs cannot be considered to be solely referable to a particular
Series, it shall be entitled in its sole discretion to allocate
such Costs between such Series as it shall consider those Costs to
be referable pro rata in the proportion which the aggregate
Principal Amount Outstanding in respect of each such Series bears
to the aggregate Principal Amount Outstanding of all such Series
(as at the date such Costs were incurred) in respect of which such
Costs were incurred as a whole.
2.6 RELATED AGREEMENTS
In relation to each Series, if specified in the relevant Loan Note
Supplement, the Loan Note Issuer may enter into one or more Swap
Agreements or other related agreements with a Counterparty and/or
guarantor, under which the Loan Note Issuer will make payments to such
Counterparty and the Counterparty will make payments to the Loan Note
Issuer as specified in such Swap Agreement or other related agreement.
Each swap transaction or other form of hedging transaction evidenced by a
Swap Agreement and other related agreement will terminate on the date
specified in the relevant Loan Note Supplement, unless terminated earlier
in accordance with its terms.
3. PAYMENTS ON THE LOAN NOTES
3.1 COVENANT TO PAY
The Loan Note Issuer hereby covenants with the Security Trustee that it
will, in accordance with the Loan Note Conditions, on any date when the
Loan Notes of any Series, or any of them, become due to be redeemed or
repaid in whole or in part in accordance with their Loan Note Conditions,
unconditionally pay or procure to be paid to or to the order of or for the
account of the Security Trustee, in immediately available funds in the
same currency as the currency such Loan Note is denominated in, the amount
then becoming due on that date in respect of the Loan Notes of the Series
or, if applicable, each Class of such Series and shall (subject to the
terms of such Loan Note or, if applicable, each Class of such Series,
until such payment (after as well as before any judgment or other order of
a competent court)) unconditionally pay to or to the order of or for the
account of the Security Trustee as aforesaid, interest on the Principal
Amount Outstanding of such Loan Notes, including Deferred Interest and
Additional Interest, if any, at the rate or rates set out in, or
calculated from time to time in accordance with, the terms of the relevant
Loan Note Supplement and Loan Note Conditions and on the dates provided
for in such terms, provided that:
3.1.1 the Loan Note Issuer shall only be obliged to pay such Principal
Amount and interest, Deferred Interest and Additional Interest, if
any, to the extent set out in this Deed and the related Loan Note
Conditions and Loan Note Supplement, in respect of such Series or,
if applicable, Class;
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3.1.2 every payment of a Principal Amount or interest, Deferred Interest
and Additional Interest, if any, in respect of Loan Notes of such
Series made to or to the order or for the account of the Principal
Paying Agent as provided in the Agency Agreement shall satisfy, to
the extent of such payment, the relative covenant in relation to
such Loan Note by the Loan Note Issuer contained in this Clause
except to the extent that there is failure in the subsequent
payment thereof to the relevant Loan Noteholders of such Series
under the terms of the relevant Series; and
3.1.3 in the case of any payment in respect of Loan Notes of such Series
made after the due date or subsequent to a Loan Note Event of
Default in respect of such Series, payment shall not be deemed to
have been made until the full amount due in accordance with the
terms thereof has been received by the Principal Paying Agent or
the Security Trustee in respect of such Series and notice to that
effect has been duly given to the relevant Loan Noteholder of such
Series in accordance with such terms.
The Security Trustee will hold the benefit of this covenant in relation to
each Series on trust for itself and the Loan Noteholders of that Series
according to their respective interests.
3.2 PAYMENTS TO SECURED CREDITORS
The Loan Note Issuer hereby covenants to pay to the Security Trustee (a)
all amounts due to the Secured Creditors of a Series in accordance with
the terms and conditions of the relevant Series Documents (the "SERIES
SECURED SUMS") PROVIDED, HOWEVER, that payment of any sum due to a Secured
Creditor of such Series made to such Secured Creditor shall, to that
extent, satisfy such obligation. This covenant shall only have effect each
time obligations are owed to Secured Creditors when the Security Trustee
shall hold the benefit of this covenant in relation to each Series on
trust for itself and each Secured Creditor of such Series according to
their respective interests. The Series Secured Sums and any amounts
payable by the Loan Note Issuer hereunder which the Security Trustee
determines in its sole discretion are referable or allocable to a Series
shall, in respect of such Series be referred to as the "SECURED
OBLIGATIONS".
3.3 DUTIES AND TAXES
The Loan Note Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Deed, and the Loan Note Issuer will
indemnify (with recourse limited to the proceeds of the Secured Property
relating to the applicable Series) the Security Trustee and the Secured
Creditors relating to such Series (each an "INDEMNIFIED PARTY") on demand
from and against all stamp duty, issue, registration, documentary and
other similar taxes paid by any such Indemnified Party in any jurisdiction
or jurisdictions in connection with any action taken by such Indemnified
Party to enforce the obligations of the Loan Note Issuer under this Deed
in respect of such Series. All payments by the Loan Note Issuer under this
Clause 3.3 shall be made free and clear of, and without withholding or
deduction for, any taxes, duties, assessments or governmental charges of
whatsoever nature imposed, levied, collected, withheld or assessed by
Jersey, the United Kingdom or the United States or
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any political subdivision or any authority thereof or therein having power
to tax, unless such withholding or deduction is required by law. In that
event, the Loan Note Issuer shall pay such additional amounts as will
result in the receipt by the Indemnified Party of such amounts as would
have been received by it if no such withholding or deduction had been
required. The Loan Note Issuer is empowered and authorised hereunder to
make any filings on its own behalf and any filings relating to the
Security in respect of any tax matters that are deemed necessary or
desirable in connection with this Deed or any Loan Note Supplement.
3.4 COVENANT OF COMPLIANCE
The Loan Note Issuer covenants with the Security Trustee separately in
respect of each Series that it will comply with, perform and observe all
the provisions of this Deed relating to such Series which are expressed to
be binding on it in respect of such Series. The Loan Note Conditions set
out in Schedule 2 shall be binding on the Loan Note Issuer and each
Secured Creditor of each Series, save as otherwise amended or supplemented
by the Loan Note Supplement for such Series. The Security Trustee shall be
entitled to enforce the obligations of the Loan Note Issuer under the
Series Documents in respect of a Series as if the same were set out and
contained in this Deed.
3.5 ONLY SECURITY TRUSTEE TO ACT
For any Series, only the Security Trustee, at its discretion and without
further notice, may pursue the remedies available under the general law or
under this Deed to enforce the rights under this Deed of the Secured
Creditors relating to such Series. No Secured Creditor relating to such
Series shall be entitled to proceed directly against the Loan Note Issuer
or the assets of the Loan Note Issuer to enforce the performance of any of
the provisions of this Deed and any relevant Loan Note Supplement or the
other Series Documents (if any) relating to such Series unless the
Security Trustee having become bound as aforesaid to take proceedings
fails or neglects to do so within a reasonable period of time and such
failure or neglect is continuing.
3.6 NON-PETITION AND LIMITED RECOURSE
The Security Trustee and Secured Creditors of any Series shall have
recourse only to the Secured Property in respect of such Series and, once
such Secured Property has been realised, shall not be entitled to take any
further steps against the Loan Note Issuer to recover any sum still
unpaid, and all claims and all rights to claim against the Loan Note
Issuer in respect of each such sum unpaid shall be extinguished. In
particular, no Secured Creditor in respect of any Series nor the Security
Trustee on their behalf may (at any time, whether prior to or after the
realisation of the Secured Property) institute against, or join any person
in instituting against the Loan Note Issuer any bankruptcy, winding up,
re-organisation, arrangement, administration, insolvency or liquidation
proceeding (but, for the avoidance of doubt, without prejudice to its
ability to appoint a Receiver pursuant to the terms of this Deed as
supplemented by the relevant Loan Note Supplement in relation to such
Series) or other proceeding under any similar law nor shall any of them
have any claim in respect of any such sums over or in respect of any
assets of the Loan Note Issuer which comprise Secured Property secured
only for any other Series.
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3.7 APPLICATION OF MONIES
3.7.1 For each Series, all monies received by the Security Trustee
pursuant to this Deed and the relevant Loan Note Supplement
relating only to such Series shall, despite any appropriation of
all or part of them by the Loan Note Issuer, be held by the
Security Trustee upon trust to apply in the manner and order of
priority set out in such Loan Note Supplement.
3.7.2 If the Security Trustee determines in its sole discretion that any
such monies as are described in Clause 3.7.1 cannot be considered
to be solely referable to a particular Series, it shall be
entitled in its sole discretion to allocate such monies between
such Series as it shall consider those monies to be referable pro
rata in the proportion which the aggregate Principal Amount
Outstanding in respect of each such Series bears to the aggregate
Principal Amount Outstanding of all such Series (as at the date
such monies were received) in respect of which such monies were
received.
3.8 APPLICATION OF FUNDS IN RESPECT OF VOID SERIES
Without prejudice to the other provisions of this Clause, if the Security
Trustee holds any moneys which represent principal, premium or interest in
respect of the Loan Notes in relation to any Series which have become void
under their terms, the Security Trustee shall (subject to payment or
provision for the payment or satisfaction of all amounts (howsoever
arising) payable under Clause 13 to the Security Trustee and/or any
attorney, manager, agent, delegate, receiver or other person appointed by
it under this Deed in respect of such Series and subject to any claims of
any Secured Creditors of such Series) pay the same to the Loan Note Issuer
(without prejudice to, or liability in respect of, any question as to how
such payment to the Loan Note Issuer shall be dealt with as between the
Loan Note Issuer and any other person).
3.9 APPORTIONMENT OF LIABILITIES BETWEEN SERIES
In the event that the Security Trustee takes any action to enforce the
Security in respect of more than one Series and is unable to apportion to
a particular Series any Liabilities incurred by it, the Security Trustee
shall be entitled in its sole discretion to apportion such Liabilities to
each of the Series in respect of which such Liabilities were incurred in
the proportion which the aggregate Principal Amount Outstanding in respect
of each such Series bears to the aggregate Principal Amount Outstanding of
all such Series (as at the date such Liabilities occurred) in respect of
which such Liabilities were incurred as a whole.
3.10 PAYMENTS
Any payment to be made in respect of any Series by the Loan Note Issuer or
the Security Trustee may be made in accordance with the terms of such
Series, and any payments so made shall be a good discharge pro tanto to
the Loan Note Issuer or, as the case may be, the Security Trustee.
3.11 NO IMPAIRMENT WITHOUT LOAN NOTEHOLDER CONSENT
Notwithstanding any other provision of this Deed but without prejudice to
Loan Note Condition 10, the right of any Loan Noteholder to receive
payment of principal and interest on the relevant Loan Note, on or after
the respective due dates expressed in such Loan Note, or to bring suit for
the enforcement of any such payment on or after such
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respective dates, shall not be impaired or affected without the consent of
such Loan Noteholder.
4. THE LOAN NOTE REGISTER
4.1 ESTABLISHMENT OF LOAN NOTE REGISTER
The Loan Note Issuer shall at all times cause to be kept and maintained at
the registered office of the Registrar a register (the "LOAN NOTE
REGISTER") which shall, without limitation, (i) record the identity of the
persons being the registered holders of each Loan Note of each Series (for
each such Loan Note, the "REGISTERED HOLDER") from time to time, the Class
(if applicable) of the Loan Notes to which they are entitled, their
respective addresses, the applicable Issue Date, their respective
Principal Amounts Outstanding, the related Series and, if applicable,
Class to which they belong and any other relevant information in respect
thereof and (ii) register transfers of the Loan Notes.
4.2 ENTRIES IN LOAN NOTE REGISTER CONCLUSIVE
The entries in the Loan Note Register shall be conclusive evidence of
title to the Loan Notes in the absence of manifest error, and the Secured
Creditors, the Loan Note Issuer, the Security Trustee, the Registrar and
the Principal Paying Agent shall be entitled to treat the Registered
Holder whose identity is recorded in the Loan Note Register (or, if more
than one name is recorded, the first name) as the holder of the related
Loan Note, notwithstanding notice to the contrary or anything to the
contrary contained herein unless such person is designated a nominee for
another person when at its election such other person may be treated as
the said holder.
4.3 INSPECTION OF LOAN NOTE REGISTER
The Loan Note Issuer shall procure that the Loan Note Register shall be
available for inspection by the Transferors, any Additional Transferor,
the Principal Paying Agent, the Security Trustee, any Secured Creditor or
any Loan Noteholder or any third party on its behalf at any reasonable
time upon reasonable prior notice to the Loan Note Issuer. No transfer or
assignment of a Loan Note otherwise permitted hereunder shall be effective
unless and until it has been duly recorded in the Loan Note Register as
provided in this Clause 4.
4.4 TRANSFERS OF LOAN NOTES
4.4.1 Save for the initial transfer of any Loan Note from any Loan
Noteholder under a Series to the Note Trustee or its nominee for
such Series, no transfer of any Loan Note of a Series shall be
effective and no Loan Note of a Series shall be subjected to any
Encumbrance except in accordance with this Clause 4.4 (unless
specified otherwise in any Loan Note Supplement). Any Loan
Noteholder may make a transfer of the whole (but not any part) of
its Loan Note or create or grant any Encumbrance in respect of
such Loan Note only with the prior written consent of the Security
Trustee, the Transferors and any Additional Transferor (such
consent not to be withheld unreasonably) PROVIDED, HOWEVER that no
such transfer or Encumbrance will be permitted unless (i) the Loan
Note Issuer shall have received, prior to such transfer or
Encumbrance taking effect, written confirmation from the Person to
which such transfer is to be made or in whose favour such
Encumbrance is to be granted or created of that such transfer or
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Encumbrance will not cause the holder of the relevant Loan Note to
be a person other than a person in the United Kingdom, (ii) such
transfer or Encumbrance will not cause the number of Persons in
whose names the Loan Note will or have been registered in the Loan
Note Register to exceed ten and (iii) the Loan Noteholder making
such transfer or subjecting the Loan Note to such Encumbrance
shall be solely responsible for any costs, expenses or taxes which
are incurred by the Loan Note Issuer, the Loan Noteholder or any
other Person in relation to such Transfer or Encumbrance.
4.4.2 It is a condition of the Security granted in favour of the Loan
Noteholder that the Loan Noteholder in respect of the relevant
Series will not make any transfer or create or grant any
Encumbrance in respect of its Loan Note except in accordance with
this Clause 4.4 and that the Loan Noteholder acknowledges that any
attempt to do so shall be void.
4.5 APPOINTMENT OF REGISTRAR
4.5.1 Each of the Loan Note Issuer and for the purposes of the
provisions of any relevant Loan Note Supplement under the terms of
which the Registrar acts as agent of the Security Trustee at any
time, the Security Trustee hereby appoints the Registrar as its
agent in relation to the registration and transfer of Loan Notes.
4.5.2 The Registrar accepts its appointment as agent of the Loan Note
Issuer pursuant to Clause 4.5.1, and for the purposes of the
circumstances referred to in Clause 4.5.1 only, as agent of the
Security Trustee, in relation to the registration and transfer of
the Loan Notes for each Series and agrees to maintain the Loan
Note Register and comply with the provisions of the Loan Note
Conditions for each relevant Series and this Deed.
4.6 TERMS OF APPOINTMENT OF REGISTRAR
4.6.1 The Registrar may, in connection with its services hereunder:
(a) rely upon the terms of any notice, communication or other
document believed by it to be genuine; and
(b) engage and pay for the advice or services of any lawyers or
other experts whose advice or services it considers necessary
and rely upon any advice so obtained (and the Registrar shall
be protected and shall incur no liability as against the Loan
Note Issuer or any holder of Loan Notes in respect of any
action taken, or permitted to be taken, in accordance with
such advice and in good faith).
4.6.2 The Registrar shall comply with the terms and conditions set out
in this Deed and in the Loan Note Conditions for each Series with
respect to the transfer and registration of the Loan Notes for the
relevant Series and such other duties as are necessarily
incidental thereto. The Registrar shall not be under any fiduciary
duty towards any person other than the Loan Note Issuer and the
Security Trustee, and shall not be responsible for or liable in
respect of any act or
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omission of any other person or be under any obligation towards
any person other than the Loan Note Issuer and the Security
Trustee.
4.6.3 The Registrar shall maintain at its registered office in Jersey,
or at such other place outside the United Kingdom as the Security
Trustee and the Loan Note Issuer may agree, the Loan Note Register
showing the amount of the Loan Notes for each Series from time to
time outstanding and the face value, the Issue Date and the
Redemption Date applicable to each Loan Note for each Series
outstanding and all subsequent transfers and changes of ownership
thereof and the names and addresses of the relevant Loan
Noteholders. The Loan Note Register may be closed by the Loan Note
Issuer for such periods as are specified in the Loan Note
Conditions for the relevant Series.
4.6.4 The Loan Notes for each Series shall have the identifying series
number which the Registrar shall enter in the Loan Note Register.
4.6.5 Prior to the occurrence of a Loan Note Event of Default, or
following the occurrence of a Loan Note Event of Default which has
either ceased to be continuing or has been waived by the Security
Trustee, a Loan Noteholder shall be treated as the owner of the
relevant Loan Note in accordance with the Loan Note Conditions for
the relevant Series.
4.7 PROVISION OF INFORMATION
The Registrar shall give to the Principal Paying Agent such further
information with regard to its activities hereunder as may reasonably be
required by it for the proper carrying out of its duties.
4.8 NOTIFICATION OF THE PRINCIPAL AMOUNT OUTSTANDING
The Registrar shall, on the third Business Day prior to each due date for
payment in respect of the Loan Notes, notify the Principal Paying Agent of
the aggregate Principal Amount Outstanding of all Loan Notes and the
Principal Amount Outstanding of the Loan Notes of each Series.
4.9 COPY DOCUMENTS AVAILABLE FOR INSPECTION
The Registrar shall make copies of the Security Trust Deed and any
relevant Loan Note Supplement available for inspection by the Loan
Noteholders and the Secured Creditors at its specified office at all
reasonable times.
4.10 FREEDOM TO TRANSACT
The Registrar may purchase, hold and dispose of any Loan Notes, and may
enter into any transaction (including any depository, trust or agency
transaction) with any holders of Loan Notes or with any other person in
the same manner as if it had not been appointed as the agent of the Loan
Note Issuer in relation to the Loan Notes.
4.11 INDEMNITY
The Loan Note Issuer shall indemnify the Registrar against any liabilities
which it incurs otherwise than by reason of its own negligence, fraud,
default, or breach of duty as a result or arising out of or in relation to
its acting as the agent of the Loan Note Issuer in relation to the Loan
Notes.
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4.12 TERMINATION OF APPOINTMENT OF REGISTRAR
4.12.1 The Registrar may resign its appointment upon not less than 90
days' notice in writing to the Loan Note Issuer (with a copy to
the Security Trustee), provided that such resignation shall not
take effect until a successor has been duly appointed and notice
of such appointment has been given to all Loan Noteholders, the
Loan Note Issuer and the Security Trustee.
4.12.2 The Loan Note Issuer may revoke its appointment of the Registrar
by not less than 2 Business Days' notice in writing to the
Registrar (with a copy to the Security Trustee), provided that
such revocation shall not take effect until a successor has been
duly appointed on substantially similar terms and notice of such
appointment has been given to all Loan Noteholders and the
Security Trustee by the Loan Note Issuer.
4.12.3 The appointment of the Registrar shall terminate forthwith if (a)
an encumbrancer takes possession of, or a receiver, manager or
other similar officer is appointed, of the whole or any part of
the undertaking, assets and revenues of the Registrar, (b) the
Registrar admits in writing its insolvency or inability to pay its
debts as they fall due, (c) an administrator or liquidator of the
Registrar or the whole or any part of the undertaking, assets and
revenues of the Registrar is appointed (or application for any
such appointment is made), (d) the Registrar takes any action for
a readjustment or deferment of any of its obligations or makes a
general assignment or an arrangement or composition with or for
the benefit of its creditors or declares a moratorium in respect
of any of its indebtedness, (e) an order is made or an effective
resolution is passed for the winding up, liquidation or
dissolution of the Registrar or (f) any event occurs which has an
analogous effect to any of the foregoing.
4.13 SUCCESSOR REGISTRAR
The Loan Note Issuer may with the prior written approval of the Security
Trustee and on the termination of appointment of the Registrar in
accordance with Clause 4.12.3 appoint a successor registrar and shall
forthwith give notice of any such appointment to the Security Trustee and
all Loan Noteholders, whereupon the Loan Note Issuer and the successor
registrar shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement on
the terms specified in this Deed.
4.14 REGISTRAR MAY APPOINT SUCCESSOR
If the Registrar gives notice of its resignation in accordance with Clause
4.12.1 or its appointment has been revoked in accordance with Clause
4.12.2 and by the tenth day before the expiry of such notice given in
accordance with Clause 4.12.1, or immediately on receipt of such notice
given in accordance with Clause 4.12.2, a successor has not been duly
appointed, the Registrar may itself, following such consultation with the
Loan Note Issuer as is practicable in the circumstances and with the prior
written approval of the Security Trustee, appoint as its successor any
reputable and experienced financial institution outside the United Kingdom
and give notice of such appointment to the Loan Note Issuer, the Security
Trustee and all Loan Noteholders, whereupon the Issuer and such successor
registrar shall acquire and become subject to the same rights and
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obligations between themselves as if they had entered into an agreement on
the terms specified in this Deed.
4.15 RELEASE
Upon any resignation or revocation taking effect under Clause 4.12.1 or
4.12.2 or any termination under Clause 4.12.3, the Registrar shall:
(b) be released and discharged from its obligations under this Deed (save
that it shall remain entitled to the benefit of and be subject to
Clauses 4.10 and 4.11);
(c) deliver the Loan Note Register to the Loan Note Issuer or to the
successor registrar; and
(d) upon appropriate notice, provide reasonable assistance to its
successor for the discharge of its duties and responsibilities
hereunder.
4.16 FEES AND EXPENSES
The Loan Note Issuer shall, in respect of the relevant Series of Loan
Notes, pay to the Registrar for its own account, such fees as shall be
agreed from time to time between the Loan Note Issuer and the Registrar in
respect of the services of the Registrar hereunder (plus any applicable
value added tax).
4.17 ADDITIONAL EXPENSES
The Loan Note Issuer shall on demand reimburse the Registrar and the
Security Trustee for its own account for all expenses incurred by it in
the negotiation, preparation and execution of this Deed and any relevant
Loan Note Supplement and for all out-of-pocket expenses (including,
without limitation, legal fees and any publication, advertising,
communication, courier, postage and other out-of-pocket expenses) properly
incurred in connection with its services hereunder (plus any applicable
value added tax).
4.18 INDEMNITY
The Loan Note Issuer shall pay all stamp, registration and other similar
taxes and duties (including any interest and penalties thereon or in
connection therewith) which are payable upon or in connection with the
execution and delivery of this Deed, and the Loan Note Issuer shall
indemnify the Registrar and the Security Trustee on demand against any
Liability which it incurs as a result or arising out of or in relation to
any failure to pay or delay in paying any of the same. All payments by the
Loan Note Issuer under this Clause 4.18 shall be made free and clear of,
and without withholding or deduction for, any taxes, duties, assessments
or governmental charges of whatsoever nature imposed, levied, collected,
withheld or assessed by Jersey, the United Kingdom or the United States or
any political subdivision or any authority thereof or therein having power
to tax, unless such withholding or deduction is required by law. In that
event, the Loan Note Issuer shall pay such additional amounts as will
result in the receipt by the Registrar or the Security Trustee of such
amounts as would have been received by it if no such withholding or
deduction had been required.
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5. SECURITY
5.1 ASSIGNMENT AND FLOATING CHARGE
The Loan Note Issuer with full title guarantee and as continuing security
for all the moneys and other Liabilities payable or owing by the Loan Note
Issuer under this Deed and in respect of the Secured Obligations of all
the Series from time to time hereby assigns absolutely by way of first
fixed security to the Security Trustee all of the Loan Note Issuer's
right, title and interest in and to, and the entire benefit of, the Loan
Noteholder's Jersey Corporate Services Agreement and charges to the
Security Trustee, by way of first floating charge, the whole of its
undertaking and assets to the extent that such undertaking and assets are
not effectively encumbered by the security created by or pursuant to this
Deed or to any relevant Loan Note Supplement relating to any Series and
the Security Trustee shall hold the property so assigned or charged in
this Clause 5.1 on trust for itself and the Secured Creditors of all
Series, provided that such security may only be enforced and the floating
charge shall only crystallise in accordance with the provisions of Clause
8.
5.2 ADDITIONAL SECURITY
Additional security as may be required in respect of each Series or
(provided that the Security Trustee consents to the same) in respect of
any transaction entered into by the Loan Note Issuer relating to or
connected with any arrangement for the issue of any Series of Loan Notes
shall be created by the Loan Note Issuer in accordance with this Deed and
by the Loan Note Supplement relating to such Series.
5.3 APPLICATION OF CLAUSE 5 TO LOAN NOTE SUPPLEMENTS
The following provisions of this Clause 5 shall apply to the security
created in Clause 5.1 and to the Security in relation to each Series,
except as may be otherwise specified in the relevant Loan Note Supplement
relating to each Series.
5.4 RIGHTS OF SECURED CREDITORS
Each Secured Creditor (other than the Security Trustee) will belong to one
of the categories of Secured Creditor set out below for the purposes of
this Deed. The entitlement of any Secured Creditor to the relevant Secured
Property for a given Series of Loan Notes, unless otherwise specified
herein, shall be specified in the relevant Loan Note Supplement. The
categories of Secured Creditor (other than the Security Trustee, any
Receiver appointed by it and the Principal Paying Agent) are as follows:
(i) LOAN NOTEHOLDER: the beneficial entitlement of each Loan
Noteholder (and where there are Classes, any Loan Noteholder
holding one of the Classes in that Series) to a security interest
in the Secured Property in relation to that Series shall be
specified in the relevant Loan Note Supplement and shall be
expressed to constitute or form part of that Series.
(ii) ENHANCEMENT PROVIDER: if the relevant Loan Note Supplement
specifies that an Enhancement Provider is to be a Secured Creditor
of the Secured Property in relation to that Series or any Class
thereof, the beneficial entitlement of such Enhancement Provider
to a security interest in the relevant Secured Property shall be
specified in the relevant Loan Note Supplement and shall be
expressed to constitute or form part of that related Series.
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(iii) OTHER SECURED CREDITORS: if the relevant Loan Note Supplement
specifies that any other party is to be a Secured Creditor of the
Secured Property in relation to such Series or any Class thereof,
the beneficial entitlement of such additional Secured Creditor to
a security interest in the relevant Secured Property shall be
specified in the relevant Loan Note Supplement.
5.5 SECURITY TRUST DEED JERSEY - ASSIGNED PROPERTY
To the intent that the Security Trustee (for itself and on trust for the
other Secured Creditors of all Series) shall have a security interest (the
"SECURITY TRUST DEED JERSEY SECURITY INTEREST") in accordance with the
Jersey Security Law (and as secured party for the purposes of the Jersey
Security Law) in the Loan Note Issuer's Corporate Services Agreement for
the payment or discharge of the Secured Obligations of all the Series and
subject to Clause 8, the Loan Note Issuer (as debtor for the purposes of
the Jersey Security Law) assigns to the Security Trustee (or to such other
person acting on its behalf as it shall nominate) to the extent that the
same is situate in Jersey at any relevant time all of its rights, title
and interest in and to, and the entire benefit of the Loan Note Issuer's
Corporate Services Agreement (the "SECURITY TRUST DEED JERSEY ASSIGNED
PROPERTY" which shall include any element thereof) and for the purposes of
perfection and in connection with the creation of the Security Trust Deed
Jersey Security Interest pursuant hereto, the Loan Note Issuer joins with
the Security Trustee in giving the notice in the form set out in Schedule
4 to each person from whom the Loan Note Issuer (as assignor) would have
been entitled to claim the assigned property but for the assignment.
6. FORM AND ISSUE OF LOAN NOTES
6.1 LOAN NOTES
The Loan Notes of each Series will be represented by a Loan Note
Certificate in, or substantially in, the form set out in Schedule 1
(unless otherwise provided in the relevant Loan Note Supplement). For the
avoidance of doubt, a Series may consist of a single Loan Note or any
number of Loan Notes and the Loan Note Certificate may represent any
number of such Loan Notes, PROVIDED HOWEVER that where a Series also
consists of more than one Class of Note, only Loan Notes of a single Class
may be represented by any one Loan Note.
6.2 SIGNING OF LOAN NOTES
The Loan Note Certificates shall be signed manually or in facsimile by two
Authorised Signatories of the Loan Note Issuer and shall be authenticated
by manual signature by or on behalf of the Principal Paying Agent. Each
such Loan Note Certificate so executed and authenticated shall be a
binding and valid obligation of the Loan Note Issuer. The Loan Note Issuer
may adopt and use the signature of any person who, at the date of signing
a Loan Note Certificate, is an Authorised Signatory of the Loan Note
Issuer, notwithstanding that such person may for any reason (including
death) have ceased to be an Authorised Signatory at the time of the
creation and issue of the relevant Loan Note.
6.3 ISSUE OF LOAN NOTES
6.3.1 An issue of Loan Notes may only be made by the Loan Note Issuer in
accordance with this Deed and the terms of the relevant Loan Note
Supplement and in any event with the consent of the Security
Trustee, the Transferors and any Additional Transferor (such
consent to be evidenced by the execution of the
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relevant Loan Note Supplement by the Security Trustee, the
Transferors and any such Additional Transferor as set out in this
Clause 6.3).
6.3.2 On any Closing Date, the Loan Note Issuer shall procure the
registration of the Loan Note in the name of the relevant initial
Loan Note Holder with a subsequent transfer to the Note Trustee
for such Series or its nominee and delivery of the appropriate
Loan Notes to the Note Trustee under the relevant Deed of Charge.
The Loan Note Issuer shall not so procure the authentication and
delivery and the Note Trustee under the relevant Deed of Charge
shall not accept the Loan Notes unless the following documents
have been received by the Security Trustee in form and substance
satisfactory to it:
(i) a Loan Note Supplement in respect of the Series of Loan
Notes to be issued satisfying the criteria set out in
Clause 6.4 executed by each of the parties thereto
(including the Transferors, any Additional Transferor and
the Loan Note Issuer) and specifying the Principal Terms
of such Series and the supplements, amendments and
variations to this Deed as a consequence thereof;
(ii) any applicable Enhancement, as specified in such Loan Note
Supplement;
(iii) the agreement, if any, pursuant to which the Enhancement
Provider agrees to provide its Enhancement, if any;
(iv) solvency certificate signed by a duly authorised signatory
and dated the Closing Date, from each of the Transferors
and any Additional Transferor and the Loan Note Issuer;
(v) such legal opinions as the Security Trustee may reasonably
require; and
(vi) each other document set out in the relevant Signing and
Closing Agenda.
6.4 LOAN NOTE SUPPLEMENTS
6.4.1 A Loan Note Supplement shall be executed in order to effect each
issuance of a Series of Loan Notes and to secure the relevant
Secured Property relating to such Loan Notes, which shall:
(vii) be executed by the Transferors, any Additional Transferor
(if applicable), the Receivables Trustee, the Principal
Paying Agent, the Registrar, the Security Trustee and the
Loan Note Issuer;
(viii) set out the consent of the Security Trustee, the
Transferors and any Additional Transferor to such issue of
Loan Notes which shall be deemed to be given by their
execution of the Loan Note Supplement;
(ix) constitute, after the issuance of the relevant Series of
Loan Notes, a supplement by the Loan Note Issuer and the
Security Trustee to this Deed
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which shall thereafter be read and construed as
supplemented, amended and varied by such Loan Note
Supplement;
(x) specify the name and category of each Loan Noteholder of
the relevant Series (and Class of the relevant Series, if
applicable) and, if there is more than one Class in a
Series, the rights and priorities of each Class vis-a-vis
the other Classes constituting the new Series;
(xi) set out the principal terms of such Series (all such terms
the "PRINCIPAL TERMS") which shall include, without
limitation, the following:
(1) the Principal Amount Outstanding of the Loan Notes
upon issue for such Series;
(2) the Secured Property for such Series;
(3) the Closing Date;
(4) the names of any accounts or ledgers to be used by
such Series and the terms governing the operation of
any such accounts or ledgers and use of moneys
therein;
(5) any additional Secured Creditors;
(6) the terms of any Enhancement with respect to such
Series, and the Enhancement Provider, if applicable;
(7) the terms governing any deposit into any account
provided for such Series; and
(8) any other relevant terms of such Series.
6.4.2 The Loan Note Issuer shall, without any requirement to obtain the
consent of the Secured Creditors of any other Series, arrange for
a Loan Note Supplement to be executed in accordance with Clause
6.4.1 Provided, however, that such Loan Note Supplement shall not
be executed unless the Security Trustee is of the opinion that the
execution of such Loan Note Supplement and the issue of the Loan
Notes of the related Series will not be materially prejudicial to
the rights, benefits and interests of the Secured Creditors of any
other Series and for this purpose the Security Trustee shall be
entitled to determine that it is not materially prejudicial to the
rights, benefits and interests of such Secured Creditors if it
receives written confirmation in accordance with Clause 6.4.3.
6.4.3 Each of the Loan Note Issuer and the Security Trustee shall be
entitled to assume that the execution of the Loan Note Supplement
and the issue of the Loan Notes of the related Series will not be
materially prejudicial to the rights, benefits and interests of
the Secured Creditors of any other Series and in particular will
not be materially prejudicial to the timing and distribution of
payments to such other Secured Creditors of such Series if it
receives written confirmation from:
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(xii) each relevant Rating Agency that the issue of Loan Notes
of the relevant Series will not result in such Rating
Agency reducing or withdrawing its then current rating on
any outstanding Associated Debt for any other Series; or
(xiii) an investment banking firm or commercial bank recognised
in the United Kingdom in the form of a Director's
Certificate to that effect PROVIDED, HOWEVER, that such
confirmation shall be required only if on the relevant
Closing Date there is one or more Series then in issue and
any of the outstanding Associated Debt of the Loan
Noteholders within such Series is not currently rated by a
Rating Agency.
Such written confirmation shall be conclusive evidence for the
purposes of Clause 6.4.2 that the rights, benefits and interests
of the Secured Creditors of any other Series have not been
materially prejudiced.
6.4.4 Each Secured Creditor, by its execution of a Loan Note Supplement,
or in the case of a Loan Noteholder, by the purchase of the
relevant Loan Notes subject to the relevant Loan Note Conditions,
consents and confirms that the security trust constituted for the
benefit of the relevant Secured Creditor under this Deed, any Loan
Note Supplement and any Supplemental Security Document may be
supplemented, amended and varied from time to time in accordance
with the terms of this Deed and any such additional Loan Note
Supplement and any such Supplemental Security Document.
7. LOAN NOTE ISSUER BANK ACCOUNTS
7.1 ADDITIONAL LOAN NOTE ISSUER ACCOUNTS
7.1.1 In addition to the accounts opened in respect of each Series
pursuant to the terms of the relevant Loan Note Supplement, the
Loan Note Issuer may, with the consent of the Security Trustee,
from time to time open further bank accounts (each an "ADDITIONAL
LOAN NOTE ISSUER ACCOUNT") (in its name or to be designated as
opened on trust for the Loan Note Issuer if opened for the benefit
of the Loan Note Issuer by the Security Trustee) at the Operating
Bank or at any other Qualified Institution as specified in any
Loan Note Supplement, PROVIDED, THAT each such Additional Loan
Note Issuer Account shall be charged to the Security Trustee on
trust for itself and the other Secured Creditors of the Series to
which such Additional Loan Note Issuer Account relates.
7.1.2 The Loan Note Issuer at all times shall maintain accurate records
reflecting each transaction in any Additional Loan Note Issuer
Account and in any ledger relating thereto.
7.2 POWERS OF INVESTMENT
Subject to the terms of the relevant Loan Note Supplement, the Loan Note
Issuer shall have no power of investment.
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7.3 APPLICATION OF MONIES IN ADDITIONAL LOAN NOTE ISSUER ACCOUNTS
Amounts deposited in Additional Loan Note Issuer Accounts shall be applied
in accordance with the provisions of any relevant Loan Note Supplement and
Clause 7.4.
7.4 PAYMENTS - CURRENCY OF ACCOUNT AND PAYMENT METHOD
7.4.1 Sterling is the currency of account and payment for each and every
sum at any time due from any Person hereunder, PROVIDED, HOWEVER
that:
(xiv) each payment in respect of costs shall be made in the
currency in which the same were incurred; and
(xv) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
7.4.2 On each date upon which this Deed or any Loan Note Supplement
requires an amount to be paid by or on behalf of the Receivables
Trustee to the Loan Note Issuer, the Receivables Trustee shall,
save as expressly provided otherwise herein, make the same
available to the Loan Note Issuer by payment in Sterling and in
immediately available funds to such account and bank in London as
the Loan Note Issuer shall have specified in writing for this
purpose no later than midday on the day that such amount becomes
payable.
8. ENFORCEMENT OF SECURITY
8.1 APPOINTMENT OF RECEIVER
8.1.1 Subject to Clause 8.1.2 below, at any time after all or part of
the Security in relation to any one or more Series of Loan Notes
issued by the Loan Note Issuer has become enforceable, the
Security Trustee may by writing appoint any person or persons to
be a Receiver of the Secured Property of any such Series, and may
remove any Receiver so appointed and appoint another in its place.
Section 109(1) of the Law of Property ▇▇▇ ▇▇▇▇ shall not apply in
respect of any such appointment.
8.1.2 Upon receipt of notice of a petition to a court of competent
jurisdiction for an administration order to be made on application
by a creditor or creditors of the Loan Note Issuer, the Security
Trustee shall use reasonable endeavours, subject to its being
practicable so to do, and provided it has been indemnified and/or
secured to its satisfaction, forthwith to appoint a Receiver or
Receivers (being, for the avoidance of doubt, an administrative
receiver or similar officer falling within the definition of
"ADMINISTRATIVE RECEIVER" under Section 29(2) of the Insolvency
Act 1986) of the whole of the Secured Property in relation to all
Series of Notes outstanding and issued by the Loan Note Issuer and
in relation to the floating charge created pursuant to Clause 5
subject to the immediately preceding sentence. The Security
Trustee shall only crystallise the floating charge and/or appoint
a receiver thereunder or enforce its rights under the Security
Trust Deed Jersey Security Interest if it has been instructed so
to do by the Note Trustee for each outstanding Series and has been
indemnified and/or secured for its costs of so doing. Any proceeds
of enforcement of the Security Trust Deed Jersey Security Interest
or the floating charge shall be distributed
- 21 -
amongst the Secured Creditors of the relevant Series pro rata in
the proportion which the aggregate Principal Amount Outstanding in
respect of each such Series bears to the Aggregate Principal
Amount Outstanding of all such Series (as at the date such monies
were received) in respect of which such monies were received.
8.1.3 For the purposes of each Loan Note Issuer Jersey Security
Interest, service by the Security Trustee of a notice upon the
Loan Note Issuer (the "JERSEY NOTICE OF EVENT OF DEFAULT")
specifying the Loan Note Event of Default in respect of the
particular Series complained of (which shall be an event of
default for the purposes of the Jersey Security Law and such Loan
Note Issuer Jersey Security Interest) and, if the default is
capable of remedy, requiring the Loan Note Issuer to remedy it,
shall constitute notice for the purposes of the Jersey Security
Law of an event of default in respect of such Loan Note Issuer
Jersey Security Interest so that the power of sale of the relevant
Loan Note Issuer Jersey Secured Property shall become exercisable
without the order of the Jersey court in accordance with Article 8
of the Jersey Security Law either:
(xvi) immediately upon the service of such notice if the default
is incapable of remedy; or
(xvii) 14 days after such service if the default is not remedied
within that period.
8.1.4 In respect of the Loan Note Issuer Jersey Secured Property, upon
the relevant Loan Note Issuer Jersey Security Interest having
become enforceable in accordance with Clause 8.1.3 and upon the
Security Trustee having determined or become bound to enforce the
same, the relevant Loan Note Issuer Jersey Security Interest shall
be enforced by the Security Trustee and any Receiver in accordance
with the provisions of the Jersey Security Law.
8.1.5 The appointment of any Receiver shall include a direction to the
Receiver in relation to those Series in respect of which the
specific Security relating to such service has not become
enforceable to continue all the existing contracts in relation to
such Series and carry on the existing business of the Loan Note
Issuer in relation to such Series.
8.2 DISCRETION OF SECURITY TRUSTEE
At any time after any, some or all of the Loan Notes pertaining to a
particular Series shall have become due and repayable in accordance with
the relevant Loan Note Conditions and shall not have been repaid
(including, without limitation, following a default in payment of
principal or interest thereunder), but subject to the provisions of Loan
Note Condition 13(d), the Security Trustee may at its discretion (but
without being under any obligation to do so) and without further notice,
recover judgment in its own name and as trustee of an express trust
against the Loan Note Issuer for the whole amount of principal and
interest remaining unpaid and take such other steps and/or institute such
proceedings as it may think fit against, or in relation to, the Issuer
and/or such steps as it may think fit to enforce the security created in
favour of the Security Trustee by, and contained in, this Deed and any
relevant Loan Note Supplement and to enforce the Loan Note Issuer's
- 22 -
obligations under this Deed and any relevant Loan Note Supplement
including, without limitation, to enforce repayment of the Loan Notes
together with accrued interest and any other moneys payable pursuant to
this Deed and any relevant Loan Note Supplement, provided that the
Security Trustee shall be bound by the terms of this Deed and the relevant
Loan Note Supplement in determining the priority in which any moneys
received by it shall be applied.
8.3 STANDARD OF PROOF
Should the Security Trustee take legal or other proceedings against the
Loan Note Issuer to enforce any of the provisions of the Loan Notes, or
any of them or any of the provisions of this Deed and any relevant Loan
Note Supplement, proof therein that, as regards any Loan Note, the Loan
Note Issuer has made default in paying any principal or interest due in
respect of such Loan Note shall (unless the contrary be proved) be
sufficient evidence that the Issuer has made the like default as regards
all other Loan Notes in respect of which the relevant payment is then due
and payable. The Security 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 Security Trustee, the Secured Creditors and the Loan
Noteholders allowed in any judicial proceedings relating to the Issuer,
its auditors or its property.
8.4 LOAN NOTE ENFORCEMENT NOTICE
8.4.1 The Security Trustee shall not be bound to take any such
proceedings or steps as are contemplated by any provision of this
Clause 8 or any other proceedings pursuant to or in connection
with this Deed or any relevant Loan Note Supplement, the Loan
Notes or any of them or to give any notice pursuant to Loan Note
Condition 9 unless directed or requested to do so by the Note
Trustee of a particular Series and then only if it shall have been
indemnified and/or secured to its satisfaction.
8.4.2 Subject to the Security Trustee being requested and/or directed by
the Note Trustee of a particular Series and subject also it having
been indemnified and/or secured to its satisfaction following the
occurrence of a Loan Note Event of Default, the Security Trustee
shall be required to demand all amounts of principal and/or
interest owing in respect of the Loan Notes to be paid immediately
and to take such steps as it shall think fit to enforce any
security it holds in relation to a particular Series, save to the
extent restricted in accordance with the second and third
sentences of Clause 8.1.2.
8.5 LEGAL PROCEEDINGS
Only the Security Trustee may enforce (i) the security created in favour
of the Security Trustee by, and contained in, this Deed and any relevant
Loan Note Supplement or (ii) the provisions of the Loan Notes or this Deed
and any relevant Loan Note Supplement and no Loan Noteholders shall be
entitled to proceed directly against the Loan Note Issuer to enforce its
rights under or in respect of the Loan Notes, this Deed or any relevant
Loan Note Supplement unless (i) the Security Trustee has become bound to
institute proceedings and has failed to do so within a reasonable time and
(ii) such failure is continuing. Notwithstanding any other provision
hereof, each Loan Noteholder shall have the rights accorded by Section 316
of the TIA.
- 23 -
9. PROVISIONS UPON ENFORCEMENT
9.1 POWERS OF A RECEIVER
If the Security Trustee appoints a Receiver or administrative receiver
pursuant to Clause 8, the following provisions (subject, in the case of
the Loan Note Issuer Jersey Secured Property, to the Jersey Security Law)
shall have effect in relation thereto:
9.1.1 such appointment may be made either before or after the Security
Trustee has taken possession of any Secured Property relating to
any Series;
9.1.2 such Receiver may be vested by the Security Trustee with such
powers and discretions as the Security Trustee has and may think
expedient and may, subject as provided in Clause 8.1, (i) sell or
concur in the sale of all or any of the Secured Property, or
assign or release all or any of the Secured Property, or (ii)
continue the business of the Loan Note Issuer as a going concern
with respect to the Secured Property, in each case without
restriction and on such terms and for such consideration (if any)
as he may think fit and may carry any such transaction into effect
by conveying, transferring and delivering in the name or on behalf
of the Loan Note Issuer or otherwise;
9.1.3 such Receiver shall in the exercise of his powers, authorities and
discretions conform to regulations from time to time made by the
Security Trustee;
9.1.4 the exclusion of any part of the Secured Property of any Series
from the appointment of the Receiver shall not preclude the
Security Trustee from subsequently extending his appointment (or
that of the Receiver replacing him) to that part;
9.1.5 the remuneration of the Receiver may be fixed by the Security
Trustee (and may be or include a commission calculated by
reference to the gross amount of all money received or otherwise),
but such remuneration shall be payable by the Issuer alone and
shall only be payable from such sums as are realised in respect of
those Series the Secured Property in respect of which are the
subject of the appointment of such Receiver;
9.1.6 the Security Trustee may from time to time and at any time require
any such Receiver to give security for the due performance of his
duties as Receiver and may fix the nature and amount of the
security to be so given but the Security Trustee shall not be
bound in any case to require any such security;
9.1.7 save insofar as otherwise directed by the Security Trustee, all
moneys in respect of any Series from time to time received by such
Receiver shall be paid over forthwith to the Security Trustee to
be held by it in accordance with the provisions of Clauses 7.1 to
7.3 as supplemented by the relevant Loan Note Supplement;
9.1.8 every such Receiver shall be the agent of the Loan Note Issuer for
all purposes and the Loan Note Issuer alone shall be responsible
for his acts, defaults and misconduct, and the Security Trustee
and the Secured Creditors of any Series shall not incur any
liability therefor or by reason of its or their making or
- 24 -
consenting to the appointment of a person as a Receiver under this
Deed and any relevant Loan Note Supplement;
9.1.9 neither the Security Trustee nor any of the Secured Creditors of
any Series shall be in any way responsible for any misconduct or
negligence on the part of any such Receiver;
9.1.10 the Security Trustee may (subject to Section 45 of the Insolvency
Act 1986) remove the Receiver whether or not appointing another in
his place and the Security Trustee may also appoint another
receiver if the Receiver resigns;
9.1.11 the Receiver shall have, mutatis mutandis, the powers, authorities
and discretions conferred upon the Security Trustee under this
Deed and any relevant Loan Note Supplement, subject to such
restrictions as the Security Trustee may think fit and subject in
the case of the Issuer Jersey Secured Property to the Jersey
Security Law. Without prejudice to the generality of the
foregoing, any Receiver appointed to the whole or substantially
the whole of the Charged Assets shall have the powers referred to
in Schedule 1 of the Insolvency ▇▇▇ ▇▇▇▇;
9.1.12 save so far as otherwise directed by the Security Trustee and as
otherwise required by law all moneys from time to time received by
such Receiver shall be paid over to the Security Trustee to be
applied by it in the manner set out in the relevant Loan Note
Supplement;
9.1.13 the Security Trustee may pay over to such Receiver any moneys
constituting part of the Security to the intent that the same may
be applied for the purposes of this Deed by such Receiver and the
Security Trustee may from time to time determine what funds the
Receiver shall be at liberty to keep in hand with a view to the
performance of his duties as such Receiver;
9.1.14 Sections 109(6) and (8) of the Law of Property ▇▇▇ ▇▇▇▇ (relating
to application of moneys received by a receiver) shall not apply
in relation to a Receiver appointed under Clause 8; and
9.1.15 none of the restrictions imposed by the LPA in relation to the
appointment of receivers or as to the giving of notice or
otherwise shall apply in relation to a Receiver appointed under
Clause 8.
9.2 POWER OF SALE
Sections 93 and 103 of the Law of Property ▇▇▇ ▇▇▇▇ shall not apply in
relation to any Security created under this Deed or any relevant Loan Note
Supplement, nor in relation to a Receiver appointed under Clause 8.
Notwithstanding any other provision of this Deed, the Loan Notes of any
Series shall be deemed for the purposes of Section 101 of the Law of
Property ▇▇▇ ▇▇▇▇ to have become due within the meaning of that Section
and the power of sale and other powers conferred on mortgagees by the Law
of Property ▇▇▇ ▇▇▇▇ as varied or extended by this Deed and any relevant
Loan Note Supplement including the power to appoint a Receiver shall arise
immediately on execution of the relevant Loan Note Supplement.
- 25 -
9.3 PROCEEDS OF ENFORCEMENT HELD ON TRUST
Subject in the case of the Loan Note Issuer Jersey Secured Property to the
Jersey Security Law, for each Series, all moneys received by the Security
Trustee in respect of the Security or the Secured Property relating to
such Series shall be held by the Security Trustee upon trust to apply the
same as provided in the relevant Loan Note Supplement.
9.4 FURTHER ASSURANCE
For each Series, the Loan Note Issuer shall execute and do all such
assurances, acts and things as the Security Trustee or any Receiver may
require (including, without limitation, the giving of notices of
assignment and the effecting of filings or registrations in any
jurisdiction) for perfecting or protecting the Security and from time to
time and at any time after the Security or any part thereof has become
enforceable shall execute and do all such assurances, acts and things as
the Security Trustee or any Receiver may require for facilitating the
realisation of, or enforcement of rights in respect of, all or any of the
Secured Property relating to such Series and the exercise of all powers,
authorities and discretions vested in the Security Trustee or in any
Receiver of all or any of the Secured Property relating to such Series.
9.5 SECURITY TRUSTEE'S POWER TO BORROW
For each Series, subject in the case of the Loan Note Issuer Jersey
Secured Property to the Jersey Security Law, the Security Trustee may
raise and borrow money on the security of all or any of the Secured
Property relating to such Series for the purpose of defraying any
Liabilities paid or incurred by it in relation to this Deed and any
relevant Loan Note Supplement relating to such Series or in the exercise
of any of the powers contained in this Deed and any relevant Loan Note
Supplement relating to such Series. The Security Trustee may raise and
borrow such money at such rate of interest and generally on such terms and
conditions as it shall think fit and may secure the repayment of the money
so raised or borrowed with interest on the same by mortgaging or otherwise
charging all or any of the Secured Property relating to such Series in
such manner and form as the Security Trustee may think fit (which mortgage
or other charge may rank in priority to, pari passu with or after the
Security) and for such purposes may execute and do all such assurances and
things as it may think fit and no person lending any such money shall be
concerned to enquire as to the propriety or purpose of the exercise of any
power of the Security Trustee or to see to the application of any money so
raised or borrowed.
9.6 EXTENT OF SECURITY TRUSTEE'S LIABILITY
For each Series, the Security Trustee shall not, nor shall any Receiver
appointed as aforesaid nor any attorney, agent or delegate of the Security
Trustee by reason of taking possession of or having assigned to it all or
any of the Secured Property relating to such Series or any other reason
whatsoever and whether as mortgagee in possession or on any other basis
whatsoever be liable to account for anything except actual receipts or be
liable for any loss or damage arising from realisation of, or enforcement
of rights in respect of, all or any of the Secured Property relating to
such Series or any other property, assets, rights or undertakings of
whatsoever nature (including but not limited to any other Secured
Property) whether or not owned by the Loan Note Issuer or any other person
or in which the Loan Note Issuer or such other person has an interest,
from any act, default or omission in relation to all or any of the Secured
Property relating to such
- 26 -
Series or any other property, assets, rights or undertakings of whatsoever
nature (including but not limited to any other Secured Property) whether
or not owned by the Loan Note Issuer or any other person or in which the
Loan Note Issuer or such other person has an interest, or from any
exercise or non-exercise by it of any power, authority or discretion
conferred upon it in relation to all or any of the Secured Property
relating to such Series or any other property, assets, rights or
undertakings of whatsoever nature (including but not limited to any other
Secured Property) whether or not owned by the Loan Note Issuer or any
other person or in which the Loan Note Issuer or such other person has an
interest, by or pursuant to this Deed as supplemented by the relevant Loan
Note Supplement relating to such Series or otherwise.
9.7 POWERS IN ADDITION TO STATUTE
For each Series, the powers conferred by this Deed in relation to all or
any of the Secured Property in respect of such Series on the Security
Trustee or on any Receiver of all or any of the Secured Property shall (to
the extent they relate to property situate outside Jersey) be in addition
to and not in substitution for the powers conferred on mortgagees or
receivers under the Law of Property ▇▇▇ ▇▇▇▇ and the Insolvency ▇▇▇ ▇▇▇▇
and where there is any ambiguity or conflict between the powers contained
in such Act and those conferred by this Deed and any relevant Loan Note
Supplement the terms of this Deed and any relevant Loan Note Supplement
shall prevail. The powers conferred by this Deed on the Security Trustee
or on any Receiver of all or any of the Secured Property in relation to
all or any of the Loan Note Issuer Jersey Secured Property shall be
subject to the Jersey Security Law.
9.8 DUTY OF ENQUIRY
For each Series, no person dealing with the Security Trustee or with any
Receiver of all or any of the Secured Property in respect of such Series
appointed by the Security Trustee shall be concerned to enquire whether
any event has happened upon which any of the powers, authorities and
discretions conferred by or pursuant to this Deed and any relevant Loan
Note Supplement in relation to such Secured Property in respect of such
Series or any other Secured Property or any other property, assets or
undertaking are or may be exercisable by the Security Trustee or by any
such Receiver or otherwise as to the propriety or regularity of acts
purporting or intended to be in exercise of any such powers, authorities
or discretions and all the protections to purchasers contained in Sections
104 and 107 of the Law of Property ▇▇▇ ▇▇▇▇ shall apply to any person
purchasing from or dealing with the Security Trustee or any such Receiver
in like manner as if the statutory powers of sale and of appointing a
Receiver in relation to such Secured Property in respect of such Series or
any other Secured Property or any other property, assets or undertaking
had not been varied or extended by this Deed and any relevant Loan Note
Supplement.
9.9 RELEASE OF SECURITY
Upon proof being given to the satisfaction of the Security Trustee that
the Loan Note Issuer is under no further actual or contingent liability,
present or future, under this Deed and any relevant Loan Note Supplement
in respect of any Series, the Security Trustee shall at the written
request and cost of the Loan Note Issuer execute and do all such deeds,
acts and things as may be necessary to reassign or, as the case may be,
redeliver
- 27 -
and release the Secured Property in respect of such Series from the
Security and the trust contained in this Deed as supplemented by the
relevant Loan Note Supplement.
9.10 CONTINUING SECURITY
The Security constituted by this Deed as supplemented by the relevant Loan
Note Supplement is continuing security for the performance of the Secured
Obligations notwithstanding any intermediate payment in respect of the
Secured Obligations and shall be in addition to any other security, rights
or remedies which the Security Trustee may have.
9.11 FURTHER ASSURANCE
The Loan Note Issuer hereby further covenants with and undertakes to the
Security Trustee that it will from time to time upon demand:
(iv) execute, at its own cost, any document or do any act or thing
which the Security Trustee or the Receiver may specify with a view
to:
(b) perfecting or improving any charge or security created or
intended to be created by this Deed, including, without
limitation, such additional or corroborative security
document and in such forms as the Security Trustee or the
Receiver may specify; or
(c) after service of a Loan Note Enforcement Notice, facilitating
the exercise, or the proposed exercise, of any of their
powers; and
(v) give or join in giving or procuring the giving of such notices and
intimations to such persons, and all in such form, as the Security
Trustee or the Receiver may require at the cost of the Loan Note
Issuer.
9.12 POWER OF ATTORNEY
For the purpose of securing the interests of the Security Trustee and the
other Secured Creditors whether under or pursuant to this Deed or any
Series Related Document or in relation to the Charged Assets and the
performance of its obligations to the Security Trustee and the other
Secured Creditors, whether under or pursuant to this Deed or any Series
Related Document or in relation to the Charged Assets, the Loan Note
Issuer irrevocably for value and by way of security hereby severally
appoints the Security Trustee and every Receiver of the Charged Assets or
any part thereof to be its attorney (with full power to appoint
substitutes or to sub-delegate, including power to authorise the person so
appointed to make further appointments) on behalf of the Loan Note Issuer
and in its name or otherwise, to execute any document or do any assurance,
act or thing which the Loan Note Issuer ought to execute or do pursuant to
this Deed and generally on its behalf and in its name or otherwise, to
execute any document or do any assurance, act or thing which the Security
Trustee or such Receiver (or such substitute or delegate) may, in its or
his absolute discretion, properly consider appropriate in connection with
the exercise or enforcement of any of the rights, powers, authorities or
discretions conferred on the Security Trustee or the Receiver under or
pursuant to this Deed or any Series Related Document. The Loan Note Issuer
hereby ratifies and confirms and agrees to ratify and confirm whatever any
such attorney does or purports to do in the exercise or
- 28 -
purported exercise of all or any of the powers, authorities and
discretions referred to in this Clause 9.12.
10. THE SECURITY TRUSTEE
10.1 DUTIES OF THE SECURITY TRUSTEE
10.1.1 The Security Trustee agrees to perform such duties and only such
duties as are specifically set forth in this Deed as supplemented
by the relevant Loan Note Supplements to the extent required or
permitted under and in compliance with applicable law and
regulations.
10.1.2 The Security Trustee shall consent to the operation of the Loan
Note Issuer Accounts for each Series by the Loan Note Issuer in
accordance with the provisions of this Deed and any Loan Note
Supplement.
10.1.3 Subject to Clause 8.1.4, after any Security has become
enforceable, the Security Trustee shall (provided it is
indemnified and/or secured to its satisfaction), if it has actual
knowledge of the same, act promptly to exercise its rights under
any bank mandate relating to a Loan Note Issuer Account in respect
of which it is a beneficiary of a trust declared over such account
to prevent monies representing Secured Property being paid from
such Loan Note Issuer Account to a bank account which is not a
Loan Note Issuer Account and which was overdrawn at the close of
business on the preceding Business Day (unless the Security
Trustee shall have received evidence satisfactory to it that such
overdraft has been satisfied). The Security Trustee shall cease to
exercise such rights at such time as the relevant bank account
ceases to be overdrawn.
10.1.4 The Security Trustee shall maintain proper books of account in
respect of its duties as Security Trustee of the Secured Property
in respect of each Series and shall maintain records of all assets
held by it and all payments made by it in such capacity.
10.1.5 The Security Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith
in accordance with the direction of any Secured Creditor in
respect of a Series relating to the time, method and place of
conducting any proceeding for any remedy available to the Security
Trustee, or exercising any trust, discretion or power conferred
upon the Security Trustee in relation to such Secured Creditor,
under this Deed or any Series Document.
10.1.6 Notwithstanding any other provision of this Deed or of any
relevant Loan Note Supplement, the Security Trustee shall not be
required to expend or risk its own funds or otherwise incur
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
it believes that the repayment of such funds or adequate indemnity
against such risk or liability is not assured to it to its
satisfaction, and none of the provisions contained in this Deed or
any Series Document shall in any event require the Security
Trustee to perform, or be responsible for the manner of the
performance of, any of the obligations of the Loan Note Issuer
under this Deed
- 29 -
or any Loan Note Supplement, the Trust Cash Manager or any
Co-Trust Cash Manager under the Receivables Trust Deed and Trust
Cash Management Agreement or the Servicer or any Co-Servicer under
the Beneficiaries Servicing Agreement.
10.1.7 In relation to its obligations set forth in Clauses 8 and 9, the
Security Trustee shall not be obliged to act accordingly unless it
has actual knowledge of the occurrence of a Loan Note Event of
Default provided that the Security Trustee shall not act in
accordance with such obligations if to do so is in breach of any
of its obligations in law or under the Series Documents.
10.2 SUPPLEMENTAL TO ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Subject, in the case of the Loan Note Issuer Jersey Secured Property, to
the Jersey Security Law, the Security Trustee shall have all powers
conferred upon trustees by the Trustee ▇▇▇ ▇▇▇▇ and by way of supplement
to the Trustee ▇▇▇ ▇▇▇▇, it is expressly declared as follows (which
provisions shall, except as expressly provided in this Clause 10, be in
lieu of the provisions contained in section 315(a) of the TIA):
10.2.1 ADVICE: The Security Trustee may in relation to this Deed and any
relevant Loan Note Supplement act on the advice or opinion of or
any information obtained from any lawyer, valuer, accountant,
banker, broker, credit-rating agency or other expert whether
obtained by the Loan Note Issuer, the Security Trustee or
otherwise and shall not in the absence of negligence or wilful
misconduct or fraud on the part of the Security Trustee, be
responsible for any loss occasioned by so acting.
10.2.2 TRANSMISSION OF ADVICE: Any such advice, opinion or information
may be sent or obtained by letter, telex, facsimile transmission
or electronic mail and in the absence of negligence or wilful
misconduct or fraud on the part of the Security Trustee, the
Security Trustee shall not be liable for acting on any advice,
opinion or information purporting to be conveyed by any such
letter, telex, facsimile transmission or electronic mail although
the same shall contain some error or shall not be authentic.
10.2.3 CERTIFICATE OF DIRECTORS: the Security Trustee may call for and
shall be at liberty to accept a certificate signed by two
directors of the Loan Note Issuer or other person duly authorised
on its behalf as to any fact or matter prima facie within the
knowledge of the Loan Note Issuer as sufficient evidence thereof
and a like certificate to the effect that any particular dealing,
transaction or step or thing is, in the opinion of the person so
certifying, expedient as sufficient evidence of its expediency and
the Security 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 its failing so to do.
10.2.4 DEPOSIT OF CERTAIN DOCUMENTS: The Security Trustee shall be at
liberty to hold or to place this Deed and any relevant Loan Note
Supplement, any other documents relating to this Deed and any
relevant Loan Note Supplement in any part of the world with any
banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm
- 30 -
of lawyers considered by the Security Trustee to be of good repute
and the Security Trustee shall not be responsible for or required
to insure against any loss incurred in connection with any such
deposit and may pay all sums required to be paid on account of or
in respect of any such deposit.
10.2.5 PAYMENT FOR AND DELIVERY OF THE LOAN NOTES: The Security Trustee
shall not be responsible for the application of the proceeds of
the issue of any of the Loan Notes by the Loan Note Issuer.
10.2.6 LOAN NOTE EVENTS OF DEFAULT: Except to the extent required
pursuant to section 315(b) of the TIA, the Security Trustee shall
not be bound to give notice to any person of the execution of this
Deed and any relevant Loan Note Supplement or any of the
Transaction Documents or any transaction contemplated hereby or
thereby or to take any steps to ascertain whether any Loan Note
Event of Default or any Potential Loan Note Event of Default has
happened and, until it shall have actual knowledge or express
written notice to the contrary, the Security Trustee shall be
entitled to assume that no Loan Note Event of Default or such
condition, event or act has happened and that the Loan Note Issuer
and each other party to any Transaction Document is observing and
performing all the obligations on its part contained in the Loan
Notes and under this Deed and any relevant Loan Note Supplement
and/or any Transaction Document to which it is a party.
10.2.7 DISCRETION OF THE SECURITY TRUSTEE: Save as expressly otherwise
provided in this Deed and any relevant Loan Note Supplement, the
Loan Note Conditions, the Security Trustee shall have absolute and
uncontrolled discretion as to the exercise of the trusts, powers,
authorities and discretions vested in the Security Trustee by this
Deed and any relevant Loan Note Supplement, and the Loan Note
Conditions (the exercise of which as between the Security Trustee
and the Secured Creditors and other parties thereto shall be
conclusive and binding on the Secured Creditors and other parties
thereto) and the Security Trustee shall not be responsible for any
Liability that may result from the exercise or failure to exercise
any such trust, power, authority and discretion. but whenever the
Security Trustee is under the provisions of this Deed and any
relevant Loan Note Supplement, and/or the Loan Note Conditions
bound to act at the request or direction of the Secured Creditors,
or any of them, or any other relevant party, the Security Trustee
shall nevertheless not be so bound unless first indemnified and/or
secured to its satisfaction against all actions, proceedings,
claims and demands to which it may render itself liable and all
costs, charges, damages, expenses and liabilities which it may
incur by so doing.
10.2.8 RESOLUTION OF THE LOAN NOTEHOLDERS: The Security Trustee shall not
be liable for acting upon any resolution purporting to be a
Written Resolution or to have been passed at any meeting of the
Loan Noteholders 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 that for any reason the resolution
was not valid or binding upon the Loan Noteholders.
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10.2.9 SECURITY TRUSTEE'S CONSENT: Any consent or approval given by the
Security Trustee for the purpose of this Deed and any relevant
Loan Note Supplement, may be given on such terms and subject to
such conditions (if any) as the Security Trustee thinks fit and
notwithstanding anything to the contrary contained in this Deed
and any relevant Loan Note Supplement may be given
retrospectively.
10.2.10 CONFIDENTIALITY: The Security Trustee shall not (unless and to the
extent ordered so to do by a court of competent jurisdiction) be
required to disclose to any Secured Creditor or any other person
any confidential financial, price sensitive or other information
made available to the Security Trustee by the Loan Note Issuer or
any other person in connection with the trusts created under this
Deed and any relevant Loan Note Supplement and no Secured Creditor
or other person shall be entitled to take any action to obtain
from the Security Trustee any such information.
10.2.11 CURRENCY CONVERSION: Where it is necessary or desirable for any
purpose in connection with this Deed and any relevant Loan Note
Supplement to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed and any relevant
Loan Note Supplement or required by law) be converted at such rate
or rates, in accordance with such method and as at such date for
the determination of such rate of exchange, as may be specified by
the Security Trustee in its absolute discretion and any rate,
method and date so agreed shall be binding on the Loan Note Issuer
and the Secured Creditors.
10.2.12 DEFAULT IN PERFORMANCE: The Security Trustee may certify in
accordance with the provisions of Loan Note Condition 9(b) whether
or not a default by the Loan Note Issuer in the performance or
observance of any of its obligations pursuant to that Loan Note
Condition is in its opinion materially prejudicial to the
interests of the Loan Noteholders and any such certificate shall
be conclusive and binding upon the Loan Note Issuer and the Loan
Noteholders.
10.2.13 ASSUMPTION OF DUE PERFORMANCE: The Security Trustee shall not be
bound to take any steps to ascertain whether any event, condition
or act, the happening of which would cause a right or remedy to
become exercisable by the Security Trustee under this Deed and any
relevant Loan Note Supplement has happened or to monitor or
supervise the observance and performance by the Loan Note Issuer
or any of the other parties to any of the Transaction Documents of
their respective obligations thereunder and, until it shall have
actual knowledge to the contrary, the Security Trustee shall be
entitled to assume that no such event, condition or act has
happened and that the Loan Note Issuer and each of the other
parties thereto are observing and performing all their respective
obligations thereunder.
10.2.14 RELIANCE ON DOCUMENTS: Save as explicitly provided in this Deed
and any relevant Loan Note Supplement or in the relevant
Transaction Document, the Security Trustee shall not be
responsible for any of the following, nor for investigating any
matter which is the subject of the following:
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(i) recitals, statements, warranties or representations of any
party contained in any Transaction Document or security
created pursuant to the terms thereof or other document
entered into in connection therewith and shall assume the
accuracy and correctness thereof and the Security Trustee
may accept without enquiry, requisition or objection such
title as the Loan Note Issuer may have to the security
constituted by this Deed or any relevant Loan Note
Supplement or any part thereof; or
(ii) the execution, legality, effectiveness, adequacy,
genuineness, validity or enforceability or admissibility
in evidence of any such agreement or other document or
security thereby constituted.
Notwithstanding the generality of the foregoing, each Secured
Creditor shall be solely responsible for making its own
independent appraisal of and investigation into the financial
condition, creditworthiness, condition, affairs, status and nature
of the Loan Note Issuer and the Security Trustee shall not at any
time have any responsibility for the same and each Secured
Creditor shall not rely on the Security Trustee in respect
thereof.
10.2.15 NO LIABILITY FOR EMPLOYEES: The Security Trustee shall not be
liable for any error of judgment made in good faith by any officer
or employee of the Security Trustee assigned by the Security
Trustee to administer its corporate trust matters unless it shall
be proved that the Security Trustee was negligent in ascertaining
the pertinent facts.
10.2.16 DETERMINATIONS OF THE SECURITY TRUSTEE CONCLUSIVE: The Security
Trustee as between itself and the Secured Creditors shall have
full power to determine all questions and doubts arising in
relation to any of the provisions of this Deed and any relevant
Loan Note Supplement or any security constituted in connection
therewith, and every such determination, whether made upon a
question actually raised or implied in the acts or proceedings of
the Security Trustee, shall be conclusive and shall bind the Loan
Note Issuer and the Secured Creditors.
10.2.17 DETERMINATION OF DEFAULT IN PERFORMANCE: The Security Trustee may
determine in its sole discretion whether or not a default in the
performance by the Loan Note Issuer of any obligation under the
provisions of this Deed and any relevant Loan Note Supplement or
contained in the Loan Notes or of the Loan Note Issuer or any
other party to any other party to any of the other Transaction
Documents is capable of remedy and, if the Security Trustee shall
certify that any such default is, in its opinion, not capable of
remedy, such certificate shall be conclusive and binding upon the
Loan Note Issuer and the Secured Creditors.
10.2.18 RESPONSIBILITY: the Security Trustee shall not be responsible for
the execution, legality, adequacy, enforceability, genuineness,
validity, effectiveness or suitability of any of the Transaction
Documents or any security constituted in connection therewith or
other documents entered into in connection therewith or any other
document or any obligation or rights created or purported to be
created thereby or pursuant thereto or any security or the
priority thereof
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constituted or purported to be constituted thereby or pursuant
thereto, nor shall it be responsible or liable to any person
because of any invalidity of any provision of such documents or
the unenforceability thereof, whether arising from statute, law or
decision of any court and (without prejudice to the generality of
the foregoing) the Security Trustee shall not have any
responsibility for or have any duty to make any investigation in
respect of or in any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of the
Loan Note Issuer or any other person or entity who has at
any time provided any security or support whether by way
of guarantee, charge or otherwise in respect of any
advance made to the Loan Note Issuer;
(i) the execution, legality, validity, adequacy, admissibility
in evidence or enforceability of any mortgage, charge or
any other document entered into in connection therewith;
(ii) the title, ownership, value, sufficiency or existence of
the Loan Notes and any security given with respect
thereto;
(iii) the registration, filing, protection or perfection of any
assignment or security interest relating to the trusts
constituted hereby or the priority of the security created
by this Deed or by any relevant Loan Note Supplement;
(iv) 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 herewith;
(v) 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 the Transaction Documents
and/or the security contemplated in connection therewith
and/or any other document;
(vi) any accounts, books, records or files maintained by the
Loan Note Issuer or any other person in respect of the
Loan Notes, the Transaction Documents or otherwise;
(vii) obtaining insurance for any of the security constituted by
this Deed and any relevant Loan Note Supplement or any
deeds or documents of title or other evidence in respect
thereof and shall not be responsible for any loss, expense
or liability which may be suffered as a result of the lack
of or inadequacy of any such insurance;
(viii) any deficiency in amounts payable to Secured Creditors by
virtue of the Security Trustee being liable to tax or
obliged to deduct tax in respect of sums received, held or
paid out by it under this Deed or any Loan Note
Supplement;
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(ix) the registration, filing, protection or perfection of any
mortgage or charge or the priority of the security created
thereby;
(x) the title of the Loan Note Issuer to any mortgage or
charge;
(xi) exercising any rights or powers which are assigned to it
by any party to the Transaction Documents, including,
without limitation, any servicing, administration and
management functions in relation to the Receivables and
the Designated Accounts, and shall not be liable to any
person for the exercise or non-exercise of any such rights
and powers;
(xii) notwithstanding that the Security Trustee has the right to
receive certain information and to inspect certain
documents under the terms of the Transaction Documents,
the Security Trustee shall be under no obligation to
review such information or to carry out any such
inspections, and shall not be liable to any person for so
reviewing or not reviewing or inspecting or not
inspecting, as the case may be;
(xiii) ascertaining whether a default has occurred under the
terms of any of the Transaction Documents and nor is the
Security Trustee responsible for taking any action in
connection with any such default or alleged default;
(xiv) investigating whether any statement made by any party to
any of the Transaction Documents is correct at the time
when such statement is made, or for ascertaining whether
the effect of any such statement being incorrect would
have a Material Adverse Effect on the interests of any
party;
10.2.19 EXCLUSION OF LIABILITY: The Security Trustee shall not be liable
or responsible for any loss, cost, damages, expenses or
inconvenience which may result from anything done or omitted to be
done by it in accordance with the provisions of this Deed and any
relevant Loan Note Supplement or any security constituted pursuant
hereto or thereto or any other document or as a consequence of or
in connection with it being held or treated as, or being deemed to
be, a creditor, for the purposes of the Consumer Credit ▇▇▇ ▇▇▇▇,
in respect of any of the Receivables.
10.2.20 ILLEGALITY: notwithstanding anything else contained in this Deed
and any relevant Loan Note Supplement or the other Transaction
Documents, the Security Trustee may refrain from doing anything
which would, or which in its opinion might, be contrary to any law
of any jurisdiction or any directive or regulation of any agency
of any state 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.
10.2.21 CERTIFICATES OF OTHER PARTIES TO THE DOCUMENTS: The Security
Trustee shall be entitled to call for and to rely upon a
certificate or any letter of confirmation or explanation
reasonably believed by it to be genuine, of the Note Trustee, the
Agent Bank or any Paying Agent, the Rating Agencies or any other
credit-rating
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agency or any party to any other Transaction Document in respect
of every matter and circumstance for which a certificate is
expressly provided for under this Deed and any relevant Loan Note
Supplement or in respect of the rating of the Loan Notes and to
call for and rely upon a certificate of the Loan Note Issuer, the
Note Trustee or any party to any other Transaction Document
reasonably believed by it to be genuine as to any other fact or
matter prima facie within the knowledge of the Loan Note Issuer or
the Note Trustee as sufficient evidence thereof and the Security
Trustee shall not be bound in any such case to call for further
evidence or be responsible for any loss, liability, costs,
damages, expenses or inconvenience that may be occasioned by its
failing so to do.
10.2.22 CONSEQUENCE OF MODIFICATIONS: In connection with any proposed
modification, waiver, authorisation or determination permitted by
the terms of this Deed and any relevant Loan Note Supplement, the
Security Trustee shall not have regard to the consequences thereof
for individual Secured Creditors resulting from their being for
any purpose domiciled or resident in, or otherwise connected with,
or subject to, the jurisdiction of any particular territory.
10.2.23 RESPONSIBILITY FOR THE RATING OF THE LOAN NOTES: The Security
Trustee shall have no responsibility for the maintenance of any
rating of the Loan Notes by the Rating Agencies or any other
credit-rating agency or any other person.
10.2.24 RESPONSIBILITY FOR REPORTS ETC.: the Trustee has no responsibility
to verify or monitor the contents of, or (if applicable) to check
any calculations contained in, any reports, information,
documents, Officers' Certificate and Opinions of Counsel delivered
to the Trustee in accordance with Clauses 14.1.18, 14.1.19 and
14.2 and is under no obligation to inform Secured Creditors of the
contents of any such reports, information, documents, Officers'
Certificate and Opinions of Counsel, other than allowing Secured
Creditors upon reasonable notice, to inspect such reports,
information, documents, Officers' Certificate and Opinions of
Counsel;
10.2.25 NO LIABILITY AS A RESULT OF THE DELIVERY OF A CERTIFICATE: The
Security Trustee shall have no liability whatsoever for any loss,
cost, damages or expenses directly or indirectly suffered or
incurred by the Loan Note Issuer, any Secured Creditor or any
other person as a result of the delivery by the Security Trustee
of a certificate, or the omission by it to deliver a certificate,
to the Loan Note Issuer as to material prejudice pursuant to Loan
Note Condition 9(b), on the basis of an opinion formed by it in
good faith.
10.2.26 NO DUTY TO SUPERVISE: The Security Trustee shall be under no
obligation to monitor or supervise the functions of any other
person under any Transaction Document or any security constituted
pursuant thereto and shall be entitled, in the absence of actual
knowledge by the persons administering this trust of a breach of
duty or obligation, to assume that such other person is properly
performing its obligations in accordance with each Transaction
Document or any security constituted pursuant thereto.
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10.2.27 MATERIAL PREJUDICE: The Security Trustee shall be entitled to
assume, for the purposes of exercising any power, trust,
authority, duty or discretion under or in relation to this Deed
and any relevant Loan Note Supplement or any security constituted
pursuant hereto or thereto that such exercise will not be
materially prejudicial to the interests of the Secured Creditors
if the Rating Agencies have confirmed that the then current rating
of the Loan Notes would not be adversely affected by such
exercise.
10.2.28 REPORTS BY SECURITY TRUSTEE TO SECURED CREDITORS: If required by
Section 313(a) of the TIA, within 60 days after the required date
in any year, commencing on the anniversary of the date of this
Deed, the Security Trustee shall deliver to each Loan Noteholder a
brief report dated as of such date that may be required by the TIA
that complies with Section 313(a) of the TIA. The Security Trustee
shall also comply with Section 313(b), (c) and (d) of the TIA.
Reports delivered pursuant to this Clause 10.2.29 shall be sent as
provided in Clause 24.
10.2.29 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE LOAN NOTE ISSUER:
The Security Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of
the TIA. A Security Trustee who has resigned or been removed shall
be subject to Section 311(a) of the TIA to the extent indicated
therein. The provisions of Section 311 of the TIA shall apply to
the Loan Note Issuer as the obligor of the Loan Notes.
10.2.30 DUTIES OF THE SECURITY TRUSTEE: Notwithstanding any additional
duties imposed on the Security Trustee under the Trustee ▇▇▇ ▇▇▇▇
or otherwise, if a Loan Note Event of Default has occurred and is
continuing, the Security Trustee shall exercise the rights and
powers and use the same degree of care and skill in their exercise
as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
10.2.31 ACTING IN GOOD FAITH: the Security Trustee shall not be liable for
any action taken, suffered or omitted by it in good faith and
believed by it to be authorised or within the discretion or rights
or powers conferred upon it by this Deed or any Series Document;
10.2.32 NO EXAMINATION: the Security Trustee shall not be required to make
any initial or periodic examination of any documents or records
related to the Designated Accounts in respect of the Securitised
Portfolio or the Receivables in respect of such Designated
Accounts for the purpose of establishing the presence or absence
of defects, the compliance by Transferors or any Additional
Transferor with its representations and warranties or for any
other purpose;
10.2.33 LEGAL OPINIONS: the Security Trustee shall not be responsible for
failing to request, require or receive any legal opinion relating
to any Loan Note Supplement or for checking or commenting upon the
content of any legal opinion;
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10.2.34 WRITTEN COMMUNICATIONS: the Security Trustee will not be
responsible for having acted in good faith on a written
communication received by it from any Person and believed by it to
be genuine whether or not the same is later proved not to have
been issued with due authority or to be authentic;
10.2.35 FEES, COMMISSIONS, PROFITS ETC.: the Security Trustee shall not be
liable to account for any fees, commissions, profits or
remuneration of any kind it may receive if it assumes any role in
relation to the Transferors, any Additional Transferor, the Loan
Note Issuer and any related companies or any securities or debts
issued by or outstanding of them and the Security Trustee may
acquire and dispose of securities issued by any of them without
being liable to account as aforesaid other than for the wilful
misconduct or gross negligence of the Security Trustee, its
employees or agents in connection with such acquisition or
disposal;
10.2.36 LOAN NOTEHOLDERS AND OTHER SECURED CREDITORS: unless specified
otherwise in a Loan Note Supplement, the Security Trustee shall
have regard only to the interests of the Loan Noteholders in
respect of any Series and not to the interests of any other
Secured Creditor in respect of any Series and shall have no duties
to any Secured Creditor other than the Loan Noteholders other than
to pay to them any monies it holds on trust for them in respect of
any Series;
10.2.37 LOAN NOTEHOLDERS AS A CLASS: the Security Trustee shall have
regard to the interest of the Loan Noteholders in respect of any
Series as a Class and not to their individual interests and save
that if there is in the opinion of the Security Trustee a conflict
between the interests of Loan Noteholders in respect of any Series
it shall have regard only to the interests of the Class ranking
most senior in such Series and shall not be liable to other Loan
Noteholders in such Series for doing so;
10.2.38 CALCULATIONS: the Security Trustee shall not be responsible for
checking any calculations or otherwise verifying any information
received by it in relation to the Receivables Trust;
10.2.39 NOTICE OF EXECUTION: except to the extent required pursuant to
section 315(b) of the TIA, the Security Trustee shall not be bound
to give notice to any person of the execution of this Deed or any
of the Transaction Documents or any transaction contemplated
hereby or thereby or to take any steps to ascertain whether any
Loan Note Event of Default has happened and, until it shall have
actual knowledge or express written notice to the contrary, the
Security Trustee shall be entitled to assume that no Loan Note
Event of Default or such condition, event or act has happened and
that the Loan Note Issuer and each other party to any Transaction
Document is observing and performing all the obligations on its
part contained in the Loan Notes and under this Deed and/or any
Transaction Document to which it is a party;
10.2.40 ABSOLUTE DISCRETION: save as expressly otherwise provided in this
Deed, the Loan Note Conditions or the Series Related Documents,
the Security Trustee shall have absolute and uncontrolled
discretion as to the exercise of the trusts,
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powers, authorities and discretions vested in the Security Trustee
by this Deed, the Loan Note Conditions and the Series Related
Documents (the exercise of which as between the Security Trustee
and the Loan Noteholders and other parties thereto shall be
conclusive and binding on the Loan Noteholders and other parties
thereto) and the Security Trustee shall not be responsible for any
Liability that may result from the exercise or failure to exercise
any such trust, power, authority and discretion but whenever the
Security Trustee is under the provisions of this Deed, the Loan
Note Conditions or the Series Related Documents bound to act at
the request or direction of the Loan Noteholders, or any of them,
or any other relevant party, the Security Trustee shall
nevertheless not be so bound unless first indemnified and/or
secured to its satisfaction against all actions, proceedings,
claims and demands to which it may render itself liable and all
costs, charges, damages, expenses and liabilities which it may
incur by so doing;
10.2.41 CONFIDENTIALITY: the Security Trustee shall not (unless and to the
extent ordered so to do by a court of competent jurisdiction) be
required to disclose to any Loan Noteholder or any other person
any confidential financial, price sensitive or other information
made available to the Security Trustee by the Loan Note Issuer or
any other person in connection with the trusts created under this
Deed and no Loan Noteholder or other person shall be entitled to
take any action to obtain from the Security Trustee any such
information;
10.2.42 CONSEQUENCES OF EXERCISE OF POWERS: in connection with the
exercise by it of any of its trusts, powers, authorities and
discretions under this Deed and the relevant Loan Note Supplement
(including, without limitation, any modification, waiver,
authorisation, determination or substitution) or the Loan Note
Conditions, the Security Trustee shall have regard to the
interests of the Loan Noteholders and, in particular but without
limitation, shall not have regard to the consequences of such
exercise for individual Loan Noteholders resulting from their
being for any purpose domiciled or resident in, or otherwise
connected with, or subject to the jurisdiction of, any particular
territory or any political sub-division thereof and the Security
Trustee shall not be entitled to require, nor shall any Loan
Noteholder be entitled to claim, from the Loan Note Issuer, the
Security Trustee or any other person any indemnification or
payment in respect of any tax consequence of any such exercise
upon individual Loan Noteholders except to the extent already
provided for in the Loan Note Conditions and/or any undertaking
given in addition thereto or in substitution therefor under this
Deed and the relevant Loan Note Supplement, provided that, where,
in the opinion of the Security Trustee, there is a conflict
between the interests of different classes of Loan Noteholders,
the Security Trustee shall give priority to the interests of the
most senior ranking Loan Noteholders whose interests shall
prevail;
10.3 MISCELLANEOUS POWERS AND DUTIES RELATING TO SECURITY
Subject, in the case of the Loan Note Issuer Jersey Secured Property, to
the Jersey Security Law and without prejudice to the provisions of Clauses
10.1 and 10.2, the
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Security Trustee shall also have the following powers and duties in
relation to the Security.
10.3.1 RELIANCE ON TITLE TO THE SECURITY: the Security Trustee may accept
without investigation, requisition or objection such right and
title as the Loan Note Issuer may have to any of the Security and
the other security created in favour of the Security Trustee by
this Deed and any relevant Loan Note Supplement and shall not be
bound or concerned to examine or enquire into or be liable for any
defect or failure in the right or title of the Loan Note Issuer to
all or any of the Security whether such defect or failure was
known to the Security Trustee or might have been discovered upon
examination or enquiry and whether capable of remedy or not. Each
Loan Noteholder and each other 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 Loan Note Issuer and the
Security Trustee shall not at any time have any responsibility for
the same and each Loan Noteholder and the other Secured Creditors
shall not rely on the Security Trustee in respect thereof.
10.3.2 REGISTRATION AND PERFECTION OF THE SECURITY: the Security Trustee
shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring the Security including
(without prejudice to the generality of the foregoing) (i) any
failure, omission or defect in registering or filing or procuring
registration or filing of, or otherwise protecting or perfecting
the Security or the priority thereof or the right or title of any
person in or to the assets comprised in the Security by
registering under any applicable registration laws in any
applicable territory any notice or other entry prescribed by or
pursuant to the provisions of any such laws and (ii) any failure
or omission to require any further assurances in relation to the
Security.
10.3.3 ADEQUACY OF THE SECURITY: the Security Trustee shall not be
responsible for any unsuitability, inadequacy or unfitness of any
asset as security for any Secured Obligations and shall not be
obliged to make any investigation into, and shall be entitled to
assume, the suitability, adequacy and fitness of the Security as
security for the Secured Obligations.
10.3.4 MONITORING: the Security Trustee shall not be responsible for
investigating, monitoring or supervising the observance or
performance by any person in respect of the Security or otherwise.
10.3.5 NO RESPONSIBILITY FOR SECURITY: the Security Trustee shall not be
responsible for any Liability occasioned to the Security however
caused, whether by an act or omission of the Loan Note Issuer or
any other party to the Documents, Receivables Document or security
or any other person (including any bank, broker, depositary,
warehouseman or other intermediary or any clearing system or
operator thereof) acting in accordance with or contrary to the
provisions of any of the Documents or otherwise and irrespective
of whether the Security is held by or to the order of any of such
persons, unless such loss is caused by the fraud, wilful default
or negligence of the Security Trustee;
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10.3.6 INSURANCE: without prejudice to the provisions of any Document or
Receivables Document relating to insurance, the Security Trustee
shall not be under any obligation to insure any of the Security or
any deeds or documents of title or other evidence in respect of
the Security 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 as a
result of the lack of or inadequacy of any such insurance;
10.3.7 DEPRECIATION IN VALUE: until such time as the Security becomes
enforceable, the moneys standing to the credit of any account
comprised in the Security shall be dealt with in accordance with
the provisions of the Transaction Documents and the Security
Trustee shall not be responsible in such circumstances or at any
other time for any Liability occasioned thereby whether by
depreciation in value or by fluctuation in exchange rates or
otherwise unless such Liability is occasioned by the negligence or
wilful default of the Trustee;
10.3.8 NO LIABILITY FOR LOSS: the Security Trustee will not be liable for
any decline in the value nor any loss realised upon any sale or
other disposition of any of the Security made pursuant to this
Deed and any relevant Loan Note Supplement;
10.3.9 TRUST PAY OUT EVENTS ETC.: without prejudice to the generality of
any of the foregoing provisions, the Security Trustee shall be
under no obligation to investigate whether a Trust Pay Out Event
or Trust Cash Manager Event or any breach or default has occurred
under the terms of the Receivables Trust Deed and Trust Cash
Management Agreement, nor obliged to make any investigation into
any facts or matters stated in any of the items referred to in
Clause 7.2(f) of the Receivables Trust Deed and Trust Cash
Management Agreement; and
10.3.10 REPLACEMENT CASH MANAGER: for the avoidance of doubt, the Security
Trustee shall not be under any obligation to take steps to appoint
any replacement Trust Cash Manager or Co-Trust Cash Manager or
Servicer in the event that any such person shall resign or have
their appointments terminated in accordance with the terms of any
relevant Transaction Documents.
10.4 SECURITY TRUSTEE NOT LIABLE FOR VALIDITY OR SUFFICIENCY
The Security Trustee makes no representations as to the validity or
sufficiency of this Deed or any Series Document or of the beneficial
entitlement of the Secured Creditors of any Series to a security interest
in the Secured Property in respect of such Series (other than the
authentication of the relevant Loan Notes) or of any Receivable in respect
of Designated Accounts in the Securitised Portfolio or Relevant Document.
The Security Trustee has no responsibility for the validity, value,
sufficiency or enforceability of the security over the Secured Property.
10.5 INSURANCE
The Security Trustee shall not be under any obligation to insure nor to
procure the insurance of all or any of the Secured Property in respect of
any Series or in respect of any assets over which it shall have been
granted a security interest in respect of or in relation to this Deed and
any relevant Loan Note Supplement or to require any other person to
maintain any such insurance and the Security Trustee shall not be
responsible
- 41 -
for any liability suffered by any Secured Creditor as a result of all or
any of the Secured Property in respect of the relevant Series being
uninsured or inadequately insured.
10.6 PRE-ENFORCEMENT APPLICATION OF FUNDS
Until such time as the Security in relation to any Series becomes
enforceable the moneys standing to the credit of any account comprised in
the Secured Property in respect of such Series shall be dealt with in
accordance with the provisions of the relevant Loan Note Supplement and
the Security Trustee shall not be responsible in such circumstances or at
any other time for any loss occasioned thereby by depreciation in value.
10.7 INCREASED COSTS
The Security Trustee shall have no responsibility whatsoever to the Loan
Note Issuer or any Secured Creditor with respect to any Series as regards
any deficiency which might arise because the Security Trustee is subject
to any tax in respect of all or any of the Secured Property relating to
such Series or in respect of any assets over which it shall have been
granted a security interest in respect of or in relation to this Deed and
any relevant Loan Note Supplement, the income therefrom or the proceeds
thereof.
10.8 NO OBLIGATION OF ENQUIRY
The Security Trustee shall not be responsible for investigating,
monitoring or supervising the observance or performance by any person of
their obligations in respect of the Secured Property in respect of any
Series or otherwise.
10.9 DEFECTS IN SECURITY
The Security Trustee shall not be liable for any failure, omission or
defect in perfecting, protecting or further assuring the Secured Property
in respect of any Series or in respect of any assets over which it shall
have been granted a security interest in respect of or in relation to this
Deed including (without prejudice to the generality of the foregoing) any
failure, omission or defect in registering or filing or procuring
registration or filing of or otherwise protecting or perfecting the
Secured Property in respect of any Series or in respect of any assets over
which it shall have been granted a security interest in respect of or in
relation to this Deed or the priority thereof or the right or title of any
person in or to the assets comprised therein by registering under any
applicable registration laws in any territory any notice or other entry
prescribed by or pursuant to the provisions of any such laws.
10.10 STANDARD OF CARE
If the Security Trustee, any agent thereof or other person to whom some of
the Security Trustee's functions are delegated hereunder fails to show the
degree of care and diligence required of it as a Security Trustee (due
regard being given to the provisions hereof conferring on it duties,
powers and discretions), nothing in this Deed shall relieve or indemnify
it from or against any liability that would otherwise attach to it in
respect of any negligence, default, breach of duty or breach of trust of
which it may be guilty.
10.11 SECURITY TRUSTEE'S LIABILITY
Nothing in this Deed contained shall in any case in which the Security
Trustee has failed to show the degree of care and diligence required of it
as Security Trustee having regard to the provisions of this Deed
conferring on it any powers, authorities or discretions exempt the
Security Trustee from or indemnify it against any liability for breach of
trust
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or any liability which by virtue of any rule of law would otherwise attach
to it in respect of any negligence, default, breach of duty or breach of
trust of which it may be guilty in relation to its duties under this Deed.
11. RESIGNATION OR REMOVAL OF THE SECURITY TRUSTEE
11.1 TIA REQUIREMENTS
This Deed shall always have a Security Trustee which shall be eligible to
act as Security Trustee under Sections 310(a)(1) and 310(a)(2) of the TIA.
The Security 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 Security Trustee has or shall acquire any "conflicting
interest" within the meaning of TIA Section 310(b), the Security Trustee
and the Loan Note Issuer shall comply with the provisions of TIA Section
310(b); Provided, however, that there shall be excluded from the operation
of TIA Section 310(b)(1) any deed or deeds under which other securities or
certificates of interest or participation in other securities of the Loan
Note Issuer are outstanding if the requirements for such exclusion set
forth in TIA Section 310(b)(1) are met. If at any time the Security
Trustee shall cease to be eligible in accordance with the provisions of
this Clause 11.1, the Security Trustee shall resign promptly in the manner
and with the effect specified in Clauses 11.2 to 11.5 (inclusive).
11.2 RESIGNATION
The Security Trustee, subject to Clause 11.4 below, may at any time resign
and be discharged from its obligations and duties hereby created by giving
written notice thereof to the Loan Note Issuer. Upon receiving such notice
of resignation, the Loan Note Issuer shall be vested with the power to
appoint a successor Security Trustee and shall promptly appoint such
successor Security Trustee as detailed in Clause 11.4 by written
instrument, in duplicate, one copy of which instrument shall be delivered
to the resigning Security Trustee and one copy to the successor Security
Trustee. If no successor Security Trustee shall have been so appointed and
have accepted within 30 days after the giving of such notice of
resignation, the resigning Security Trustee may petition any court of
competent jurisdiction for the appointment of a successor Security
Trustee.
11.3 REMOVAL OF SECURITY TRUSTEE
11.3.1 If at any time the Security Trustee shall be legally unable to
act, or shall be adjudged insolvent, or a receiver of the Security
Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Security Trustee or of
its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Loan Note Issuer may, but
shall not be required to, remove the Security Trustee and promptly
appoint a successor Security Trustee as detailed in Clause 11.4 by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the Security Trustee so removed and one copy
to the successor Security Trustee.
11.3.2 The Secured Creditors of all Series may at any time by direction
signed by all the Secured Creditors in writing addressed to the
Security Trustee and the Loan Note Issuer remove the Security
Trustee and shall do so by giving written notice thereof to the
Security Trustee. Upon such notice of removal being given, the
Loan Note Issuer shall be vested with the power to appoint a
successor Security
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Trustee and shall promptly appoint such successor Security Trustee
as detailed in Clause 11.4 by written instrument, in duplicate,
one copy of which instrument shall be delivered to the Security
Trustee being removed and one copy to the successor Security
Trustee.
11.4 APPOINTMENT OF SUCCESSOR
Any resignation or removal of the Security Trustee and appointment of a
successor Security Trustee pursuant to any of the provisions of this
Clause 11.4 shall not become effective until:
(vi) acceptance of appointment by the successor Security Trustee as
provided in Clause 11.5 hereof (and any liability of the Security
Trustee arising hereunder shall survive such appointment of a
successor Security Trustee); and
(vii) confirmation has been received from each Rating Agency that the
appointment of the successor Security Trustee will not result in
such Rating Agency reducing or withdrawing its then current rating
on any outstanding Associated Debt.
11.5 SUCCESSOR SECURITY TRUSTEE
11.5.1 Any successor Security Trustee appointed as provided in Clause
11.4 hereof shall execute, acknowledge and deliver to the Loan
Note Issuer and to its predecessor Security Trustee an instrument
accepting such appointment hereunder and the transfer of the
interests of the predecessor Security Trustee in the Secured
Property in respect of each Series to such successor Security
Trustee, and thereupon the resignation or removal of the
predecessor Security Trustee shall become effective and such
successor Security Trustee, without any further act, deed or
conveyance, shall become fully vested with such interests in the
Secured Property in respect of each Series and all the rights,
powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as Security Trustee herein.
The predecessor Security Trustee shall deliver to the successor
Security Trustee all documents and statements held by it
hereunder, and the parties to this Deed and the predecessor
Security Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required by the successor
Security Trustee for fully and certainly vesting and confirming in
the successor Security Trustee all such interests in Secured
Property in respect of all Series and such rights, powers, duties
and obligations.
11.5.2 Upon acceptance of appointment by a successor Security Trustee as
provided in this Clause 11.5, such successor Security Trustee
shall give notice of such succession hereunder to all Secured
Creditors of each Series.
11.5.3 Any successor Security Trustee will be a person in the United
Kingdom.
11.6 APPOINTMENT OF CO-SECURITY TRUSTEE OR SEPARATE SECURITY TRUSTEE
11.6.1 Notwithstanding any other provisions of this Deed, at any time,
for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Secured Property in respect
of any Series may at the time be located, the Security Trustee
shall have the power and may execute and deliver all
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instruments to appoint one or more Persons to act as a co-Security
Trustee or co-Security Trustees, or separate Security Trustee or
separate Security Trustees, with respect to all or any part of the
Secured Property in respect of any Series, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Secured Creditors of the relevant Series, such title to the
Secured Property in respect of any Series or any part thereof,
and, subject to the other provisions of this Clause 11.6, such
powers, duties, obligations, rights and trusts as the Security
Trustee may consider necessary or desirable. No notice to Secured
Creditors of the relevant Series of the appointment of any
co-Security Trustee or separate Security Trustee shall be required
under Clause 11.5 hereof.
11.6.2 Every separate Security Trustee and co-Security Trustee shall, to
the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Security Trustee shall be conferred or
imposed upon and exercised or performed by the Security
Trustee and such separate Security Trustee or co-Security
Trustee jointly (it being understood that such separate
Security Trustee or co-Security Trustee is not authorised
to act separately without the Security Trustee joining in
such act), except to the extent that under any laws of any
jurisdiction in which any particular act or acts are to be
performed (whether as Security Trustee hereunder or as
successor to the Security Trustee hereunder), the Security
Trustee shall be incompetent or unqualified to perform
such act or acts, in which circumstances such rights,
powers, duties and obligations (including the holding of
title to the Secured Property in respect of any Series or
any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate Security
Trustee or co-Security Trustee, but solely at the
direction of the Security Trustee;
(ii) no Security Trustee hereunder shall be personally liable
by reason of any act or omission of any other Security
Trustee hereunder; and
(iii) the Security Trustee may at any time accept the
resignation of or remove any separate Security Trustee or
co-Security Trustee Provided that upon such resignation or
removal, all title to any Secured Property, powers,
duties, obligations, rights and trusts previously vested
in such separate Security Trustee shall immediately revert
to the Security Trustee.
11.6.3 Any notice, request or other writing given to the Security Trustee
shall be deemed to have been given to each of the then separate
Security Trustees and co-Security Trustees, as effectively as if
given to each of them. Every instrument appointing any separate
Security Trustee or co-Security Trustee shall refer to this Deed
and the conditions of this Clause 11. Each separate Security
Trustee and co-Security Trustee, upon its acceptance of the trusts
conferred, shall be vested with the rights, trusts, powers, duties
and obligations specified in its instrument of appointment, either
jointly with the Security Trustee or
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separately, as may be provided therein, subject to all the
provisions of this Deed, specifically including every provision of
this Deed relating to the conduct of, affecting the liability of,
or affording protection to, the Security Trustee. Every such
instrument shall be filed with the Security Trustee and a copy
thereof given to the Loan Note Issuer and the Trust Cash Manager
(and any Co-Trust Cash Manager).
11.6.4 Any separate Security Trustee or co-Security Trustee may at any
time constitute the Security Trustee as its agent or
attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect to
this Deed or any Series Document on its behalf and in its name. If
any separate Security Trustee or co-Security Trustee shall die,
become incapable of acting, resign or be removed, all of its
rights, trusts, powers, duties and obligations shall vest in and
be exercised by the Security Trustee, to the extent permitted by
law, without the appointment of a new or successor Security
Trustee.
12. COSTS AND EXPENSES OF THE LOAN NOTE ISSUER
As full reimbursement for any costs and expenses incurred by it in
connection with its activities in respect of (i) a particular Series, the
Loan Note Issuer shall be entitled to utilise Secured Property in respect
of each Series allocated to the Secured Creditors for the relevant Series
to meet such costs and expenses attributable solely to a particular Series
with respect to each Calculation Period, solely to the extent of Secured
Property allocable with respect thereto as provided in this Deed, any Loan
Note Supplement and the relevant Loan Note Conditions, on the related
Distribution Date for such Series (each such cost and expense, a "SERIES
LOAN NOTE ISSUER PAYMENT" (which shall include all sums due to the
Security Trustee under Clause 13)) and, (ii) some or all Series, the Loan
Note Issuer shall be entitled to use Secured Property in respect of those
Series allocated to the Secured Creditors for each Series to meet such
costs and expenses attributable to those Series with respect to each
Calculation Period, solely to the extent of Secured Property allocable
with respect thereto as provided in this Deed, any Loan Note Supplement
and the relevant Loan Note Conditions, on the related Distribution Date
for each Series (the aggregate of such costs and expenses payable on a
Distribution Date for all Series, the "AGGREGATE LOAN NOTE ISSUER PAYMENT
AMOUNT"). The amount of any reimbursement for its activities as Loan Note
Issuer will be determined in accordance with the relevant Loan Note
Supplement for each Series. For the avoidance of any doubt, the amounts
due to the Security Trustee under Clause 13 shall be considered expenses
of the Loan Note Issuer and (1) will be allocated to a particular Series
Loan Note Issuer Payment with reference to the particular Series the
Security Trustee is owed an amount in respect of (if this is capable of
calculation), and (2) will be exclusive of VAT thereon, if applicable and
any such VAT will be payable in addition thereto.
13. REMUNERATION OF SECURITY TRUSTEE
13.1 ANNUAL FEE
The Loan Note Issuer shall pay to the Security Trustee remuneration for
its services as trustee as from the date of this Deed, such remuneration
to be at such annual rate as may from time to time be agreed between the
Loan Note Issuer and the Security Trustee. Such
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remuneration shall be payable in advance on the Payment Date falling in
March of each year (or if such day is not a Business Day, the next
succeeding Business Day), the first such payment to be made on the Closing
Date in respect of the period from and including the Closing Date to but
excluding the Payment Date falling in March 2001. Remuneration shall
accrue from day to day and be payable (in priority to payments to the Loan
Noteholders) up to (and including) the date when, the Loan Notes having
become due for redemption in full, the redemption moneys and interest
thereon to the date of redemption have been paid to the Principal Paying
Agent or the Security Trustee, provided that, if any payment of the moneys
due in respect thereof is improperly withheld or refused, remuneration
will start to accrue again.
13.2 ADDITIONAL FEE FOR EXCEPTIONAL DUTIES
In the event of the occurrence of a Loan Note Event of Default or if the
Security Trustee considers it expedient or necessary or is requested by
the Loan Note Issuer to undertake duties which the Security Trustee and
the Loan Note Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Security Trustee under this
Deed the Loan Note Issuer shall pay to the Security Trustee such
additional remuneration as shall be agreed between them.
13.3 FAILURE TO AGREE
In the event of the Security Trustee and the Loan Note Issuer failing to
agree:
(viii) (in a case to which Clause 13.1 above applies) upon the amount of
the remuneration; or
(ix) (in a case to which Clause 13.2 above applies) upon whether such
duties shall be of an exceptional nature or otherwise outside the
scope of the normal duties of the Security Trustee under this Deed
or under any relevant Loan Note Supplement, or upon such
additional remuneration,
such matters shall be determined by a merchant bank (acting as an expert
and not as an arbitrator) selected by the Security Trustee and approved by
the Loan Note Issuer or, failing such approval, nominated (on the
application of the Security 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 merchant bank being payable by the Loan
Note Issuer) and the determination of any such merchant bank shall be
final and binding upon the Trustee and the Loan Note Issuer.
13.4 FEES, COST AND EXPENSES
13.4.1 The Loan Note Issuer shall also, on demand by the Security
Trustee, pay or discharge to the extent of and from the Secured
Property in respect of any Series, to the Security Trustee all
costs, charges, liabilities and expenses properly incurred by the
Security Trustee in the preparation and execution of this Deed and
any relevant Loan Note Supplement and the performance of its
functions under this Deed and any relevant Loan Note Supplement
including, but not limited to, legal and travelling expenses and
any stamp, documentary or other taxes or duties paid by the
Security Trustee in connection with any legal proceedings properly
brought or contemplated by the Security Trustee against
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the Loan Note Issuer or any other party to enforce any provision
of this Deed or other Series Document.
13.4.2 If the Security Trustee determines in its sole discretion that any
such costs, charges, liabilities and expenses as are mentioned in
Clause 13.4.1 cannot be considered to be solely referable to a
particular Series, it shall be entitled in its sole discretion to
allocate such costs, charges, liabilities and expenses between
such Series as it shall consider those costs, charges, liabilities
and expenses to be referable pro rata in the proportion which the
aggregate Principal Amount Outstanding in respect of each such
Series bears to the aggregate Principal Amount Outstanding of all
such Series (as at the date such costs, charges, liabilities and
expenses were incurred) in respect of which such costs, charges,
liabilities and expenses were incurred as a whole.
13.5 INDEMNITY OF SECURITY TRUSTEE
The Loan Note Issuer shall indemnify the Security Trustee to the extent of
and from the Secured Property in respect of any Series, in respect of all
Liabilities and expenses properly incurred by it or by anyone appointed by
it or to whom any of its functions may be delegated by it in connection
with its appointment or the performance of or in relation to, its
functions and against any loss, liability, cost, claim, action, demand or
expense (including, but not limited to, all costs, charges and expenses
paid or incurred in disputing or defending any of the foregoing) that any
of them may incur or that may be made against any of them arising out of
or in relation to or in connection with, its appointment or the proper
exercise of its functions.
13.6 CONTINUANCE OF PROVISIONS
Clauses 13.4 and 13.5 shall continue in full force and effect as regards
the Security Trustee even if it no longer is Security Trustee.
13.7 INDEMNITY OF RECEIVER ETC.
13.7.1 Without prejudice to the right of indemnity by law given to
trustees and subject to the provisions of Section 192 of the
Companies ▇▇▇ ▇▇▇▇, the Security Trustee as permitted and every
receiver, attorney, manager, agent, or other person appointed by
the Security Trustee hereunder in relation to each Series shall be
entitled to be indemnified to the extent of and from the Secured
Property (in respect of any Series) for all liabilities and
expenses incurred by them in the execution or purported execution
of the trusts hereof or of any powers, authorities or discretions
properly vested in them pursuant to this Deed and any relevant
Loan Note Supplement and against all actions, proceedings, cost,
claims, and demands in respect of any matters or things done or
omitted in any way related to the Secured Property, and the
Security Trustee may retain any part of any moneys arising from
the trusts hereof all sums necessary to effect such indemnity and
also the remuneration of the Security Trustee hereinbefore
provided and the Security Trustee shall have a lien on such
Secured Property to the extent of the sum thereof for all moneys
payable to it under this Clause or otherwise howsoever.
13.7.2 If the Security Trustee determines in its sole discretion that any
such liabilities and expenses as are mentioned in Clause 13.7.1
cannot be considered to be
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solely referable to a particular Series, it shall be entitled in
its sole discretion to allocate such liabilities and expenses
between such Series as it shall consider those liabilities and
expenses to be referable pro rata in the proportion which the
aggregate Principal Amount Outstanding in respect of each such
Series bears to the aggregate Principal Amount Outstanding of all
such Series (as at the date such liabilities and expenses were
incurred) in respect of which such liabilities and expenses were
incurred as a whole.
14. COVENANTS BY THE LOAN NOTE ISSUER AND THE TRANSFERORS
14.1 COVENANTS
The Loan Note Issuer and each Transferor, in respect of each Series,
hereby covenants with the Security Trustee that, until (i) no further sums
are outstanding in respect of any Secured Obligation of the Loan Note
Issuer; (ii) the Loan Note Issuer has fulfilled and discharged all of the
Secured Obligations in respect of each Series; and (iii) this Deed is
terminated as between the Loan Note Issuer and all the other parties, it
shall in relation to its respective obligations under any Series:
14.1.1 in the case of the Loan Note Issuer, at all times carry on and
conduct its affairs in a proper and efficient manner;
14.1.2 in the case of the Loan Note Issuer at all times keep proper books
of account and allow the Security Trustee and any person appointed
by it, to whom the Loan Note Issuer or the Transferors have no
reasonable objection, access to the books of account of the Loan
Note Issuer at all reasonable times during normal business hours
and to discuss the same with a nominated officer of the Loan Note
Issuer and in the event that audited financial accounts of the
Loan Note Issuer are produced, to provide a copy thereof to the
Security Trustee in relation to each Series;
14.1.3 give notice in writing to the Security Trustee and the Loan
Noteholders in respect of such Series forthwith upon becoming
aware of the occurrence of a Loan Note Event of Default in
relation to such Series and without waiting for the Security
Trustee to take any action;
14.1.4 in the case of the Loan Note Issuer, so far as permitted by law,
at all times give to the Security Trustee such information and
afford the Security Trustee such facilities as it may require for
the purpose of discharging the duties, powers, trusts, authorities
and discretions vested in it by this Deed or by operation of law;
14.1.5 in the case of the Loan Note Issuer, unless specified otherwise in
the relevant Loan Note Supplement, not make or consent to any
amendment, variation or termination to any Series Document in
respect of any Series or any Secured Property in respect of such
Series without the prior written consent of the Security Trustee
and with due diligence use best efforts to pursue the performance
of any party with which it has contracted of the obligations of
such party under any Series Document;
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14.1.6 in the case of the Loan Note Issuer not, without the prior written
consent of the Security Trustee, give any guarantee or indemnity
(other than as contemplated by the Series Documents, the Articles
of Association of the Loan Note Issuer or the Administration
Agreement);
14.1.7 in the case of the Loan Note Issuer, not establish a branch or
agency nor maintain an office or establishment in the United
Kingdom;
14.1.8 ensure that each Series and all other transactions to be effected
hereunder shall at the time when they are entered into comply with
all applicable laws and regulations of any governmental or other
regulatory authority of England for the purposes of any relevant
Series Documents and that all necessary consents and approvals of,
and registrations and filings with, any such authority in
connection therewith are obtained and maintained in full force and
effect and copies thereof are supplied promptly to the Security
Trustee;
14.1.9 in the case of the Loan Note Issuer, promptly after the date
hereof join with the Security Trustee in giving notice to each
relevant Person of the Security granted to the Security Trustee
hereunder and procure that each such Person acknowledges the same.
In addition to the foregoing, the Loan Note Issuer shall from time
to time deliver, and assist the Security Trustee in delivering,
any other notices in relation to any Security as the Security
Trustee may reasonably request;
14.1.10 in the case of the Loan Note Issuer, at all times maintain its
residence in Jersey and outside the United Kingdom for the
purposes of United Kingdom taxation;
14.1.11 in the case of the Loan Note Issuer, use commercially reasonable
efforts to maintain its status as an "exempt company" within the
meaning of Article 123A of the Income Tax (Jersey) Law 1961, as
amended;
14.1.12 in the case of the Loan Note Issuer, at all times use its best
efforts to minimise taxes and any other costs arising in
connection with its activities;
14.1.13 in the case of the Loan Note Issuer, forthwith upon execution of
any further instruments or documents pursuant to any Loan Note
Supplement creating or purporting to create or to perfect or to
protect any security interest by the Loan Note Issuer, register in
any jurisdiction where such registration may be required, details
of such instrument or document;
14.1.14 in the case of the Loan Note Issuer, not take any steps in its
capacity as Investor Beneficiary of the Receivables Trust (either
on its own or in conjunction with any other Beneficiary of the
Receivables Trust) to terminate the Receivables Trust or any
sub-trust thereof.
14.1.15 in the case of the Loan Note Issuer, file with the Security
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 Loan Note Issuer is required to file with the SEC
pursuant to Section 13 or 15(d) of the United States Securities
Exchange
- 50 -
Act of 1934 within 15 days after it files them with the SEC. The
Loan Note Issuer also shall comply with the other provisions of
Section 314(a) of the TIA;
14.1.16 in the case of the Loan Note Issuer, furnish or cause to be
furnished to the Security Trustee on [June 30 and December 31] of
each year, commencing [June 30], 2000, and at such other times as
the Security Trustee may request in writing, all information in
the possession or control of the Loan Note Issuer, or of its
paying agents, as to the names and addresses of the Loan
Noteholders, and requiring the Security Trustee to preserve, in as
current a form as is reasonably practicable, all such information
so furnished to it or received by it in the capacity of paying
agent;
14.1.17 in the case of the Loan Note Issuer, upon the execution of this
Deed and thereafter forthwith upon any change of the same, deliver
to the Security Trustee (with a copy to the Principal Paying
Agent) a list of the Authorised Signatories of the Loan Note
Issuer, together with certified specimen signatures of the same;
14.1.18 in the case of the Loan Note Issuer, ensure that all contracts
will be entered into outside the United Kingdom;
14.1.19 in the case of the Loan Note Issuer, ensure that any agent who
signs any contract on behalf of the Loan Note Issuer will be
resident outside the United Kingdom for United Kingdom tax
purposes and will not act though a United Kingdom branch or
agency;
14.1.20 in the case of the Loan Note Issuer, not hold a bank account in
the United Kingdom; and
14.1.21 in the case of the Loan Note Issuer, not carry on a business or
enter into any business transactions, in the United Kingdom for
United Kingdom taxation purposes.
14.2 CERTIFICATES, OPINIONS
14.2.1 (a) Upon any application, demand or request by the Loan Note
Issuer to the Security Trustee to take any action under any
of the provisions of this Trust Deed (other than the issuance
of Loan Notes) and upon request of the Security Trustee, the
Loan Note Issuer shall furnish to the Security Trustee an
Officers' Certificate and Opinion of Counsel complying with
the provision of Section 314 of the TIA; and
(b) Each certificate or opinion provided for in this Deed and
delivered to the Security Trustee with respect to compliance
with a condition or covenant provided for in this Deed shall
include (i) a statement that the person making such
certificate or opinion has read such condition or covenant;
(ii) 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;
(iii) a statement that, in the opinion of such person, he has
made such examination or investigation as is
- 51 -
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied
with; and (iv) a statement as to whether or not the opinion
of such person, such condition or covenant has been complied
with.
14.2.2 Promptly after the execution and delivery of this Deed and each
Loan Note Supplement, the Loan Note Issuer will furnish to the
Security Trustee an Opinion of Counsel stating that in the opinion
of such counsel, appropriate steps have been taken to protect the
title of the Security Trustee to the Secured Property and reciting
the details of such action, or stating that in the opinion of such
counsel no such action is necessary; and the Loan Note Issuer
shall furnish to the Security Trustee, not more than three (3)
months after the anniversary of each calendar year, commencing
with calendar year 2002, 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 title of
the Security Trustee to the Secured Property and reciting the
details of such action or (ii) no such action is necessary for any
of such purposes.
The Security Trustee shall not be responsible for ensuring that the Loan
Note Issuer complies with its obligations to send the notices referred to
in Clauses 14.1.3 and 14.1.12 above to each such Secured Creditor or Loan
Noteholder (as the case may be).
14.3 CERTIFICATE OF COMPLIANCE
The Loan Note Issuer shall give to the Security Trustee (a) within seven
days after demand by the Security Trustee therefor; and (b) (without the
necessity for any such demand) promptly after the publication of its
audited accounts in respect of each financial period commencing with the
financial period first ending after the date hereof and in any event not
later than 120 days after the end of each such financial period a
certificate of the Loan Note Issuer signed by an Authorised Signatory of
the Loan Note Issuer to the effect that, on the basis of a review of the
activities of the Loan Note Issuer during such financial period and of the
Loan Note Issuer's performance under this Trust Deed, as at a date not
more than seven days before delivering such certificate (the "RELEVANT
DATE"), to the best of the knowledge of such director based on the review,
there did not exist and had not existed since the relevant date of the
previous certificate (or in the case of the first such certificate, since
the date hereof) any Loan Note Event of Default or any Potential Loan Note
Event of Default (or if such exists or existed specifying the same) and
that during the period from and including the relevant date of the last
such certificate (or in the case of the first such certificate the date
hereof) to and including the relevant date of such certificate the Loan
Note Issuer has complied with all its obligations contained in this Deed
and any relevant Loan Note Supplement or (if such is not the case)
specifying the respects in which it has not complied and the nature and
status of any default.
15. ACKNOWLEDGEMENT REGARDING PAYMENTS
Each of the Loan Note Issuer, the Security Trustee, the Receivables
Trustee and the Transferors acknowledge and confirm that the Receivables
Trustee shall apply any amounts due from the Loan Note Issuer to the
Receivables Trustee in respect of a Series
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in or towards satisfaction of any amounts then due to the Loan Note Issuer
from the Receivables Trustee in respect of any Trust Property of that
Series.
16. DELEGATION BY SECURITY TRUSTEE
16.1 DELEGATION
The Security Trustee may, in the execution and exercise of all or any of
the trusts, powers, authorities and discretions vested in it by this Deed
and any relevant Loan Note Supplement, act by responsible officers or a
responsible officer for the time being of the Security Trustee and the
Security Trustee may also whenever it thinks fit, whether by power of
attorney or otherwise, delegate to any person or persons or fluctuating
body of persons (whether being a joint trustee of this Deed and any
relevant Loan Note Supplement or not) all or any of the trusts, powers,
authorities and discretions vested in it by this Deed and any relevant
Loan Note Supplement and any such delegation may be made upon such terms
and conditions and subject to such regulations (including power to
sub-delegate with the consent of the Security Trustee) as the Security
Trustee may think fit in the interests of the Secured Creditors and the
Loan Noteholders and the Security Trustee shall not be bound to supervise
the proceedings or acts of, and shall not in any way or to any extent be
responsible for any Liability incurred by any misconduct or default on the
part of, such delegate or sub-delegate.
16.2 AGENTS
The Security Trustee may, in the conduct of the trusts of this Deed and
any relevant Loan Note Supplement instead of acting personally, employ and
pay an agent, 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 Security
Trustee (including the receipt and payment of money) and the Security
Trustee shall not be responsible for any misconduct or omission on the
part of any person appointed by it hereunder or be bound to supervise the
proceedings or acts of, and shall not in any way or to any extent be
responsible for any Liability incurred by any misconduct or default on the
part of, any such person.
16.3 CUSTODIAN
The Security Trustee may, in the conduct of the trusts of this Deed and
any relevant Loan Note Supplement, employ and pay a custodian to hold any
Investor Certificate and provided the Security Trustee has exercised due
care in the appointment of any such Custodian, the Security Trustee shall
not be responsible for any misconduct or omission on the part of any
person appointed by it hereunder or be bound to supervise the proceedings
or acts of, and shall not in any way or to any extent be responsible for
any Liability incurred by any misconduct or default on the part of, any
such person.
16.4 DEDUCTIONS AND WITHHOLDINGS
Notwithstanding anything contained in this Deed and any relevant Loan Note
Supplement, to the extent required by applicable law, if the Security
Trustee is required to make any deduction or withholding from any
distribution or payment made by it under this Deed and any relevant Loan
Note Supplement or if the Security Trustee is otherwise charged to, or may
become liable to, tax as a consequence of performing its duties under this
Deed and any relevant Loan Note Supplement or the other Documents, whether
as principal, agent or otherwise and whether by reason of any assessment,
prospective
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assessment or other imposition of liability to taxation of whatsoever
nature and whenever made upon the Security Trustee and whether in
connection with or arising from any sums received or distributed by it or
to which it may be entitled under this Deed and any relevant Loan Note
Supplement or the other Documents (other than in connection with its
remuneration as provided for herein) or any investments from time to time
representing the same, including any income or gains arising therefrom or
any action of the Security Trustee in or about the administration of the
trusts of this Deed and any relevant Loan Note Supplement (other than the
remuneration herein specified) or otherwise, then the Security Trustee
shall be entitled to make such deduction or withholding or (as the case
may be) to retain out of sums received by it an amount sufficient to
discharge any liability to tax which relates to sums so received or
distributed or to discharge any such other liability of the Security
Trustee to tax from the funds held by the Security Trustee on the trusts
of this Deed and any relevant Loan Note Supplement.
16.5 TRUSTEE MAY ENTER INTO FINANCIAL TRANSACTIONS
No Security Trustee and no director or officer of any corporation being a
trustee hereof shall by reason of the fiduciary position of such Security
Trustee be in any way precluded from making any contracts or entering into
any transactions in the ordinary course of business with the Loan Note
Issuer or any party to any of the other Documents or any person or body
corporate directly or indirectly associated with the Loan Note Issuer or
such other party, or from accepting the trusteeship of any other debenture
stock, debentures or securities of the Loan Note Issuer or such other
party or any person or body corporate directly or indirectly associated
with the Loan Note Issuer or such other party, and neither the Security
Trustee nor any such director or officer shall be accountable to the Loan
Noteholders, the other Secured Creditors, the Loan Note Issuer or any such
other party or any person or body corporate directly or indirectly
associated with the Loan Note Issuer or any such other party for any
profit, fees, commissions, interest, discounts or share of brokerage
earned, arising or resulting from any such contracts or transactions and
the Security Trustee and any such director or officer shall also be at
liberty to retain the same for its or his own benefit.
17. EMPLOYMENT OF AGENT BY SECURITY TRUSTEE
17.1 POWER OF ATTORNEY
The Security Trustee may in the conduct of the trusts of this Deed and any
relevant Loan Note Supplement instead of acting personally employ (after
prior consultation by the Security Trustee with the Loan Note Issuer and
after consideration in good faith by the Security Trustee of any
representations made by the Loan Note Issuer concerning the proposed
appointee except where, in the opinion of the Security Trustee, such
consultation and consideration was not practicable) and pay an agent,
whether being a lawyer or other professional person, to transact or concur
in transacting any business and to do or concur in doing all acts required
to be done in connection with the trusts of this Deed and any relevant
Loan Note Supplement, the Transaction Documents and/or any security
constituted pursuant thereto and its powers and provided that, the
Security Trustee shall have exercised reasonable care in the selection of
such agent, the Security Trustee shall not in any way be responsible for
any loss incurred by reason of any misconduct or default on the part of
any such agent appointed by it under this Deed and
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any relevant Loan Note Supplement, the Transaction Documents and/or any
security constituted pursuant thereto or to be bound to supervise the
proceedings, or acts of any such agent.
17.2 AGENT'S FEES
Any trustee of this Deed and any relevant Loan Note Supplement being a
banker, 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 any
relevant Loan Note Supplement, and/or any security constituted pursuant
thereto and also his reasonable charges in addition to disbursements for
all other work and business done and all time spent by him or his firm in
connection with matters arising in connection with this Deed and any
relevant Loan Note Supplement and/or any security constituted pursuant
thereto including matters which might or should have been attended to in
person by a trustee not being a banker, lawyer, accountant, broker or
other professional person.
18. SECURITY TRUSTEE CONTRACTING WITH LOAN NOTE ISSUER
Neither the Security Trustee nor any body corporate which is a parent
undertaking or a subsidiary undertaking, or a subsidiary undertaking of a
parent undertaking nor any director or officer of a corporation acting as
a trustee under this Deed and any relevant Loan Note Supplement, shall by
reason of its or his fiduciary position, be in any way precluded from
entering into or being interested in any contract or financial or other
transaction or arrangement with the Loan Note Issuer or any other party to
any of the Transaction Documents or any person or body corporate
associated with the Loan Note Issuer including without prejudice to the
generality of this provision any contract, transaction or arrangement of a
banking or insurance nature or any contract, transaction or arrangement in
relation to the making of loans or the provision of financial facilities
to or the purchase, placing or underwriting of or subscribing or procuring
subscriptions for or otherwise acquiring, holding or dealing with the
Notes or any of them, or any other bonds, stocks, shares, debenture stock,
debentures, notes or other securities of the Loan Note Issuer or any other
party to any of the Transaction Documents or any person or body corporate
associated as aforesaid or from accepting or holding the trusteeship of
any other trust deed constituting or securing any other securities issued
by or relating to the Loan Note Issuer or any other party to any of the
Transaction Documents or any such person or body corporate so associated
or any other office or profit under the Loan Note Issuer or any other
party to any of the Transaction Documents or any such person or body
corporate so associated and shall be entitled to retain and shall not be
in any way liable to account for any profit made or share of brokerage or
commission or remuneration or other benefit received thereby or in
connection therewith.
19. WAIVER, AUTHORISATION AND DETERMINATION
The Security Trustee may without prejudice to its rights in respect of any
subsequent breach, condition, event or act, at any time, but only insofar
as in its opinion the interests of the Secured Creditors (in relation to
which it is Security Trustee) will not be materially prejudiced thereby,
waive or authorise any breach or proposed breach by the Loan Note Issuer
of any of the covenants or provisions contained in this Deed in relation
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to such Series or determine that any Loan Note Event of Default in
relation to such Series shall not be treated as a Loan Note Event of
Default in relation to such Series for the purposes of this Deed in
relation to such Series, provided that the Security Trustee shall not
exercise any powers conferred on it by this Clause in contravention of any
express request given by the Priority Secured Creditor but so that no such
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 as may seem fit
and proper to the Security Trustee, shall be binding on the Secured
Creditors of such Series and, if (but only if) the Security Trustee so
requires, shall be notified by the Loan Note Issuer to the relevant
Secured Creditors of such Series in accordance with the terms of the
relevant Loan Notes as soon as practicable thereafter. The provisions of
this Clause 19 shall be in lieu of section 316(a)(1)(B) of the TIA and
section 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Deed and the Loan Notes, as permitted by the TIA.
20. MODIFICATION
20.1 The Security Trustee may, without the consent of the Secured Creditors of
any Series at any time and from time to time concur with the Loan Note
Issuer in making any modification to this Deed (other than the definition
of "EXTRAORDINARY RESOLUTION" in paragraph 21 and the terms of paragraph 5
of Schedule 3) or any of the other Transaction Documents:
20.1.1 which in the opinion of the Security Trustee it is proper to make,
provided that the Security Trustee is of the opinion that such
modification will not be materially prejudicial to the interests
of the Secured Creditors of any Series (in relation to which it is
Security Trustee); or
20.1.2 if in the opinion of the Security Trustee such modification is of
a formal, minor or technical nature or to correct a manifest
error.
Any such modification may be made on such terms and subject to such
conditions as may seem fit and proper to the Security Trustee, shall be
binding upon the Loan Noteholders of such Series and any other Secured
Creditor relating to such Series and, unless the Security Trustee agrees
otherwise, shall be notified by the Loan Note Issuer to the relevant Loan
Noteholders in accordance with the terms of the relevant Loan Notes as
soon as practicable thereafter.
20.2 In determining whether the Loan Noteholders of the required principal
amount of Loan Notes have concurred in any direction, waiver or consent,
Loan Notes owned by the Loan Note Issuer or by any Affiliate of the Loan
Note Issuer shall be disregarded, except that for the purposes of
determining whether the Security Trustee shall be protected in relying on
any such direction, waiver or consent, only Loan Notes which the Security
Trustee knows are so owned shall be disregarded.
21. LOAN NOTEHOLDER DEEMED TO BE ABSOLUTE OWNER
21.1 The Loan Note Issuer, the Security Trustee and any Paying Agent may (to
the fullest extent permitted by applicable laws and unless otherwise
provided in the relevant Loan Note Supplement) deem and treat the person
registered as the holder of any Loan Note as
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the absolute owner of the Loan Notes represented thereby for all purposes
(whether or not such Loan Notes are overdue and notwithstanding any notice
of ownership or writing thereon or any notice of previous loss or theft
thereof), and none of the Loan Note Issuer, the Security Trustee or any
Paying Agent shall be affected by any notice to the contrary.
21.2 All payments made to any such person shall be valid and, to the extent of
the sums so paid, effective to satisfy and discharge the liability for the
monies payable upon such Loan Note.
22. SUBSTITUTION
22.1 SUBSTITUTION
The Security Trustee may, without the consent of the Loan Noteholders,
agree with the Loan Note Issuer to the substitution in place of the Loan
Note Issuer or any previous Substituted Loan Note Issuer (as defined
below) as the principal debtor in respect of the Loan Notes of any other
body corporate (the "SUBSTITUTED LOAN NOTE ISSUER") provided that:
22.1.1 a trust deed or an indenture is executed or some other form of
undertaking is given by the Substituted Loan Note Issuer to the
Security Trustee in form and manner satisfactory to the Security
Trustee to be bound by the terms of this Deed and by the relevant
Loan Note Conditions (with any consequential amendments which the
Security Trustee may reasonably consider or deem to be
appropriate) as fully as if the Substituted Loan Note Issuer had
been a party to this Deed and named herein and in the Loan Notes
as the principal debtor in respect of the Loan Notes in place of
the Loan Note Issuer;
22.1.2 the Substituted Loan Note Issuer becomes a party to the relevant
Series Documents or to equivalent documents acceptable to the
Security Trustee;
22.1.3 if a director of the Substituted Loan Note Issuer certifies that
the Substituted Loan Note Issuer will be solvent immediately after
the time at which the said substitution is to be effected, the
Security Trustee shall not have regard to the financial condition,
profits or prospects of the Substituted Loan Note Issuer or
compare the same with those of the Loan Note Issuer (or any other
Substituted Loan Note Issuer substituted under this Clause);
22.1.4 the Security Trustee is satisfied that the relevant transaction is
not materially prejudicial to the interest of the Loan Noteholders
for which it shall be entitled conclusively to rely on the
confirmation received pursuant to Clause 22.1.5;
22.1.5 confirmation is received from the Rating Agencies appointed in
relation to any Related Debt issued in respect of such Series that
the ratings assigned to such Related Debt will not be withdrawn or
reduced as a result of the substitution;
22.1.6 the Security Trustee shall be satisfied (by means of legal
opinions in form and substance satisfactory to it or otherwise)
that (i) all necessary governmental and regulatory approvals and
consents necessary for, or in connection with, the assumption by
the Substituted Loan Note Issuer of liability as principal debtor
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in respect of, and of its obligations under, this Deed and (ii)
such approvals and consents are at the time of substitution in
full force and effect; and
22.1.7 the Loan Note Issuer or, as the case may be, the previous
Substituted Loan Note Issuer and the Substituted Loan Note Issuer
shall execute such other deeds, documents and instruments (if any)
and make such representations and warranties and provide such
other documentation (particularly, but not limited to, with regard
to any applicable bankruptcy law) as the Security Trustee may
require in order to be satisfied that such substitution is fully
effective and comply with such other requirements in the interests
of the Loan Noteholders as the Security Trustee may direct.
The Security Trustee shall not be required to give any consideration to
the above matters unless and until it has been indemnified and/or secured
to its satisfaction.
22.2 CHANGE OF LAW
In connection with any proposed substitution of the Loan Note Issuer or,
as the case may be, any previous Substituted Loan Note Issuer, the
Security Trustee, may, without the consent of the Loan Noteholders, agree
to a change of the law from time to time governing the Loan Notes and/or
this Deed and/or the Agency Agreement provided that such change of law, in
the opinion of the Security Trustee, would not be materially prejudicial
to the interests of the Loan Noteholders.
23. CURRENCY INDEMNITY
23.1 EXCHANGE RATE INDEMNITY
23.1.1 Currency of Account and Payment: pounds sterling (the "CONTRACTUAL
CURRENCY") is the sole currency of account and payment for all
sums payable by the Loan Note Issuer under or in connection with
this Deed and the Loan Notes, including damages;
23.1.2 Extent of Discharge: an amount received or recovered in a currency
other than the Contractual Currency (whether as a result of, or of
the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Issuer or
otherwise), by the Security Trustee or any Loan Noteholder in
respect of any sum expressed to be due to it from the Loan Note
Issuer will only discharge the Loan 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); and
23.1.3 Indemnity: if that Contractual Currency amount is less than the
Contractual Currency amount expressed to be due to the recipient
under this Deed or the Loan Notes, the Loan Note Issuer will
indemnify it against any loss sustained by it as a result. In any
event, the Loan Note Issuer will indemnify the recipient against
the cost of making any such purchase.
23.2 The above indemnities shall constitute obligations of the Loan Issuer
separate and independent from its obligations under the Loan Notes and
shall apply irrespective of
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any indulgence granted by the Security Trustee or the Loan Noteholders
from time to time and shall continue in full force and effect
notwithstanding the judgment or filing of any proof or proofs in any
bankruptcy, insolvency or liquidation of the Loan Issuer for a liquidated
sum or sums in respect of amounts due under this Deed (other than this
Clause) or the Loan Notes. Any such discrepancy as aforesaid shall be
deemed to constitute a loss suffered by the Security Trustee and the Loan
Noteholders and no proof or evidence of any actual loss shall be required
by the Loan Issuer or its liquidator.
24. NOTICES
24.1 DELIVERY OF NOTICES
Any notice, demand, approval or certificate to the Loan Note Issuer or the
Security Trustee required to be given, made or served for any purposes
under the Loan Notes, or any of them, or this Deed or any Loan Note
Supplement shall be given, made or served by sending the same by pre-paid
post (first class if inland, first class airmail if overseas), or
facsimile transmission or by delivering it by hand as follows:
to the Loan Note Issuer:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Mourant & Co. Secretaries Limited - Company
Secretary
Facsimile No: + 44 1534 609333
to the Security Trustee and the Principal Paying Agent:
The Bank of New York
One Canada Square
London E14 5AL
Attention: Global Structured Products Unit (Corporate Trust)
Facsimile No: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇/6399
Telephone: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇/6408
to the Receivables Trustee:
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention:
Facsimile No:
Telephone:
to The Royal Bank of Scotland Plc (as Transferor):
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
- ▇▇ -
▇▇▇ ▇▇▇
Attention:
Facsimile No:
Telephone:
to RBS Advanta (as Transferor):
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention:
Facsimile No:
Telephone:
to The Royal Bank of Scotland International Limited (as Registrar):
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Channel Islands
Attention: Company Secretary
Facsimile No: 01534 285386
or to such other address, facsimile number or marked for the attention of
such other person or department as shall have been notified (in accordance
with this Clause) to the other party hereto and any notice or demand sent
by post as aforesaid shall be deemed to have been given, made or served
three days in the case of inland post or seven days in the case of
overseas post after despatch and any notice or demand sent by facsimile
transmission as aforesaid shall be deemed to have been given, made or
served 24 hours after the time of despatch, provided that in the case of a
notice or demand given by facsimile transmission such notice or demand
shall forthwith be confirmed by post. The failure of the addressee to
receive such confirmation shall not invalidate the relevant notice or
demand given, made or served by facsimile transmission.
24.2 COMMUNICATIONS BY LOAN NOTEHOLDERS WITH OTHER LOAN NOTEHOLDERS
Loan Noteholders may communicate pursuant to TIA Section 312(b) with other
Loan Noteholders with respect to their rights under this Deed or the Loan
Notes. The Loan Note Issuer, the Security Trustee, and anyone else shall
have the protection of TIA Section 312(c).
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24.3 NOTICES TO LOAN NOTEHOLDERS
Any notice or communication mailed to Loan Noteholders hereunder shall be
transmitted by mail to such other Loan Noteholders as have, within the two
years preceding such transmission, filed their names and addresses with
the Security Trustee for that purpose.
25. RIGHTS OF THIRD PARTIES
No person who is not a party to this Deed shall have any right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Deed.
26. SEVERABILITY OF PROVISIONS
If any one or more of the covenants, agreements, provisions or terms of
this Deed shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Deed and
shall in no way affect the validity or enforceability of the other
provisions of this Deed or of the rights of the Secured Creditors of any
Series.
27. FURTHER ASSURANCES AND UNDERTAKING OF NON-PETITION
27.1 FURTHER ASSURANCES
The Transferors and the Security Trustee agree to do and perform, from
time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by the Loan Note Issuer more
fully to effect the purposes of this Deed and each Loan Note Supplement.
27.2 UNDERTAKING OF NON-PETITION
The Transferors hereby undertake (and any Additional Transferor shall, on
its accession to the RSA, also undertake) to the Loan Note Issuer and the
Security Trustee for itself and as Security Trustee for each Secured
Creditor that it will not take any corporate action or other steps or
legal proceedings for the winding up, dissolution or re-organisation of,
or for the appointment of a receiver, administrator, administrative
receiver, trustee, liquidator, sequestrator or similar officer of any
Secured Creditor (unless a Secured Creditor of a Series specifies
otherwise in the Loan Note Supplement in respect of that Series), the Loan
Note Issuer or any or all of the revenues and assets of any of them nor
participate in any ex parte proceedings nor seek to enforce any judgement
against any such Persons.
28. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, in respect of any
Series, on the part of the Loan Note Issuer, the Security Trustee, any
Enhancement Provider or any Secured Creditor, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
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29. RELEASE OF COLLATERAL
Except to the extent expressly provided in this Clause 29, the Security
Trustee shall release property from the security constituted by this Deed
as supplemented by the relevant Loan Note Supplement only upon receipt of
a Loan Note Issuer request accompanied by an Officers' Certificate, an
Opinion of Counsel and Independent Certificates in accordance with
Sections 314(c) and 314(d)(1) of the TIA or an Opinion of Counsel in lieu
of such Independent Certificates to the effect that the TIA does not
require any such Independent Certificates.
Prior to the release of any property or securities subject to the lien of
this Deed as supplemented by the relevant Loan Note Supplement, the Loan
Note Issuer shall, in addition to any obligation imposed in this Clause 29
or elsewhere in this Deed, furnish to the Security Trustee an Officers'
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value to the Loan Note 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 Loan Issuer is required to furnish to the Security Trustee an
Officers' Certificate certifying or stating the opinion of any signer
thereof as to the matters described in the preceding paragraph, the Loan
Issuer shall also deliver to the Security Trustee an Independent
Certificate as to the same matters, if the fair value to the Loan 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 Loan Issuer, as set forth in the certificates delivered
pursuant to this Clause 29, is 10% or more of the Outstanding Amount of
the Loan Notes, but such a certificate need not be furnished with respect
to any property so released if the fair value thereof to the Issuer as set
forth in the related Officers' Certificate is less than $25,000 or less
than one percent of the Principal Outstanding Amount of the Loan Notes.
Whenever any property is to be released from the security constituted by
this Deed as supplemented by the relevant Loan Note Supplement, the Loan
Issuer shall also furnish to the Security Trustee an Officer's Certificate
certifying or stating the opinion of each Person signing such certificate
that in the opinion of such person the proposed release will not impair
the security under this Deed in contravention of the provisions hereof.
Notwithstanding anything to the contrary contained herein, the Loan Issuer
may (A) collect, liquidate, sell or otherwise dispose of Receivables as
and to the extent permitted or required by the Series Related Documents,
(B) make cash payments out of the Loan Note Issuer Accounts as and to the
extent permitted or required by the Transaction Documents and (C) take any
other action not inconsistent with the TIA.
30. COUNTERPARTS
This Deed may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same instrument.
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31. THIRD PARTY BENEFICIARIES
31.1.1 This Deed will enure to the benefit of and be binding upon the
parties hereto, in respect of any Series, the Secured Creditors,
any additional Secured Creditors named therein, and their
respective successors and permitted assigns as Secured Creditors
and beneficiaries of the Secured Property in respect of a relevant
Series;
31.1.2 To the extent specified in any relevant Loan Note Supplement, any
third party including any Enhancement Provider, that is not a
Secured Creditor of the Secured Property of a Series, may by
execution of such Loan Note Supplement, as a matter of contract
only, be entitled to the benefit of the provisions of this Deed as
if such third party were a Secured Creditor hereunder and the
rights of such third parties so provided shall enure to the
benefit of such third parties and be binding upon the parties
hereto and the Secured Creditors of the Secured Property in
respect of such Series; and
31.1.3 Except as otherwise provided in this Clause 31, no other Person
will have any right or obligation hereunder.
32. ACTIONS BY LOAN NOTEHOLDERS
32.1.1 Wherever in this Deed a provision is made that an action may be
taken or a notice, demand or instruction given by a Loan
Noteholder of a Series, such action, notice or instruction may be
taken or given by any Loan Noteholder of such Series, unless such
provision requires a specific aggregate percentage of the
Principal Amount Outstanding of a Series or any Class within a
Series. Where a provision requires a specific aggregate percentage
of the Principal Amount Outstanding of a Series or any Class
within a Series any Loan Noteholder so voting shall have one vote
per pound sterling of such Principal Amount Outstanding which is
held by it and shall be entitled to cast each vote in a different
manner.
32.1.2 Any request, demand, authorisation, direction, notice, consent,
waiver or other act by a Loan Noteholder of a Series shall bind
each and every successor of such Loan Noteholder.
33. MERGER AND INTEGRATION
Except as specifically stated otherwise herein, this Deed sets forth the
entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this
Deed. This Deed may not be modified, amended, waived or supplemented
except as provided herein.
34. TIA PREVAILS
34.1 If any provision of this Deed limits, qualifies or conflicts with another
provision which is required to be included in this Deed by the TIA, the
required provision shall prevail.
34.2 Any right which at any time the Loan Note Issuer has under the existing or
future laws of Jersey whether by virtue of the droit de discussion or
otherwise to require that recourse be
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had to the assets of any other person before any claim is enforced against
the Loan Note Issuer in respect of the obligations hereby assumed by the
Loan Note Issuer is hereby abandoned and waived.
34.3 The Loan Note Issuer undertakes that if at any time any person indemnified
or who has the benefit of a guarantee sues the Loan Note Issuer in respect
of any such obligations and the person in respect of whose obligations the
indemnity or guarantee is given is not sued also, the Loan Note Issuer
shall not claim that such person be made a party to the proceedings and
the Loan Note Issuer agrees to be bound by such indemnity or guarantee
whether or not it is made a party to legal proceedings for the recovery of
the amount due or owing to the person indemnified or having the benefit of
a guarantee, as aforesaid, by the person in respect of whose obligations
the indemnity or guarantee is given and whether the formalities required
by any law of Jersey whether existing or future in regard to the rights or
obligations of sureties shall or shall not have been observed.
34.4 Any right which the Loan Note Issuer may have under the existing or future
laws of Jersey whether by virtue of the droit de division or otherwise to
require that any liability assumed hereunder or divided or apportioned
with any person or reduced in any manner whatsoever is hereby abandoned
and waived.
35. GOVERNING LAW AND JURISDICTION
35.1 GOVERNING LAW
This Deed (and the Security Trust constituted hereby) shall be governed by
and construed in accordance with the laws of England save that those parts
of this Deed concerned with the creation, subsistence or enforcement of
the Loan Note Issuer Jersey Security Interest shall be governed by and
construed in accordance with Jersey law.
35.2 JURISDICTION
35.2.1 Each of the parties hereto irrevocably agrees for the benefit of
each other party that the courts of England shall have exclusive
jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in
connection with this Deed, and for such purposes, irrevocably
submits to the exclusive jurisdiction of such courts.
35.2.2 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 suit, action or
proceeding, and to settle any disputes, which may arise out of or
in connection with this Deed and agrees not to claim that any such
court is not a convenient or appropriate forum.
35.2.3 Each party hereto (if it is not incorporated in England)
irrevocably appoints the person specified against its name on the
execution pages hereto to accept service of any process on its
behalf and further undertakes to the other parties hereto that it
will at all times during the continuance of this Deed maintain the
appointment of some person in England as its agent for the service
of process and irrevocably agrees that service of any writ, notice
or other document for the purposes of any suit, action or
proceeding in the courts of England shall be duly served upon it
if delivered or sent by registered post to the address of such
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appointee (or to such other address in England as that party may
notify to the other parties hereto).
IN WITNESS WHEREOF, this Security Trust Deed has been executed as a deed in
Jersey by the parties hereto and is intended to be and is hereby delivered on
the day and year first above written.
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SCHEDULE 1
FORM OF LOAN NOTE CERTIFICATE
RBS CARDS SECURITISATION FUNDING LIMITED
(INCORPORATED IN JERSEY WITH REGISTERED NUMBER 76199)
[GBP][{circle}] SERIES [{circle}] [CLASS [{circle}]] LOAN NOTE
Constituted by the Security Trust Deed dated [{circle}] 2000 between, among
others, RBS Cards Securitisation Funding Limited ("RBS CARDS"), The Royal Bank
of Scotland plc and RBS Advanta (the "SECURITY TRUST DEED").
NOT AN INTEREST IN OR RECOURSE OBLIGATION OF THE ROYAL BANK OF SCOTLAND PLC
OR RBS ADVANTA
This certifies that upon execution and authentication of this Series [{circle}]
[Class [{circle}]] Loan Note in accordance with the Security Trust Deed, RBS
Cards, for value received and subject to and in accordance with the Conditions
in the Series [{circle}] Note Supplement, promises to pay to the Registered
Holder (as defined below), as holder of the Series [{circle}] [Class [{circle}]]
Loan Note the principal sum of [GBP][{circle}] plus interest thereon, in the
amount and in the manner set out in the Security Trust Deed as supplemented by
the Series [{circle}] Loan Note Supplement dated [{circle}] 2000 to the Security
Trust Deed.
Terms defined in the Security Trust Deed and the Master Framework Agreement
dated [{circle}] 2000 shall have the same meaning in this Series [{circle}]
[Class [{circle}]] Loan Note.
PLEASE NOTE THE FOLLOWING:
1. No transfer of this Series [{circle}] [Class [{circle}]] Loan Note [or
transfer of same] shall be permitted except in accordance with Clause 4 of
the Security Trust Deed and the Conditions.
2. The entries in the Loan Note Register shall be conclusive in the absence
of manifest error and the Security Trustee and the Issuer shall be
entitled to treat [{circle}] (as the Person in whose name this Series
[{circle}] [Class [{circle}]] Loan Note is registered) (the "REGISTERED
HOLDER") as the owner hereof and the Person entitled to be repaid as a
consequence thereof.
3. Unless this Loan Note has been authenticated by or on behalf of the
Principal Paying Agent by manual signature, the Registered Holder shall
not become entitled to be repaid as the holder of this Series [{circle}]
[Class [{circle}]] Loan Note and shall not be registered in the Loan Note
Register as holder of this Series [{circle}] [Class [{circle}]] Loan Note.
4. This Loan Note is evidence of entitlement only.
5. Only the Registered Holder is entitled to payments in respect of the
Series [{circle}] [Class [{circle}]] Loan Note represented by this Loan
Note and title to this Series [{circle}] [Class [{circle}]] Loan Note
passes only on due registration in the Loan Note Register.
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IN WITNESS WHEREOF, RBS Cards has executed this Series [{circle}] [Class
[{circle}]] Loan Note as a deed.
RBS CARDS SECURITISATION FUNDING LIMITED
By: And By:
Name: Name:
Title: Title:
Date: [{circle}]
AUTHENTICATION
This is the Series [{circle}] [Class [{circle}]] Loan Note referred to in the
above mentioned Security Trust Deed and Series [{circle}] Loan Note Supplement.
[[{circle}]
Principal Paying Agent
By:
Name:
Title:
Date: [{circle}]]
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SCHEDULE 2
TERMS AND CONDITIONS OF THE LOAN NOTES
The following is the text of the terms and conditions which (save for the
italicised text) will be endorsed on the Loan Notes in definitive form (if any)
issued in exchange for the Global Loan Note(s) representing each Series of Loan
Notes in registered form. References in the terms and conditions to "Loan Notes"
are to the Loan Notes of one Series only, not to all Loan Notes which may be
issued under another Series and references to a "Class" are to a Class of Loan
Notes.
The Loan Notes (as defined in Condition 1.1.1) are constituted and secured by a
security trust deed dated on or about 27 March 2000 (the "TRUST DEED") between,
inter alios, the Loan Note Issuer and The Bank of New York, acting through its
London branch (the "SECURITY TRUSTEE" which expression shall include all persons
for the time being the Security Trustee or Security Trustees under the Security
Trust Deed referred to below) as supplemented by a loan note supplement for the
relevant series (the "LOAN NOTE SUPPLEMENT") dated the Issue Date (as defined in
Condition 5.8 below) between the Loan Note Issuer, the Security Trustee and the
other parties named therein (the Trust Deed and any Loan Note Supplement being
referred to herein as the "SECURITY TRUST DEED").
The Loan Notes will have the benefit (to the extent applicable) of an agency
agreement dated on or about [ {circle} ] as may be amended or supplemented from
time to time (the "AGENCY AGREEMENT") between the Loan Note Issuer, the Security
Trustee and The Bank of New York acting through its London Branch in its
capacity as principal paying agent (the "PRINCIPAL PAYING AGENT", which
expression shall include any successor to The Bank of New York in its capacity
as such). As used herein, "PRINCIPAL PAYING AGENT" means, in relation to any
Series of Loan Notes, the person specified in the relevant Loan Note Supplement
as the Principal Paying Agent for such Series.
Certain statements in these terms and conditions (the "CONDITIONS") may be
summaries of the detailed provisions appearing on the face of the Loan Notes
(which expression shall include the body thereof) and in the Trust Deed. Copies
of the Trust Deed, the Loan Note Supplement and the Agency Agreement are
available for inspection at the specified office of the Principal Paying Agent
in London. The Loan Noteholders (as defined in Condition 1 below) are entitled
to the benefit of, are bound by, and are deemed to have notice of, all the
provisions of the Security Trust Deed and to have notice of those provisions of
the Agency Agreement applicable to them.
Words and expressions defined in the Security Trust Deed, the Agency Agreement
or the master framework agreement (as amended and supplemented from time to
time) signed for the purpose of identification by, amongst others, the Loan Note
Issuer and the Security Trustee (the "MASTER FRAMEWORK AGREEMENT") shall have
the same meaning where used in these Conditions unless the context otherwise
requires or unless otherwise stated and provided that, in the event of
inconsistency between the Agency Agreement, the Security Trust Deed or the
Master Framework Agreement, the definition of the relevant term shall have the
meaning specified in the relevant document ranking the highest in the following
order of priority:
(b) firstly, the Loan Note Supplement relevant to the Series in question;
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(c) secondly, these Conditions;
(d) thirdly, the Trust Deed;
(e) fourthly, the Agency Agreement; and
(f) fifthly, the Master Framework Agreement.
6. FORM, DENOMINATION AND TITLE
6.1 FORM, DENOMINATION AND TITLE
6.1.1 The Loan Notes are issued in registered form and are serially
numbered.
6.1.2 The Issuer will cause to be kept, at the specified office outside
the United Kingdom of the Registrar, a register (the "LOAN NOTE
REGISTER") on which shall be entered the names and addresses of
the holders of the Loan Notes and the particulars of the Loan
Notes held by them.
6.1.3 Title to the Loan Notes will pass by and upon registration of
transfers in the Loan Note Register. In these Conditions, the
"HOLDER" of a Loan Note means the person in whose name or on whose
behalf such Loan Note is for the time being registered in the Loan
Note Register (or, in the case of a joint holding, the first named
thereof) and "LOAN NOTEHOLDER" shall be construed accordingly. A
certificate (each a "LOAN NOTE CERTIFICATE") will be issued to
each Loan Noteholder in respect of its registered holding.
6.1.4 The holder of a Loan Note shall (except as otherwise required by
law) be treated as the absolute owner of such Loan Note for all
purposes (whether or not the Loan Note is overdue and regardless
of any notice of ownership or writing on any Loan Note Certificate
relating thereto (other than the endorsed form of transfer) or any
notice of previous loss or theft of such Loan Note Certificate)
and no person shall be liable for so treating such holder.
6.2 TRANSFERS OF NOTES
6.2.1 TRANSFERS
Subject to Condition 1.2.4 below and save in the case of the
initial transfer to the Note Trustee or its nominee, a Loan Note
may be transferred in whole (but not in part) upon surrender of
the relevant Loan Note Certificate at the specified office of the
Registrar, with the form of transfer endorsed on the Loan Note
Certificate duly completed and signed by or on behalf of the
transferor and the Loan Note Issuer and together with such
evidence as the Registrar may reasonably require to prove:
(i) the title of the transferor;
(ii) the authority of the individuals who have executed the
form of transfer; and
(iii) the payment of any stamp duty payable on such transfer.
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Provided that save in the case of the initial transfer to the Note
Trustee or its nominee, no Loan Note may be transferred without
the prior written consent of the Security Trustee, the Transferors
and any Additional Transferor (such consent not to be unreasonably
withheld).
6.2.2 REGISTRATION AND DELIVERY OF LOAN NOTE CERTIFICATE
Within five Business Days of the surrender of a Loan Note
Certificate in accordance with Condition 1.2.1 above (or such
longer period as may be required to comply with any applicable
fiscal or other laws or regulations), the Registrar will register
the transfer in question and deliver at the Registrar's specified
office a new Loan Note Certificate with the same face value as the
Loan Note Certificate being transferred to the transferee or (at
the request and risk of the transferee) send by uninsured mail to
such address as the transferee may specify for the purpose.
In these Conditions "BUSINESS DAY" shall be construed as a
reference to a day (other than a Saturday or a Sunday) on which
banks are generally open for business in London, Jersey and New
York.
6.2.3 CHARGE
Loan Noteholders will be required to bear the costs and expenses
of effecting any registration of a transfer or any exchange as
provided above.
6.2.4 CLOSED PERIODS
No Loan Noteholder may require transfers to be registered during
the period of five Business Days ending on the due date for any
payment of principal in respect of any Loan Note.
6.2.5 INITIAL REGISTRAR
The Loan Note Issuer reserves the right at any time with the
consent of the Security Trustee to vary or terminate the
appointment of the Registrar and to appoint another Registrar.
Notice of any termination or appointment and of any changes in
specified offices will be given to Loan Noteholders promptly by
the Loan Note Issuer in accordance with Condition 14.
6.3 STATUS
The Loan Notes in each Series are direct, unconditional and secured
obligations of the Loan Note Issuer and shall at all times rank pari passu
and without any preference or priority among and between themselves.
6.4 CLASSES OF LOAN NOTES COMPRISING A SERIES
A Series of Loan Notes may comprise a number of Classes under which the
right to receive the payment of interest and repayment of principal may be
subordinated to the rights of one or more Classes of Loan Notes within the
same Series.
7. STATUS OF THE LOAN NOTES AND PRIORITY SECURED CREDITOR
7.1 UNSUBORDINATED CLASSES OF LOAN NOTES
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7.1.1 This Condition 2.1 is applicable only in relation to any Class of
Loan Notes which is specified as being Unsubordinated.
7.1.2 In the case of an Unsubordinated Class of Loan Notes, the Loan
Notes and Coupons are secured, limited recourse obligations of the
Loan Note Issuer, secured in the manner described in Condition 3
and recourse in respect of which is limited in the manner
described in Condition 10 and will rank pari passu without any
preference among themselves.
7.2 SUBORDINATED LOAN NOTES
7.2.1 This Condition 2.2 is applicable only in relation to any Class of
Loan Notes which is specified as being Subordinated.
7.2.2 In the case of Subordinated Loan Notes, the subordination
provisions will be set out in full in the relevant Loan Note
Supplement.
7.3 PRIORITY SECURED CREDITOR
The relevant Loan Note Supplement will enable the Security Trustee to
determine a Priority Secured Creditor (as defined in the Master Framework
Agreement), which may be the Loan Noteholders of the most senior ranking
Class of Loan Notes and, for such purpose the Loan Noteholders of the most
senior ranking Class of Loan Notes of a Series will be deemed to be a
single Secured Creditor. Such Priority Secured Creditor will enjoy
preferential ranking in the order of priority of payments on enforcement
of the relevant Security or following a Mandatory Early Redemption (as set
out in Condition 6.2), and the Security Trustee will, where the interests
of such Priority Secured Creditor conflict with those of the other Secured
Creditors (as defined in Condition 3.1.2), prefer the interests of such
Priority Secured Creditor over that of other Secured Creditors (and shall
not take into account the interests of such other Secured Creditors). If,
following a request as aforesaid and unless the Security Trustee has
already taken action pursuant to such request which (in its sole
discretion it determines) it would not be practical to reverse, the
identity of the Priority Secured Creditor changes to another Secured
Creditor (as so provided in the definition of Priority Secured Creditor in
the Master Framework Agreement), the Security Trustee shall in its
absolute discretion and without liability therefor be entitled to take
into account the request of such succeeding Priority Secured Creditor, but
shall not be obliged to do so and shall not incur any liability for
determining that it is impractical to take account of the change of
identity of the Priority Secured Creditor.
8. SECURITY AND RELATED AGREEMENTS
8.1 SECURITY AND RELATED AGREEMENTS
8.1.1 In connection with the issue of the Loan Notes or in respect of
any Series, the Loan Note Issuer may enter into swap transactions
or other hedging agreements or any letters of credit, guarantees
or other credit support or credit enhancement documents or other
financial arrangements (each a "RELATED AGREEMENT") with one or
more counterparties (each a "COUNTERPARTY"). The obligations of a
Counterparty may be guaranteed by a guarantor (the "GUARANTOR").
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8.1.2 The obligations of the Loan Note Issuer to the persons having the
benefit of the Security relating to a Series pursuant to the
relevant Loan Note Supplement in respect thereof (the "SECURED
CREDITORS") are secured pursuant to the Loan Note Supplement in
respect of such Series by Encumbrances governed by English law and
by Jersey law and such further encumbrances as may be required by
the Security Trustee, governed by the law of any other relevant
jurisdiction over the Charged Assets and/or the Underlying Assets
as specified in the relevant Loan Note Supplement.
8.1.3 The Secured Creditors of all Series are also secured pursuant to
the Trust Deed by an assignment by way of first fixed security of
the interests of the Loan Note Issuer in the Agency Agreement and
a floating charge over the assets of the Loan Note Issuer and
which are not otherwise charged or assigned by the Security
Documents or effectively encumbered by the assignments granted in
the Trust Deed.
8.1.4 The security created by each Loan Note Supplement will be
supported by such further security documents as may, from time to
time, be required by the Security Trustee and as specified in the
Loan Note Supplement (each a "SUPPLEMENTARY SECURITY DOCUMENT" and
together with the relevant Loan Note Supplement, the "SECURITY
DOCUMENTS") (the "SECURITY").
8.2 APPLICATION OF PROCEEDS
8.2.1 ON EACH DISTRIBUTION DATE
On each Distribution Date, all moneys received or held by the Loan Note
Issuer in the Loan Note Issuer Distribution Account relating to a Series
(as recorded in the relevant Series Loan Note Issuer Distribution Account
Ledger) shall be applied to make the following payments:
(a) an amount equal to the Trustee Payment Amount (as defined in the
relevant Series Trust Supplement) referable to the relevant Series
to be paid to the Receivables Trustee as additional consideration
for granting of the Loan Note Issuer's interest in the Receivables
Trust;
(b) an amount equal to the Loan Note Issuer Costs Payment Amount
referable to the relevant Series to be transferred to the Loan
Note Issuer Expenses Account and recorded in the relevant Series
Loan Note Issuer Expenses Account Ledger;
(c) in no order of priority between them, but pro rata according to
the respective amounts thereof:
(iv) an amount equal to the Servicer Fee Payment Amount (as
defined in the relevant Series Trust Supplement) to be
paid to the Servicer;
(v) an amount equal to the Cash Management Fee Payment Amount
(as defined in the relevant Series Trust Supplement) to be
paid to the Receivables Trustee as additional
consideration for the granting of the Loan Note Issuer's
interest in the Receivables Trust;
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(d) an amount equal to the Loss Makeup (default) Amount and Loss
Makeup (charge off) Amount (each as defined in the relevant Series
Trust Supplement) and any Refunded Utilised Principal Collections
Amount (as defined in the relevant Series Trust Supplement)
referable to the relevant Series to be paid to the Receivables
Trustee as additional consideration for the granting of the Loan
Note Issuer's interest in the Receivables Trust;
(e) an amount equal to any interest or principal due and unpaid to the
relevant lender under any loan facility entered into by the Loan
Note Issuer in respect of any obligation to pay any stamp duty on
the transfer of the relevant Series Receivables;
(f) an amount equal to the Investor Indemnity Amount (as defined in
the relevant Series Trust Supplement) for the relevant Series to
be paid to the Receivables Trustee as additional consideration for
the granting of the Loan Note Issuer's interest in the Receivables
Trust;
(g) an amount equal to the Loan Note Issuer Return (as defined in the
relevant Series Trust Supplement) for the relevant Series to be
transferred to the Loan Note Issuer Distribution Account in
respect of that Series;
(h) an amount equal to the Available Spread (as defined in the
relevant Series Trust Supplement) for the relevant Series to be
paid to the Receivables Trustee as additional consideration for
the granting of the Loan Note Issuer's interest in the Receivables
Trust.
8.2.2 ON EACH PAYMENT DATE
On each Payment Date, all moneys received or held by the Loan Note Issuer
in the relevant accounts relating to a Series (as specified below) prior
to and after the service of a Loan Note Enforcement Notice shall be
applied in the following order of priority (and, in each case, only if and
to the extent that payments or provisions of a higher order of priority
have been made in full):
(a) firstly, from the Loan Note Issuer Distribution Account in respect
of the relevant Series and from the Loan Note Issuer Expenses
Account in respect of the relevant Series (as recorded in the
relevant Series Loan Note Issuer Expenses Account Ledger) in or
towards satisfaction, pro rata according to the respective amounts
thereof, of:
(vi) the fees or other remuneration and indemnity payments (if
any) payable to any Receiver appointed by the Security
Trustee and any costs, charges, liabilities and expenses
incurred by the Receiver under the provisions of the Trust
Deed and the relevant Loan Note Supplement, as it relates
to the relevant Series, together with interest thereon as
provided for therein;
(vii) the fees or other remuneration and indemnity payments (if
any) payable to the Security Trustee and any costs,
charges, liabilities and expenses incurred by it under the
provisions of the Trust Deed and the relevant
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Loan Note Supplement, as it relates to the relevant
Series, together with interest thereon as provided for
therein;
(viii) the fees or other remuneration and indemnity payments (if
any) payable to the Principal Paying Agent and any costs,
charges, liabilities and expenses incurred by it under the
provisions of the Agency Agreement and any other
Transaction Documents, as it relates to the relevant
Series, together with interest thereon as provided for
therein; and
(ix) the fees or other remuneration and indemnity payments (if
any) payable to any other persons appointed by the
Security Trustee or the Principal Paying Agent (as the
case may be) under the Related Documents in enforcing,
preserving or perfecting title to the Security for the
relevant Series together with interest thereon as provided
for therein; and
(b) secondly, from the Loan Note Issuer Expenses Account in respect of
the relevant Series in or towards satisfaction of all costs,
charges, liabilities and expenses incurred by the Loan Note Issuer
in respect of the relevant Series; and
(c) thirdly, from the Loan Note Issuer Distribution Account in respect
of the relevant Series in or towards satisfaction of all Interest
Amounts due or accrued but unpaid under the Loan Notes for the
relevant Series; and
(d) fourthly, from the Loan Note Issuer Distribution Account in
respect of the relevant Series in or towards satisfaction of all
amounts of principal due but unpaid in respect of the Loan Notes
for the relevant Series; and
(e) fifthly, any surplus in the Loan Note Issuer Distribution Account
in respect of the relevant Series to the Loan Note Issuer.
8.3 SHORTFALL AFTER APPLICATION OF PROCEEDS
If the net proceeds of:
(f) the realisation of the Security for any Series of Loan Notes,
having become enforceable under these Conditions; or
(g) the sale or redemption of the Charged Assets and/or Underlying
Assets in accordance with these Conditions,
are not sufficient to make all payments due in respect of the Loan Notes
of such Series and for the Loan Note Issuer to meet its obligations, if
any, in respect of the termination of any Related Agreement(s) in respect
of that Series, the assets of the Loan Note Issuer, including, in
particular, assets securing other Series of Loan Notes not related to that
Series will not be available for payment of any shortfall arising
therefrom and all further claims (if any) of the Loan Noteholder and of
all other Secured Creditors in respect of the first mentioned Series of
Loan Notes will be extinguished. Any such shortfall shall be borne as
specified in the relevant Loan Note Supplement. Claims and the right of
any person to claim in respect of any such shortfall remaining after the
application of such net proceeds in accordance with the relevant Loan Note
Supplement shall be
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extinguished and the Loan Noteholders and all other Secured Creditors of
such Series will have no further recourse to the Loan Note Issuer and
failure to make any payment in respect of any such shortfall shall in no
circumstances constitute a Loan Note Event of Default (or, if a Loan Note
Event of Default has already occurred, a further Loan Note Event of
Default) under Condition 9.
9. RESTRICTIONS
So long as any of the Loan Notes in respect of a Series remain outstanding
the Loan Note Issuer will not, save to the extent permitted by the
Transaction Documents, or with the prior written consent of the Security
Trustee:
(a) dispose of any Secured Property in respect of the relevant Series
or create or permit to subsist any Encumbrance including, without
limitation, anything analogous to any of the foregoing under the
laws of any jurisdiction upon the whole or any part of its present
or future undertaking, assets or revenues (including, without
limitation, uncalled capital and any Secured Property) other than
the security interest referred to in Clauses 5.1 to 5.3 of the
Security Trust Deed as amended by the relevant Loan Note
Supplement;
(b) carry on any business other than as contemplated in the
Transaction Documents to which it is a party relating to the
purchase of beneficial interests in Portfolios of Receivables to
be held on trust by the Receivables Trustee and the issue of the
Loan Notes of the Series and in respect of that business shall not
engage in any activity or do anything whatsoever except:
(i) preserve and/or exercise and/or enforce any of its rights
and perform and observe its obligations under the Loan
Notes appertaining thereto and the Transaction Documents
to which it is a party;
(ii) use, invest or dispose of any of its property or assets in
the manner provided in or contemplated by the Transaction
Documents to which it is a party;
(iii) perform any act incidental to or necessary in connection
with (a) or (b) above;
(c) have or form, or cause to be formed, any subsidiary, subsidiary
undertakings or undertakings of any other nature or have any
employees or premises or have an interest in a bank account other
than the Loan Note Issuer Accounts;
(d) create, incur or suffer to exist any indebtedness (other than
indebtedness permitted to be incurred under the terms of its
articles of association and pursuant to or as contemplated in any
of the Transaction Documents to which it is a party) or give any
guarantee in respect of any obligation of any Person;
(e) repurchase any shares or declare or pay any dividend or other
distribution to its shareholders or issue or allot shares to any
Person other than The Royal Bank of Scotland plc and provided in
the case of payment of any dividend, the Loan
- 75 -
Note Issuer has prepared annual audited accounts in the relevant
year, except to the extent required by law;
(f) consolidate with or merge with or into any person or liquidate or
dissolve on a voluntary basis;
(g) become a member of any VAT group for the purposes of Section 43 of
the Value Added Tax ▇▇▇ ▇▇▇▇;
(h) waive, modify or amend, or consent to any waiver, modification or
amendment of, any of the provisions of any Transaction Document,
without the prior written consent of the Transferors and the
Security Trustee;
(i) offer to surrender to any company any amounts which are available
for surrender by way of group relief; and
(j) take any steps in its capacity as Investor Beneficiary of the
Receivables Trust either on its own or in conjunction with any
other Beneficiary of the Receivables Trust to terminate the
Receivables Trust or any Sub-trust thereof.
The Security Trustee shall be entitled to rely absolutely on a certificate
of a director of the Loan Note Issuer in relation to any matter relating
to such restrictions and to accept without liability any such certificate
as sufficient evidence of the relevant fact or matter in question.
10. INTEREST AND OTHER CALCULATIONS
10.1 INTEREST AND ACCRUAL
10.1.1 Each Loan Note bears interest on its Principal Amount Outstanding
(or as otherwise specified in the relevant Loan Note Supplement)
from the Interest Commencement Date equal to the Interest Amount,
such interest being payable in arrear (unless otherwise specified
in the relevant Loan Note Supplement) on each Payment Date (as
defined in Condition 5.5). The Interest Amount, in turn, is
calculated based on the Underlying Interest Rate.
10.1.2 The Underlying Interest Rate for each Interest Period will be
determined by the Principal Paying Agent (by reference to the
relevant Trust Cash Manager Report provided to the Principal
Paying Agent by or on behalf of the Receivables Trustee pursuant
to the relevant Loan Note Supplement) at or about the Relevant
Time on the Interest Determination Date in respect of such
Interest Period.
10.1.3 Interest will cease to accrue on each Loan Note on the due date
for redemption unless, upon due presentation, payment of principal
is improperly withheld or refused, in which event interest will
continue to accrue (as well after as before judgment) in the
manner provided in this Condition 5 to the Relevant Date.
10.2 BUSINESS DAY CONVENTION
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If any date referred to in these Conditions which is specified to be
subject to adjustment in accordance with a Business Day Convention would
otherwise fall on a day which is not a Relevant Business Day, then if the
Business Day Convention specified in such Condition is:
10.2.1 the Floating Rate Convention, such date shall be postponed to the
next day which is a Relevant Business Day unless:
(a) it would thereby fall into the next calendar month, in which
event:
(iv) such date shall be brought forward to the immediately
preceding Relevant Business Day; and
(v) each subsequent such date shall be the last Relevant
Business Day of the month in which such date is due to
fall; or
(b) there is no such numerically corresponding day in the
calendar month in which such date is proposed to fall in
which event:
(vi) such date will be the last Relevant Business Day of the
month in which such date is due to fall; and
(vii) each subsequent such date shall be the last Relevant
Business Day of the month in which such date is due to
fall;
10.2.2 the Following Business Day Convention, such date shall be
postponed to the next day which is a Relevant Business Day;
10.2.3 the Modified Following Business Day Convention, such date shall be
postponed to the next day which is a Relevant Business Day unless
it would thereby fall into the next calendar month, in which event
such date shall be brought forward to the immediately preceding
Relevant Business Day; or
10.2.4 the Preceding Business Day Convention, such date shall be brought
forward to the immediately preceding Relevant Business Day.
10.3 DETERMINATION AND PUBLICATION OF UNDERLYING INTEREST RATES, INTEREST
AMOUNTS, REDEMPTION AMOUNTS AND INSTALMENT AMOUNTS
As soon as practicable after the Relevant Time on each Interest
Determination Date or such other time on such date as the Principal Paying
Agent may be required to calculate any Redemption Amount, obtain any quote
or make any determination or calculation, determine the Underlying
Interest Rate and calculate the Interest Amounts in respect of each Loan
Notes for the relevant Interest Period, the Principal Paying Agent shall
calculate the Redemption Amount, obtain such quote or make such
determination or calculation, as the case may be, and cause the Underlying
Interest Rate and the Interest Amounts for each Interest Period and the
relevant Payment Date and, if required to be calculated, the Redemption
Amount to be notified, if the Loan Notes are listed on a stock exchange
and such exchange so requires, to such exchange as soon as possible after
their determination but in no event later than (i) the commencement of the
relevant Interest Period, if determined prior to such time, in the case of
an Underlying Interest Rate and
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Interest Amount, or (ii) in all other cases, the fourth Relevant Business
Day after such determination. The Underlying Interest Rates, Interest
Amounts and the Payment Date so published may subsequently be amended (or
appropriate alternative arrangements made by way of adjustment) without
notice in the event of an extension or shortening of the Interest Period.
If the Loan Notes become due and payable under Condition 9, the accrued
interest payable in respect of the Loan Notes shall nevertheless continue
to be calculated as previously in accordance with this Condition but no
publication of the Underlying Interest Rate or the Interest Amount so
calculated need be made unless otherwise required by the Security Trustee.
The determination of each Underlying Interest Rate, Interest Amount and
Redemption Amount, the obtaining of each quote and the making of each
determination or calculation by the Principal Paying Agent or, as the case
may be, the Security Trustee pursuant to Condition 5.6, shall (in the
absence of manifest error) be final and binding upon all parties.
10.4 INTEREST DEFERRAL
To the extent that the monies which are deposited to the Loan Note Issuer
Distribution Account for the relevant Series by the Receivables Trustee on
a Payment Date are insufficient to pay the full Interest Amount on any
Class of Loan Notes, payment of the shortfall ("DEFERRED INTEREST"), which
will be borne by each Loan Note of the relevant Class in a proportion
equal to the proportion that the Principal Amount Outstanding of the
relevant Class of Loan Note bears to the aggregate Principal Amount
Outstanding of all the Loan Notes of the same Class (in each case as
determined on the Payment Date on which such Deferred Interest arises),
will be deferred until the Payment Date thereafter on which funds are
available to the Loan Note Issuer (by being paid to the Loan Note Issuer
by the Receivables Trustee on such Payment Date) to pay such Deferred
Interest to the extent of such available funds. Such Deferred Interest
will accrue interest ("ADDITIONAL INTEREST") at the then applicable
Underlying Interest Rate plus an additional margin of 2 per cent. per
annum, and payment of any Additional Interest will also be deferred until
the earlier of the Payment Date thereafter on which funds are available to
the Loan Note Issuer to pay such Additional Interest to the extent of such
available funds and the Series Termination Date as specified in the
relevant Loan Note Supplement.
10.5 DEFINITIONS
In these Conditions, unless the context otherwise requires, the following
defined terms shall have the meanings set out below.
"CLASS A MONTHLY DISTRIBUTION AMOUNT" has the meaning specified in the
relevant Series Supplement;
"CLASS B MONTHLY DISTRIBUTION AMOUNT" has the meaning specified in the
relevant Series Supplement;
"CLASS C MONTHLY DISTRIBUTION AMOUNT" has the meaning specified in the
relevant Series Supplement;
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"CLASS A QUARTERLY FINANCE DISTRIBUTION AMOUNT" has the meaning specified
in the relevant Series Supplement;
"CLASS B QUARTERLY FINANCE DISTRIBUTION AMOUNT" has the meaning specified
in the relevant Series Supplement;
"CLASS C QUARTERLY FINANCE DISTRIBUTION AMOUNT" has the meaning specified
in the relevant Series Supplement;
"CONTROLLED ACCUMULATION PERIOD" means (unless the Regulated Amortisation
Period or the Rapid Amortisation Period has commenced) the period
commencing on the close of business on the date specified in the relevant
Series Trust Supplement or (such later date falling no later than the date
specified in the relevant Series Trust Supplement) and ending (for the
purposes of these Conditions) on the first to occur of (a) the
commencement of the Rapid Amortisation Period or Regulated Amortisation
Period and (b) the day the Investor Interest is reduced to zero;
"DISTRIBUTION DATE" means 15 May 2000 (or if such day is not a Business
Day, the next succeeding Business Day) and, thereafter, the 15th day of
each month (or if such day is not a Business Day, the next succeeding
Business Day);
"EURO" means the lawful currency of the Member States of the European
Union participating in Economic and Monetary Union;
"INTEREST AMOUNT" means the amount of interest payable on the Loan Notes
in respect of each Interest Period calculated as follows:
Y=A+B+C
where:
Y = Interest Amount applicable on the Loan Notes for the relevant
Interest Period;
(a) during any period except for the Regulated Amortisation Period
and the Rapid Amortisation Period:
A= Class A Quarterly Finance Distribution Amount attributable to
the relevant Interest Period;
B= Class B Quarterly Finance Distribution Amount attributable to
the relevant Interest Period;
C= Class C Quarterly Finance Distribution Amount attributable to
the relevant Interest Period;
(b) during the Regulated Amortisation Period or the Rapid
Amortisation Period:
A= Class A Monthly Distribution Amount attributable to the
relevant Interest Period;
B= Class B Monthly Distribution Amount attributable to the
relevant Interest Period;
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C= Class C Monthly Distribution Amount attributable to the
relevant Interest Period;
"INTEREST COMMENCEMENT DATE" means the Issue Date or such other date as
may be specified;
"INTEREST DETERMINATION DATE" means, with respect to an Interest Period,
the date specified as such in the relevant Loan Note Supplement or, if
none is so specified, the first day of such Interest Period;
"INTEREST PERIOD" means the period from (and including) the Issue Date to
(but excluding) the first Payment Date and, thereafter, from (and
including) the previous Payment Date to (but excluding) the next Payment
Date Provided, however, that with respect to an Interest Period that
commences during a Revolving Period or Controlled Accumulation Period and
ends during a Rapid Amortisation Period, such Interest Period will end on
the last day of the originally scheduled Interest Period;
"ISSUE DATE" means the date of issue of the relevant Loan Notes;
"LOAN NOTE ISSUER COSTS PAYMENT AMOUNT" means the amounts certified by the
Security Trustee as being required to pay the fees, costs, expenses,
damages, claims and liabilities (including any fees, costs, expenses,
damages, claims and liabilities of the Security Trustee and any Receiver
appointed by it and any fees, costs, expenses, damages, claims and
liabilities remaining unpaid from the previous Distribution Dates) of the
Loan Note Issuer accrued, due and payable on or before a Distribution Date
together with any VAT payable in respect thereto;
"PAYMENT DATE" means, during the Revolving Period and the Controlled
Accumulation Period until the Scheduled Redemption Date in respect of the
relevant Series of Loan Notes, 15 March, 15 June, 15 September and 15
December in each year (or if such a day is not a Business Day, the next
succeeding Business Day) and during the Regulated Amortisation Period and
the Rapid Amortisation Period, each Payment Date shall be on the same day
as a Distribution Date, provided that the first Payment Date shall be 15
June 2000 (or if such day is not a Business Day, the next succeeding
Business Day);
"PRINCIPAL AMOUNT OUTSTANDING" means in relation to a Loan Note or Series,
the original face value thereof less any repayment of principal made to
the holder(s) thereof in respect of such Loan Note or Series;
"RAPID AMORTISATION PERIOD" means the period commencing on the first day
of the monthly period next following the day on which a Pay-Out Event (not
being a Regulated Amortisation Trigger Event) is deemed to occur pursuant
to the provisions of the relevant Series Trust Supplement and ending (for
the purposes of these Conditions) on the earlier of (i) the day on which
the Receivables Trust is dissolved following the occurrence of an
Insolvency Event and (ii) the Series Termination Date specified in the
relevant Series Trust Supplement;
"REDEMPTION AMOUNT" means, unless otherwise specified in the relevant Loan
Note Supplement, in relation to a Loan Note or Series, the amount of the
original face value
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thereof less any repayment of principal made to the Loan Noteholder(s)
thereof in respect of such Loan Note or Series;
"REGULATED AMORTISATION PERIOD" means the period commencing on the day on
which a Regulated Amortisation Trigger Event (as defined in the relevant
Series Trust Supplement) is deemed to occur pursuant to the terms of the
relevant Series Trust Supplement and ending (for the purposes of these
Conditions) on the earlier of (i) the start of the Rapid Amortisation
Period and (ii) the Series Termination Date specified in the relevant
Series Trust Supplement;
"RELEVANT BUSINESS DAY" means:
(x) in the case of a specified currency (other than euro) and/or one
or more specified financial centres, a day (other than a Saturday
or a Sunday) on which commercial banks and foreign exchange
markets settle payments in London and Jersey and in the principal
financial centre for that currency and/or each of the financial
centres so specified; and/or
(xi) in the case of euro, a day on which the TARGET system is
operating;
"RELEVANT FINANCIAL CENTRE" means, with respect to any Underlying Interest
Rate to be determined on an Interest Determination Date, the financial
centre as may be specified as such or, if none is so specified, London;
"RELEVANT TIME" means, with respect to any Interest Determination Date,
the local time in the relevant Financial Centre;
"REVOLVING PERIOD" means the period from and including the Issue Date to,
but not including, the earlier of the date of commencement of (a) the
Controlled Accumulation Period, (b) the Regulated Amortisation Period and
(c) the Rapid Amortisation Period;
"SERIES TRUST SUPPLEMENT" means the supplement to the Receivables Trust
Deed and Trust Cash Management Agreement identified by a series number
corresponding to the series number for the relevant Series of Loan Notes;
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer system;
"UNDERLYING INTEREST RATE" means for each Interest Period beginning on the
Interest Determination Date (or the Issue Date, in the case of the first
Interest Period) the aggregate of:
(xii) [{circle}] per cent; and
(xiii) (A) the quote for three month sterling deposits (or three month
deposits for such other currency or currency unit as may
replace sterling as the lawful currency of the United
Kingdom) during any period other than the Controlled
Accumulation Period, the Regulated Amortisation Period or the
Rapid Amortisation Period (or for the first Interest Period,
the linear interpolated quote for two month sterling deposits
and three month sterling deposits) and the quote for one
month sterling deposits
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(or one month deposits for such other currency or currency
unit as may replace sterling as the lawful currency of the
United Kingdom) during the Controlled Accumulation Period,
the Regulated Amortisation Period or the Rapid Amortisation
Period in the London Inter-Bank market which appears on
Telerate Screen Page No. 3750 (the "SCREEN RATE") (rounded to
four decimal places with the mid-point rounded up) calculated
on the basis of the number of days in such Interest Period
and the Screen Rate) (or (i) such other page as may replace
Telerate Screen Page No. 3750 on that service for the purpose
of displaying such information or (ii) if that service ceases
to display such information, such page as displays such
information on such equivalent service (or, if more than one,
that one which is approved by the Trust Cash Manager) as may
replace the Telerate Monitor) at or about 11.00 a.m. on such
date (the "ADDITIONAL SCREEN RATE"); or
(B) if the Screen Rate is not then available for one month, three
month or four month (as the case may be) sterling deposits
(or one month, two month or three month) deposits for such
other currency unit as may replace sterling as the lawful
currency of the United Kingdom), the arithmetic mean (rounded
to four decimal) places with the mid-point rounded up) of the
rates notified to the Trust Cash Manager at its request by
each of the Reference Banks as the rate at which three month
during any period other than the Controlled Accumulation
Period, the Regulated Amortisation Period or the Rapid
Amortisation Period (and, in the case of the first Interest
Determination Date only, the linear interpolated two month
and three month and, during the Controlled Accumulation
Period, the Regulated Amortisation Period or the Rapid
Amortisation Period, one month) sterling deposits (or one
month, two month or three month deposits for such other
currency or currency unit as may replace sterling as the
lawful currency of the United Kingdom) in an amount that
represents a single transaction in that market for the same
period as that Interest Period by that Reference Bank to
leading banks in the London Inter-bank market at or about
11.00 a.m. (London time) on that date. If on any such
Interest Determination Date, two or three only of the
Reference Banks provide such offered quotations to the Trust
Cash Manager, the relevant rate shall be determined, as
aforesaid, on the basis of the offered quotations of those
Reference Banks providing such quotations. If, on any such
Interest Determination Date, only one of the Reference Banks
provides the Trust Cash Manager with such an offered
quotation, the Trust Cash Manager shall determine (in its
absolute discretion) the arithmetic mean (rounded upwards to
four decimal places) of the lending rates quoted by major
banks in London (selected by the Trust Cash Manager) at
approximately 11.00 a.m. London time on the relevant Interest
Determination Date to lending European banks for a period
equal to the relevant Interest Period and in an amount that
is representative for a single transaction in that market at
that time for loans in sterling. If no
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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 rate for the relevant Interest Period
shall be the rate in effect for the last preceding Interest
Period to which sub-paragraph (A) of the foregoing provisions
of this sub-paragraph (B) shall have applied.
10.6 DETERMINATION OR CALCULATION BY SECURITY TRUSTEE
If the Principal Paying Agent does not at any time for any reason
determine any Interest Rate (as adjusted by any applicable Margin),
Interest Amount, Redemption Amount or any other amount to be determined or
calculated by it, the Security Trustee shall determine such Interest Rate
(as adjusted by any applicable Margin), Interest Amount, Redemption Amount
or other amount as aforesaid at such rate or in such amount as in its
absolute discretion (having regard as it shall think fit to the procedures
described above, but subject to the terms of the Security Trust Deed) it
shall deem fair and reasonable in all the circumstances or, subject as
aforesaid, apply the foregoing provisions of this Condition, with any
consequential amendments, to the extent that, in its sole opinion, it can
do so and in all other respects it shall do so in such manner as it shall,
in its absolute discretion, deem fair and reasonable in the circumstances,
and each such determination or calculation shall be deemed to have been
made by the Principal Paying Agent.
11. REDEMPTION
11.1 SCHEDULED REDEMPTION
Unless the Rapid Amortisation Period or the Regulated Amortisation Period
has earlier commenced each Class of Loan Note will be redeemed on its
Scheduled Redemption Date as specified in the relevant Loan Note
Supplement. To the extent that the principal amount which is deposited to
the Series Distribution Account on the Scheduled Redemption Date in
reduction of the class of Investor Interest corresponding to any Class of
Loan Note (such amount, the "RELEVANT INVESTOR AMOUNT") is less than the
Principal Amount Outstanding on such Class of Loan Notes on the Scheduled
Redemption Date, then that Class of Loan Notes will be redeemed pro rata
to the extent of the Relevant Investor Amount and the Rapid Amortisation
Period will commence with effect from such Scheduled Redemption Date. On
each Payment Date which thereafter occurs during the Rapid Amortisation
Period, such Class of Loan Notes will be redeemed pro rata to the extent
of the principal amount which is deposited to the Loan Note Issuer
Distribution Account on such date in reduction of the corresponding Class
of Investor Interest until the earlier of (a) such time as the relevant
Class of Loan Notes has been repaid in full and (b) the relevant Series
Termination Date specified in the relevant Loan Note Supplement.
11.2 MANDATORY EARLY REDEMPTION
If the Rapid Amortisation Period or the Regulated Amortisation Period
commences in respect of any Class of Loan Notes prior to its Scheduled
Redemption Date, then on each Payment Date which thereafter occurs, such
Class of Loan Note will be redeemed pro rata to the extent of the
principal amount which is deposited on such date to the Loan Note Issuer
Distribution Account (as recorded in the relevant Series Loan Note Issuer
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Distribution Account Ledger) in reduction of the corresponding Class of
Investor Interest until the earlier of (a) such time as such Class of Loan
Notes has been repaid in full and (b) the relevant Series Termination
Date.
11.3 OPTIONAL REDEMPTION IN FULL
Upon giving not more than 60 nor less than 30 days' notice to the Security
Trustee and the Loan Noteholders in accordance with Condition 14, the Loan
Note Issuer may, following service of notice of an optional redemption
under the corresponding Notes, redeem (all but not some only) of the Loan
Notes at their then Principal Amount Outstanding together with any accrued
but unpaid interest and any Deferred Interest and Additional Interest on
any Payment Date on which the aggregate Principal Amount Outstanding of
the Loan Notes is less than 10 per cent. of the aggregate Principal Amount
Outstanding on the issue of the Loan Notes, provided that, prior to the
giving of any such notice, the Loan Note Issuer shall have provided to the
Security Trustee a certificate signed by two directors of the Loan Note
Issuer to the effect that it will have the funds, not subject to the
interest of any other person, required to redeem the Loan Notes as
aforesaid and any amounts required under the Security Trust Deed to be
paid in priority to or pari passu with the Loan Notes then outstanding.
Any certificate given by or on behalf of the Loan Note Issuer may be
relied upon by the Security Trustee and shall be conclusive and binding on
the Loan Noteholders.
11.4 FINAL REDEMPTION
If the Loan Notes of any Class have not previously been redeemed in full
pursuant to Condition 6.1, 6.2 or 6.3 above, such Class of Loan Notes will
be redeemed at their then Principal Amount Outstanding on the Final
Redemption Date together with all accrued and unpaid interest, Deferred
Interest and Additional Interest.
12. PAYMENTS
12.1 LOAN NOTES
Payments of principal (or, as the case may be, Redemption Amounts) and
interest (or, as the case may be, Interest Amounts) in respect of Loan
Notes will, subject as mentioned below, be made to the relevant registered
holder of the Loan Notes by a cheque payable in the currency in which such
payment is due drawn on, or, at the option of the Loan Noteholder by
transfer to an account specified by such Loan Noteholder.
12.2 PAYMENTS SUBJECT TO FISCAL LAWS; PAYMENTS ON LOAN NOTES
All payments are subject in all cases to any applicable fiscal or other
laws, regulations and directives, but without prejudice to the provisions
of Condition 9. No commission or expenses shall be charged to the Loan
Noteholders in respect of such payments.
12.3 APPOINTMENT OF THE PRINCIPAL PAYING AGENT AND THE REGISTRAR
The Agents and the Registrar act solely as agents of the Loan Note Issuer
and do not assume any obligation or relationship of agency or trust for or
with any Loan Noteholder. The Loan Note Issuer reserves the right at any
time to vary or terminate the appointment
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of any Agent or the Registrar, and to appoint additional or other Agents
or an additional or other Registrar, provided that the Loan Note Issuer
will at all times maintain (i) a Principal Paying Agent which shall be in
London, and (ii) a Registrar which shall be outside the United Kingdom.
12.4 NON-BUSINESS DAYS
Subject as provided in the relevant Loan Note Supplement, if any date for
payment in respect of any Loan Note is not a business day, the Loan
Noteholder shall not be entitled to payment until the next following
business day nor to any interest or other sum in respect of such postponed
payment. In this paragraph, "business day" means a day (other than a
Saturday or a Sunday) on which banks are open for presentation and payment
of debt securities and for dealings in foreign currencies in London and
Jersey.
13. TAXATION
All payments in respect of the Loan 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 Loan Note Issuer or any Paying
Agent or, where applicable, the Security Trustee is required by applicable
law to make any payment in respect of the Loan Notes subject to any
withholding or deduction for, or on account of, any present or future
taxes, duties or charges of whatsoever nature. In that event, the Loan
Note Issuer, any Paying Agent or the Security Trustee (as the case may be)
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. Neither the Loan Note Issuer, nor any Paying
Agent nor the Security Trustee will be obliged to make any additional
payments to the Loan Noteholder, in respect of such withholding or
deduction. The Loan Note Issuer or any Paying Agent may require the Loan
Noteholders to provide such certifications and other documents as required
by applicable law in order to qualify for exemptions from applicable tax
laws.
14. LOAN NOTE EVENTS OF DEFAULT
14.1 OCCURRENCE OF LOAN NOTE EVENTS OF DEFAULT
On the occurrence of any of the following events in respect of a Series
(each a "LOAN NOTE EVENT OF DEFAULT"):
14.1.1 Non-payment: the Loan Note Issuer fails to pay any amount of
principal or interest in respect of the Loan Notes on the due date
for payment thereof;
14.1.2 Breach of other obligations: the Loan Note Issuer defaults in the
performance or observance of any of its other obligations under or
in respect of the Loan Notes, the relevant Loan Note Supplement or
the Security Trust Deed and (except where such default is
incapable of remedy) such default remains unremedied for 30 days
after the Security Trustee has given written notice thereof to the
Loan Note Issuer, certifying that (save in the case of obligations
owed to The Bank of New York in any of its capacities or to its
successors or assigns) such default is, in the opinion of the
Security Trustee, materially prejudicial to the interests of the
Loan Noteholders; or
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14.1.3 Termination of Swap Agreement: the early termination, without
replacement within 30 days or such termination, of any swap
agreement entered into by the Loan Noteholder relating to payments
under the relevant Series of Notes; or
14.1.4 Unsatisfied judgment: a judgment or order for the payment of any
amount is rendered against the Loan Note Issuer and continues
unsatisfied and unstayed for a period of 30 days after the date
thereof or, if later, the date therein specified for payment; or
14.1.5 Security enforced: a secured party takes possession or a receiver,
administrative receiver, administrator, examiner, manager or other
similar officer is appointed, of the whole or any part of the
undertaking, assets and revenues of the Loan Note Issuer or an
enforcement action is begun or execution is levied against any of
the assets of the Loan Note Issuer; or
14.1.6 Insolvency etc: (i) the Loan Note Issuer becomes insolvent or is
unable to pay its debts as they fall due, (ii) an administrator or
liquidator of the Loan Note Issuer or the whole or any part of the
undertaking, assets and revenues of the Loan Note Issuer is
appointed (or application for any such appointment is made), (iii)
the Loan Note Issuer takes any action for a readjustment or
deferment of any of its obligations or makes a general assignment
or an arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its
indebtedness or any guarantee of indebtedness given by it or (iv)
the Loan Note Issuer ceases or threatens to cease to carry on all
or any substantial part of its business; or
14.1.7 Winding up etc: an order is made or an effective resolution is
passed for the winding up, liquidation or dissolution of the Loan
Note Issuer is not taken, fulfilled or as the case may be, carried
out; or
14.1.8 Failure to take action etc: any action, condition or thing at any
time required to be taken, fulfilled or done in order (i) to
enable the Loan Note Issuer lawfully to enter into, exercise its
rights and perform and comply with its obligations under and in
respect of the Loan Notes and the Related Documents or (ii) to
ensure that those obligations are legal, valid, binding and
enforceable (except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganisation or
other similar laws affecting the enforcement of the rights of
creditors generally and as such enforceability may be limited by
the effect of general principles of equity) is not taken,
fulfilled or done; or
14.1.9 Unlawfulness: it is or will become unlawful for the Loan Note
Issuer to perform or comply with any of its obligations under or
in respect of the Loan Notes or the Related Documents; or
14.1.10 Government intervention: (i) all or any substantial part of the
undertaking, assets and revenues of the Loan Note Issuer is
condemned, seized or otherwise appropriated by any person acting
under the authority of any national, regional or local government
or (ii) the Loan Note Issuer is prevented by any such
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person from exercising normal control over all or any substantial
part of its undertaking, assets and revenues,
the Security constituted by the Security Trust Deed in respect of such
Series shall immediately become enforceable (as provided in the Trust
Deed).
14.2 The Security Trustee shall not be bound to take any such proceedings or
steps as are contemplated by any provision of this Clause 9 or any other
proceedings pursuant to or in connection with the Security Trust Deed or
any relevant Loan Note Supplement, the Loan Notes or any of them or to
give any notice pursuant to Loan Note Condition 9 unless directed or
requested to do so by the Note Trustee of a particular Series and then
only if it shall have been indemnified and/or secured to its satisfaction.
14.3 Subject to the Security Trustee being requested and/or directed by the
Note Trustee of a particular Series and subject also to it having been
indemnified and/or secured to its satisfaction following the occurrence of
a Loan Note Event of Default, the Security Trustee shall be required to
demand all amounts of principal and interest owing in respect of the Loan
Notes to be paid immediately and to take such steps as it shall think fit
to enforce any security it holds in relation to a particular Series.
14.4 VARIATION OF LOAN NOTE EVENTS OF DEFAULT
The Loan Note Events of Default may be varied or amended in respect of any
Series of Loan Notes as set out in the relevant Loan Note Supplement.
14.5 REALISATION OF THE UNDERLYING ASSETS UPON REDEMPTION
In the event of the Security constituted under the Security Trust Deed
becoming enforceable, the Security Trustee shall, but in each case without
any liability as to the consequence of such action and without having
regard to the effect of, or being required to account for, such action to,
the Secured Creditors in relation to such Series, have the right to
enforce its rights under the Security Documents (including the appointment
of a receiver), in relation to the relevant Underlying Assets in relation
to such Series only, provided that the Security Trustee shall not be
required to take any action that would involve the Security Trustee in any
personal liability or expense unless previously indemnified and/or secured
to its satisfaction.
The provisions of the Security Trust Deed are expressed to apply
separately to each Series. Accordingly, the occurrence of a Loan Note
Event of Default under one Series does not per se constitute and nor does
it trigger a Loan Note Event of Default under any other Series.
15. ENFORCEMENT
(k) Only the Security Trustee may pursue the remedies available under
the Security Trust Deed, the Conditions or any of the Transaction
Documents to enforce the rights of the Secured Creditors in
relation to the Underlying Assets of the relevant Series. No
Secured Creditor of such Series is entitled to proceed
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directly against the Loan Note Issuer or any assets of the Loan
Note Issuer unless the Security Trustee, having become bound to
proceed in accordance with the terms of the Trust Deed, any Loan
Note Supplement, any Supplementary Security Document executed in
relation to the Loan Notes or the Conditions, fails or neglects to
do so within a reasonable period and such failure or neglect is
continuing. However, the Security Trustee shall not be bound to
take any action to enforce the Security or pursue the remedies
available under the Security Trust Deed, the Conditions (including
under Condition 9.2) or any of the Transaction Documents or
otherwise take any action unless it is indemnified and/or secured
to its satisfaction and has, if so required by the Conditions,
been instructed to do so by the Priority Secured Creditor or the
Loan Noteholders for the relevant series (as the case may be) in
respect of the relevant Series.
(l) After the date falling three months after the Series Termination
Date or, if earlier, realisation of the Security in respect of
such Series which has become enforceable and distribution of the
net proceeds thereof in accordance with Condition 4, neither the
Security Trustee nor any Secured Creditor in respect of such
Series may take any further steps against the Loan Note Issuer, or
any of its assets to recover any sums due but unpaid in respect of
the Loan Notes or otherwise and the relevant Related Agreement
will provide that the Counterparty may not take any further steps
against the Loan Note Issuer, or any of its assets to recover any
sums due to it but unpaid in respect of the relevant Related
Agreement in respect of such Series and all claims and all rights
to claim against the Loan Note Issuer in respect of each such sum
unpaid shall be extinguished.
(m) No Secured Creditor, nor the Security Trustee on its behalf, may
institute against, or join any person in instituting against the
Loan Note Issuer any bankruptcy, winding-up, re-organisation,
arrangement, insolvency or liquidation proceeding (except for the
appointment of a receiver and manager pursuant to the terms of the
Security Trust Deed) or other proceeding under any similar law nor
shall any of them have any claim in respect of any such sums over
or in respect of any assets of the Loan Note Issuer which are
Security for any other Series. The Secured Creditors accept and
agree that the only remedy of the Security Trustee against the
Loan Note Issuer of any Series after any of the Loan Notes in a
Series have become due and payable pursuant to Condition 9 is to
enforce the Security for the relevant Series pursuant to the
provisions of the Security Trust Deed and any Supplementary
Security Document executed in relation to such Series.
(n) The net proceeds of enforcement of the Security for the relevant
Series may be insufficient to pay all amounts due to the Secured
Creditors in respect of such Series, in which event claims in
respect of all such amounts will be extinguished.
(o) No Loan Noteholder may institute any proceedings against the Loan
Note Issuer to enforce its rights under or in respect of the Loan
Notes or the Security Trust
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Deed or any relevant Loan Note Supplement unless (1) the Security
Trustee has become bound to institute proceedings and has failed
to do so within a reasonable time and (2) the failure is
continuing. Consistent with section 316 of the TIA, each Loan
Noteholder shall have the right to institute suit for the
enforcement of payment of principal and interest in the Loan Notes
on or after the respective due dates set out in the Loan Notes.
16. PRESCRIPTION
Claims against the Loan Note Issuer for payment in respect of the Loan
Notes shall be prescribed and become void unless made within ten years (in
the case of principal) or five years (in the case of interest) from the
appropriate Relevant Date in respect thereof.
17. REPLACEMENT OF LOAN NOTES
If any Loan Note is lost, stolen, mutilated, defaced or destroyed it may
be replaced, subject to applicable laws and any relevant stock exchange
requirements, at the specified office of the Principal Paying Agent, upon
payment by the claimant of the expenses incurred in connection with such
replacement and on such terms as to evidence, security, indemnity and
otherwise as the Loan Note Issuer may require. Mutilated or defaced Loan
Notes must be surrendered before replacements will be issued.
18. MEETINGS OF LOAN NOTEHOLDERS, MODIFICATION, WAIVER, AUTHORISATION AND
SUBSTITUTION
18.1 MEETINGS OF LOAN NOTEHOLDERS
The Trust Deed contains provisions for convening joint and separate
meetings of each Class of Loan Noteholders to consider any matter
affecting their interests, including the sanctioning by an Extraordinary
Resolution of such Loan Noteholders of the relevant Class of any
modification of the Loan Notes of the relevant Class (including these
Conditions as they relate to the Loan Notes of such relevant class) or the
provisions of any of the Transaction Documents, Provided that no
modification of certain terms by the Loan Noteholders of any Class
including, inter alia, the maturity date of the Loan Notes of the relevant
Class or a modification which would have the effect of postponing any day
for payment of interest in respect of such Loan Notes, the reduction or
cancellation of the amount of principal or premium payable in respect of
such Loan Notes, the alteration of the Interest Rate in respect of the
currency of payment of such Loan Notes or any alteration of the priority
of redemption of such Loan Notes (any such modification in respect of any
such class of Loan Notes being referred to below as a "BASIC TERMS
MODIFICATION") shall be effective unless such modification is sanctioned
by an Extraordinary Resolution of the Loan Noteholders of the other
classes of Loan Notes.
The quorum at any meeting of the Loan Noteholders of any Class of Loan
Notes for passing an Extraordinary Resolution shall be one or more persons
holding or representing a clear majority of the aggregate Principal Amount
Outstanding of the Loan Notes of the relevant Class; Provided however,
that, at any meeting the business of which includes the sanctioning of a
Basic Terms Modification, the necessary quorum for passing an
Extraordinary Resolution shall be one or more persons holding or
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representing 75 per cent., or more of the aggregate Principal Amount
Outstanding of the Loan Notes of the relevant Class.
Except in the case of a Basic Terms Modification, an Extraordinary
Resolution of any Subordinated Secured Creditor shall only be effective if
the Security Trustee is of the opinion that it will not be materially
prejudicial to the interests of the Priority Secured Creditor or (if the
Security Trustee is not of that opinion) it is sanctioned by an
Extraordinary Resolution of the Priority Secured Creditor. Except in
certain circumstances, the Trust Deed imposes no such limitations on the
powers of the Priority Secured Creditor, the exercise of which will be
binding on each subordinated Secured Creditor irrespective of the effect
on their interests.
An Extraordinary Resolution passed at any meeting of the Loan Noteholders
of any Class of Loan Notes shall be binding on all Loan Noteholders of the
relevant class, whether or not they are present at the meeting. The
majority required for an Extraordinary Resolution, including the
sanctioning of the Basic Terms Modification, shall be 75 per cent. of the
votes cast on that Extraordinary Resolution.
18.2 MODIFICATION OR WAIVER
The Security Trustee may agree, without the consent of the Loan
Noteholders to (a) any modification (except a Basic Term Modification) of,
or to the waiver or authorisation of any breach or proposed breach of, the
Loan Notes including these Conditions or any Transaction Document, which
is not, in the opinion of the Security Trustee, materially prejudicial to
the interests of the Loan Noteholders or (b) any modification of the Loan
Notes (including these Conditions) or any Transaction Document, which in
the Security Trustee's opinion is to correct a manifest error or is of a
formal minor or technical nature. Any such modification, waiver,
authorisation or determination shall be binding on the Loan Noteholders
and, unless the Security Trustee agrees otherwise, any such modification
shall be notified to the Loan Noteholders in accordance with Condition 14
as soon as practicable thereafter.
18.3 SUBSTITUTION AND ADDITION
As more fully set forth in the Trust Deed (and subject to the conditions
and qualifications therein) subject to such amendment of the Trust Deed
and such other conditions as the Security Trustee may require, but without
the consent of the Loan Noteholders, the Security Trustee may also agree
to the substitution of any other body corporate in place of the Loan Note
Issuer as principal debtor under the Trust Deed and the Loan Notes and in
the case of such a substitution or addition the Security Trustee may
agree, without the consent of the Loan Noteholders, to a change of the law
governing the Loan Notes and/or the Trust Deed provided that such change
would not in the opinion of the Security Trustee be materially prejudicial
to the interests of the Loan Noteholders. Any such substitution or
addition shall be notified to the Loan Noteholders in accordance with
Condition 14 as soon as practicable thereafter.
19. NOTICES
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(a) Notices to the Loan Noteholders shall be deemed to have been duly validly
given if published in a leading English language daily newspaper published
in London (which is expected to be the Financial Times). Any such notice
shall be deemed to have been given on the date of first publication.
(b) Any notices specifying an Underlying Interest Rate, an Interest Amount, an
amount of Additional Interest or of Deferred Interest, a Redemption Amount
or a Principal Amount Outstanding shall be deemed to have been duly given
if the information contained in such notice appears on the relevant page
of the Reuters Screen, Bloomberg or such other medium for the electronic
display of data as may be approved by the Security Trustee and notified to
Loan Noteholders (the "RELEVANT SCREEN"). Any such notice shall be deemed
to have been given on the first date on which such information appeared on
the Relevant Screen. If it is impossible or impracticable to give notice
in accordance with this paragraph, then notice of the matters referred to
in this Condition shall be given in accordance with the preceding
paragraph.
20. REGISTRAR
The Registrar will act solely as agent of the Loan Note Issuer and will
not otherwise assume any obligation or duty or relationship of agency or
trust to or with the Loan Noteholders unless a Loan Note Event of Default
has occurred, when it will act as agent of the Security Trustee. Such
agreement may be amended by the parties thereto with the prior written
approval of the Security Trustee subject to its obtaining the consent of
the Loan Noteholders.
The Loan Note Issuer reserves the right at any time with the consent of
the Security Trustee to vary or terminate the appointment of the Registrar
and to appoint another Registrar outside the United Kingdom. Notice of any
termination or appointment and of any changes in specified offices will be
given to the Loan Noteholders promptly by the Issuer in accordance with
Condition 14.
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21. GOVERNING LAW
21.1 GOVERNING LAW
The Trust Deed, the relevant Loan Note Supplement, the Loan Notes and the
Agency Agreement are governed by and shall be construed in accordance with
English law save that those parts of the Trust Deed and the Loan Note
Supplement concerned with the creation, subsistence or enforcement of the
Loan Note Issuer Jersey Security Interest shall be governed by and
construed in accordance with Jersey law.
21.2 SUBMISSION TO JURISDICTION
The Loan Note Issuer has, in the Trust Deed, irrevocably agreed for the
benefit of the Secured Creditors that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with the Loan
Notes (respectively, "PROCEEDINGS" and "DISPUTES") and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF LOAN NOTEHOLDERS
1. Definitions
In this Security Trust Deed and the Conditions, the following expressions
have the following meanings:
"BASIC TERMS MODIFICATION" means any proposal which:
(a) includes the sanctioning of a modification of the date of maturity
of the Loan Notes;
(b) would have the effect of modifying any day for payment of interest
on the Loan Notes or the Rate of Interest (as defined in Condition
5.3) applicable in respect of the Loan Notes or modifying the
method of determining the same;
(c) includes reducing or cancelling (or, in the case of the Loan
Notes, increasing) the amount of principal or the rate of interest
payable in respect of the Loan Notes;
(d) would have the effect of altering the currency of payment of the
Loan Notes;
(e) would have the effect of sanctioning any such scheme or proposal
as is described in paragraph 17(i) below;
(f) would have the effect of altering the majority required to pass an
Extraordinary Resolution or the manner in which such majority is
constituted;
(g) would have the effect of altering the manner or priority of
redemption of the Loan Notes; or
(h) would have the effect of altering this proviso or the proviso to
paragraph 9 (Adjournment for want of quorum) below.
"BLOCK VOTING INSTRUCTION" means, in relation to any Meeting, a document
in the English language issued by a Registrar;
(a) certifying:
(i) that certain specified Loan 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) that each registered holder of certain specified Loan
Notes (each a "RELEVANT NOTE") or a duly authorised person
on its behalf has instructed the Registrar that the votes
attributable to each Relevant Note
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held by it are to be cast in a particular way on each
resolution to be put to the Meeting; and
in each case that, during the period of 48 hours before the time
fixed for the Meeting, such instructions may not be amended or
revoked;
(b) listing the total principal amount of the Blocked Notes and the
Relevant Notes, distinguishing for each resolution between those
in respect of which instructions have been given to vote for, or
against, the resolution; and
(c) authorising a named individual or individuals to vote in respect
of the Blocked Notes and the Relevant Notes in accordance with
such instructions;
"CHAIRMAN" means, in relation to any Meeting, the individual who takes the
chair in accordance with paragraph 7 (Chairman);
"EXTRAORDINARY RESOLUTION" means a resolution passed at a Meeting duly
convened and held in accordance with this Schedule by a majority of not
less than three quarters of the votes cast;
"FORM OF PROXY" means, in relation to any Meeting, a document in the
English language available from the Registrar signed by a Loan Noteholder
or, in the case of a corporation, executed under its seal or signed on its
behalf by a duly authorised officer and delivered to the Registrar not
later than 48 hours before the time fixed for such Meeting, appointing a
named individual or individuals to vote in respect of the Loan Notes held
by such Loan Noteholder;
"MEETING" means a meeting of Loan Noteholders (whether originally convened
or resumed following an adjourment);
"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
(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 the Meeting when it is resumed;
"RELEVANT FRACTION" means:
(a) for all business other than voting on an Extraordinary Resolution,
one tenth;
(b) for voting on any Extraordinary Resolution other than one relating
to a Basic Terms Modification, one more than half; and
(c) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, at least three quarters;
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provided, however, that, in the case of a Meeting which has resumed after
adjournment for want of a quorum, it means:
(i) for all business other than voting on an Extraordinary Resolution
relating to a Reserved Matter, the fraction of the aggregate
principal amount of the outstanding Loan Notes represented or held
by the Voters actually present at the Meeting; and
(ii) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, one third;
"VOTER" means, in relation to any Meeting, (a) a Proxy or (subject to
paragraph 4 (Record Date) below) a Loan Noteholder; provided, however,
that (subject to paragraph 4 (Record Date) below) any Loan Noteholder
which has appointed a Proxy under a Block Voting Instruction or Form of
Proxy shall not be a "VOTER" except to the extent that such appointment
has been revoked and the Registrar notified in writing of such revocation
at least 48 hours before the time fixed for such Meeting;
"WRITTEN RESOLUTION" means a resolution in writing signed by or on behalf
of all holders of Loan 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
Loan 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 Principal Paying
Agent 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 as aforesaid; and
"48 HOURS" means 2 consecutive periods of 24 hours.
2. Issue of Block Voting Instructions and Forms of Proxy
The holder of a Loan Note may require the Registrar to issue a Block
Voting Instruction by arranging (to the satisfaction of the Registrar) for
such Loan 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 Loan 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 Loan 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 Loan Note.
3. References to blocking/release of Loan Notes
Where Loan Notes are represented by a Loan Note Certificate or are held in
definitive form within a clearing system, references to the blocking, or
release, of Notes shall be
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construed in accordance with the usual practices (including blocking the
relevant account) of such clearing system.
4. Record Date
The Loan Note 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 Loan 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 Loan Note for the purposes
of such Meeting and notwithstanding any subsequent transfer of such Loan
Note or entries in the Register.
5. Convening of Meeting
The Loan Note Issuer or the Security Trustee may convene a Meeting at any
time, and the Security Trustee shall be obliged to do so subject to its
being indemnified to is satisfaction upon the request in writing of Loan
Noteholders holding not less than one tenth of the aggregate principal
amount of the outstanding Loan Notes. Every Meeting shall be held on a
date, and at a time and place, approved by the Security Trustee.
6. Notice
At least 21 days' notice (exclusive of the day on which the notice is
given and of the day on which the relevant Meeting is to be held)
specifying the date, time and place of the Meeting shall be given to the
Loan Noteholders, the Principal Paying Agent and the Agent Bank and the
Registrar (with a copy to the Loan Note Issuer) where the Meeting is
convened by the Security Trustee or, where the Meeting is convened by the
Loan Note Issuer, the Security Trustee). The notice shall set out in the
full text of any resolutions to be proposed unless the Security Trustee
agrees that the notice shall instead specify the nature of the resolutions
without including the full text and shall state that Loan 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 a Loan Noteholder may appoint a Proxy either under a Block
Voting Instruction by delivering written instructions to the Registrar or
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.
7. Chairman
An individual (who may, but need not, be a Loan Noteholder) nominated in
writing by the Security Trustee may take the chair at any Meeting but, if
no such nomination is made or if the individual nominated is not present
within 15 minutes after the time fixed for the Meeting, those present
shall elect one of themselves to take the chair failing which, the Loan
Note Issuer may appoint a Chairman. The Chairman of an adjourned Meeting
need not be the same person as was the Chairman of the original Meeting.
8. Quorum
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The quorum at any Meeting shall be one or more Voters representing or
holding not less than the Relevant Fraction of the aggregate principal
amount of the outstanding Loan Notes.
9. Adjournment for want of quorum
If within 15 minutes after the time fixed for any Meeting a quorum is not
present, then:
(a) In the case of a Meeting requested by Loan Noteholders, it shall
be dissolved; and
(b) In the case of any other Meeting (unless the Loan Note Issuer and
the Security Trustee otherwise agree), it shall be adjourned for
such period (which shall be not less than 14 days and not more
than 42 days) and to such place as the Chairman determines (with
the approval of the Security Trustee): provided however, that
(i) the Meeting shall be dissolved if the Loan Note Issuer and
the Security Trustee together so decide; and
(ii) no Meeting may be adjourned more than once for want of a
quorum.
10. Adjourned Meeting
The Chairman may, with the consent of, and shall if directed by, any
Meeting adjourn such Meeting from time to time and from place to place,
but no business shall be transacted at any adjourned Meeting except
business which might lawfully have been transacted at the Meeting from
which the adjournment took place.
11. Notice following adjournment
Paragraph 6 (Notice) shall apply to any Meeting which is to be resumed
after adjournment for want of a quorum save that:
(a) 10 days' notice (exclusive of the day on which the notice is given
and of the day on which the Meeting is to be resumed) shall be
sufficient; and
(b) the notice shall specifically set out the quorum requirements
which will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting
which has been adjourned for any other reason.
12. Participation
The following may attend and speak at a Meeting:
(a) Voters;
(b) representatives of the Loan Note Issuer and the Security Trustee;
(c) the financial advisers of the Loan Note Issuer and the Security
Trustee;
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(d) the legal counsel to the Loan Note Issuer and the Security Trustee
and such advisers.
13. Show of hands
Every question submitted to a Meeting shall be decided in the first
instance by a show of hands. Unless a poll is validly demanded before or
at the time that the result is declared, the Chairman's declaration that
on a show of hands a resolution has been passed, passed by a particular
majority, rejected or rejected by a particular majority shall be
conclusive, without proof of the number of votes cast for, or against, the
resolution.
14. Poll
A demand for a poll shall be valid if it is made by the Chairman, the Loan
Note Issuer, the Security Trustee or one or more Voters representing or
holding not less than one fiftieth of the aggregate principal amount of
the outstanding Loan Notes. The poll may be taken immediately or after
such adjournment as the Chairman directs, but any poll demanded on the
election of the Chairman or on any question of adjournment shall be taken
at the Meeting without adjournment. A valid demand for a poll shall not
prevent the continuation of the relevant Meeting for any other business as
the Chairman directs.
15. Votes
Every Voter shall have:
(a) On a show of hands, one vote; and
(b) On a poll, one vote in respect of [GBP]1 in aggregate face amount
of the outstanding Loan Note(s) represented or held by him.
Unless the terms of any Block Voting Instruction state otherwise, a Voter
shall not be obliged to exercise all the votes to which he is entitled or
to cast all the votes which he exercises in the same way. In the case of a
voting tie the Chairman shall have a casting vote.
16. Validity of Votes by Proxies
Any vote by a Proxy in accordance with the relevant Block Voting
Instruction or Form of Proxy shall be valid even if such Block Voting
Instruction or Form of Proxy or any instruction pursuant to which it was
given has been amended or revoked, provided that the Registrar has not
been notified in writing of such amendment or revocation by the time which
is 24 hours before the time fixed for the relevant Meeting. Unless
revoked, any appointment of a Proxy under a Block Voting Instruction or
Form of Proxy in relation to a Meeting shall remain in force in relation
to any resumption of such Meeting following an adjournment; provided 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.
17. Powers
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A meeting of the Loan Noteholders shall, in respect of Loan Notes of the
relevant class only and insofar as it affects Loan Notes of the relevant
class, and in addition to the powers hereinbefore given, have the
following powers exercisable by Extraordinary Resolution (subject to the
provisions relating to quorum contained in paragraph 8 above) only,
namely:
(a) power to sanction any compromise or arrangement proposed to be
made between the Loan Note Issuer and the Loan Noteholders;
(b) power to sanction any abrogation, modification (including for the
avoidance of doubt a modification which would have the effect of
increasing the amount of principal or the rate of interest payable
(in respect of the Loan Notes)), compromise or arrangement in
respect of the rights of the Loan Noteholders against the Loan
Note Issuer or against any of its property or against any other
person whether such rights shall arise under this Deed, any of the
Loan Notes or otherwise;
(c) power to assent to any modification of the provisions contained in
this Deed, the Conditions or the Loan Notes which shall be
proposed by the Loan Note Issuer or the Security Trustee;
(d) power to give any authority or sanction which under the provisions
of this Deed (including the Conditions) is required to be given by
Extraordinary Resolution;
(e) power to appointment any persons (whether Loan Noteholders or not)
as a committee or committees to represent the interests of the
Loan Noteholders and to confer upon such committee or committees
any powers or discretions which the Loan Noteholders could
themselves exercise by Extraordinary Resolution;
(f) power to approve of a person to be appointed a Security Trustee
and power to remove any Security Trustee or Security Trustees for
the time being of this Deed;
(g) power to discharge or exonerate the Security Trustee from all
liability in respect of any act or omission for which the Security
Trustee may have become responsible under this Deed or under the
Loan Notes;
(h) power to authorise the Security Trustee to concur in and execute
and do all such deeds, instruments, acts and things as may be
necessary to carry out and give effect to any Extraordinary
Resolution;
(i) power to sanction any such substitution as is referred to in
Condition 13, but without prejudice to the Security Trustee's
powers in relation thereto or any scheme or proposal for the
exchange or sale of the Loan Notes for, or the conversion of any
of the Loan Notes into, or the cancellation of any of the Loan
Notes in consideration of shares, stock, Loan Notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities of the Loan Note Issuer or of 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,
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stock, Loan Notes, bonds, debenture stock and/or other obligations
and/or securities as aforesaid and partly for or into or in
consideration of cash; and
(j) power to authorise the Security Trustee or any receiver appointed
by it where it or he shall have entered into possession of the
security to discontinue enforcement of any security constituted by
this Deed and the relevant Loan Note Supplement either
unconditionally or upon any conditions,
provided, however, that:
(i) no modification involving any Basic Modification Terms passed by
Loan Noteholders who are Priority Secured Creditors shall be
effective unless it is sanctioned by an Extraordinary Resolution
of each Class of Loan Noteholders who are Subordinated Secured
Creditors in respect of such Series;
(ii) no other Extraordinary Resolution of Loan Noteholders who are
subordinated Secured Creditors in respect of any Series shall be
effective unless (a) the Security Trustee is of the opinion that
it will not be materially prejudicial to the interests of the Loan
Noteholders who are Priority Secured Creditors of such Series, or
(b) it is sanctioned by an Extraordinary Resolution of such
Priority Secured Creditors.
18. Extraordinary Resolution binds all holders
An Extraordinary Resolution shall be binding upon all Loan Noteholders,
whether or not present at such Meeting, and each of the Loan Noteholders
shall be bound to give effect to it accordingly. Notice of the result of
every vote on an Extraordinary Resolution shall be given to the Loan
Noteholders, the Principal Paying Agent and the Agent Bank and the
Registrar (with a copy to the Loan Note Issuer and the Security Trustee)
within 14 days of the conclusion of the Meeting.
19. Minutes
Minutes of all resolutions and proceedings at each Meeting shall be made.
The Chairman shall sign the minutes, which shall be prima facie evidence
of the proceedings recorded therein. Unless and until the contrary is
proved, every such Meeting in respect of the proceedings of which minutes
have been summarised and signed shall be deemed to have been duly convened
and held and all resolutions passed or proceedings transacted at it to
have been duly passed and transacted.
20. Written Resolution
A Written Resolution shall take effect as if it were an Extraordinary
Resolution.
21. Further Regulations
Subject to all other provisions contained in this Security Trust Deed, the
Security Trustee may without the consent of the Loan Note Issuer or the
Loan Noteholders prescribe such further regulations regarding the holding
of Meetings of Loan Noteholders and attendance and voting at them as the
Security Trustee may in its sole discretion determine.
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22. Several series
The following provisions shall apply where outstanding Loan Notes belong
to more than one series:
(a) Business which in the opinion of the Security Trustee affects the
Loan Notes of only one series shall be transacted at a separate
Meeting of the holders of the Loan Notes of that series;
(b) Business which in the opinion of the Security Trustee affects the
Loan Notes of more than one series but does not give rise to an
actual or potential conflict of interest between the holder of the
Loan Notes or one such series and the holders of Loan Notes of any
other such series shall be transacted either at separate Meetings
of the holders of the Loan Notes of each such series or at a
single Meeting of the holders of the Loan Notes of all such
Series, as the Security Trustee shall in its absolute discretion
determine.
(c) Business which in the opinion of the Security Trustee affects the
Loan Notes of more than one series and gives rise to an actual or
potential conflict of interest between the holders of Loan Notes
of one such series and the holders of Loan Notes of any other such
series shall be transacted at separate Meetings of the holders of
the Loan Notes of each such series.
(d) The preceding clauses of this Schedule shall be applied as if
references to the Loan Notes and Loan Noteholders were to the Loan
Notes of the relevant series and to the holders of such Loan
Notes.
In this clause, "BUSINESS" includes (without limitation) the passing or
rejection of any resolution.
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SCHEDULE 4
NOTICE OF ASSIGNMENT
(FOR THE PURPOSES OF THE SECURITY INTERESTS (JERSEY) LAW, 1983) AS AMENDED)
(THE "JERSEY SECURITY LAW")
To: [person from whom assignor would have claimed collateral but for the
assignment]
From: RBS Cards Securitisation Funding Limited (the "LOAN NOTE ISSUER")
And From: Bank of New York, London Branch, as security trustee (the "SECURITY
TRUSTEE")
We hereby give you notice that by a Security Trust Deed relating to the Series
00-A Notes (the "SECURITY TRUST DEED") dated 27 March 2000 and made between
inter alios the Issuer (1) Bank of New York (as Note Trustee) (2) the Bank of
New York, New York Branch (as Principal Paying Agent, as Agent Bank, as
Depository and Registrar as Transfer Agent) (3) for the purposes of creating a
security interest therein in favour of the Security Trustee in accordance with
the Jersey Security Law, the Issuer has assigned the following property to the
extent that the same is situate in Jersey as at any relevant time to the
Security Trustee:
[specify relevant property for the addressee]
(the "ASSIGNED PROPERTY")
We irrevocably and unconditionally authorise and instruct you (notwithstanding
any previous instructions of any kind which the Issuer may have given to you) to
disclose to the Security Trustee such information relating to the Assigned
Property as it may from time to time require.
This notice may not be varied or revoked without the prior consent of the
Security Trustee.
We shall be grateful if you will sign and forward to the Note Trustee the
enclosed form of acknowledgement.
Terms used in this notice shall have the same meaning as in the Security Trust
Deed unless otherwise defined in this notice or the context requires otherwise.
This notice shall be governed by and construed in accordance with the laws of
Jersey.
Date: [{circle}]
-------------------------------------- --------------------------------------
For and on behalf of the Issuer as For and on behalf of the Security
assignor under the Deed of Charge and Trustee as secured party under the
as debtor for the purposes of the Security Trust Deed and for the
Jersey Security Law purposes of the Jersey Security Law
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ACKNOWLEDGEMENT
To: The Bank of New York, London Branch
From: The Royal Bank of Scotland International Limited
We hereby acknowledge receipt of a notice (the "NOTICE") dated 27 March 2000
addressed to us by you and RBS Cards Securitisation Funding Limited.
We confirm that we accept the authorisations and instructions contained in the
Notice and we undertake to act in accordance and comply with the terms of the
Notice.
Terms used herein shall unless the context requires otherwise have the same
meaning as in the Notice.
This acknowledgement shall be governed by and construed in accordance with the
laws of Jersey.
Date 27 March 2000
------------------------------------------------
For and on behalf of
The Royal Bank of Scotland International Limited
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EXECUTION
LOAN NOTE ISSUER
Executed as a deed by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
RBS CARDS SECURITISATION )
FUNDING LIMITED )
acting by a director ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇ )
PROCESS AGENT
▇▇▇▇▇▇▇▇ CHANCE SECRETARIES LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TRANSFEROR
Executed as a deed by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE ROYAL BANK OF )
SCOTLAND PLC )
acting by its duly authorised attorney ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇ )
TRANSFEROR
Executed as a deed by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
RBS ADVANTA )
acting by its duly authorised attorney ) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇ )
SECURITY TRUSTEE AND PRINCIPAL PAYING AGENT
Executed as a deed by ▇▇▇ ▇▇▇▇▇▇▇ acting ) /s/ ▇▇▇ ▇▇▇▇▇▇▇
as attorney-in-fact for and on behalf of ) ▇▇▇ ▇▇▇▇▇▇▇
THE BANK OF NEW YORK, )
LONDON BRANCH )
in the presence of: ▇▇▇ ▇▇▇▇▇▇▇ )
Name: ▇▇▇ ▇▇▇▇▇▇▇
Occupation: Solicitor
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
- ▇▇▇ -
▇▇▇▇▇▇▇▇▇▇▇ TRUSTEE
Executed as a deed by ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
SOUTH GYLE RECEIVABLES )
TRUSTEE LIMITED )
acting by a director ) ▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇ )
PROCESS AGENT
▇▇▇▇▇▇▇▇ CHANCE SECRETARIES LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
REGISTRAR
Executed as a deed by ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND )
INTERNATIONAL LIMITED )
acting by its authorised signatory ) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
in the presence of: ▇▇▇▇▇ ▇▇▇▇▇ )
PROCESS AGENT
▇▇▇▇▇▇▇▇ CHANCE SECRETARIES LIMITED
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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