▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
TURQUOISE CARD BACKED SECURITIES PLC
as Issuer
LAW DEBENTURE TRUST COMPANY OF NEW YORK
as Note Trustee
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TURQUOISE FUNDING NOTE TRUST DEED
RELATING TO
TURQUOISE FUNDING MEDIUM TERM NOTE
PROGRAMME
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CONTENTS
CLAUSE PAGE
1. Interpretation..........................................................1
2. Amount And Issue Of The Series Of Notes.................................2
3. Covenant To Pay.........................................................6
4. Security................................................................9
5. Note Trustee's Powers..................................................11
6. Appointment And Removal Of Receiver And Administrator..................12
7. Provisions Relating To Receiver........................................13
8. The Note Certificates..................................................18
9. Covenants..............................................................18
10. Amendments And Substitution............................................19
11. Enforcement............................................................23
12. Application Of Moneys..................................................26
13. Further Assurances.....................................................27
14. Terms Of Appointment...................................................27
15. Costs And Expenses.....................................................41
16. Appointment And Retirement.............................................45
17. Certificates And Opinions..............................................48
18. Release Of Security....................................................48
19. Third Party Beneficiaries..............................................50
20. Actions By Noteholders.................................................50
21. TIA Prevails...........................................................51
22. Communications By Noteholders With Other Noteholders...................51
Schedule 1 TERMS AND CONDITIONS OF THE NOTES........................52
Schedule 2 .........................................................53
Part A Form Of Rule 144A Global Note Certificate................53
Part B Form Of Regulation S Global Note Certificate.............62
Part C Form Of Sec-Registered Global Note Certificate...........71
Schedule 3 .........................................................80
Part A Form Of Rule 144A Individual Note Certificate............80
Part B Form Of Regulation S Individual Note Certificate.........87
Part C Form Of SEC-Registered Individual Note Certificate.......94
Schedule 4 PROVISIONS FOR MEETINGS OF NOTEHOLDERS...................99
Schedule 5 FORM OF TRANSFER CERTIFICATE............................108
Part A Form Of Regulation S Transfer Certificate...............108
Part B Form Of SEC-Registered Transfer Certificate.............112
EXECUTION CLAUSES ...........................................................115
THIS NOTE TRUST DEED is made on 23 May 2006.
BETWEEN:
(1) TURQUOISE CARD BACKED SECURITIES PLC, a public limited company
incorporated in England and Wales with registered number 5506646 and
whose registered office is at c/o Wilmington Trust Services SP (London)
Limited Tower 42 (Level 11), ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"ISSUER"); and
(2) LAW DEBENTURE TRUST COMPANY OF NEW YORK, acting through its New York
branch whose principal place of business is at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as note trustee (the "NOTE TRUSTEE"),
which expression shall include such company and all other persons for
the time being acting as the trustee or trustees under this Note Trust
Deed.
WHEREAS
(A) The Issuer has authorised the establishment of the Programme.
(B) Notes up to the Programme Limit may be issued pursuant to the Programme.
(C) Each Series of Notes issued in accordance with the Programme will be
constituted and secured by this Note Trust Deed and the relevant Note
Trust Deed Supplement executed on or about the relevant Issue Date.
(D) The Note Trustee has agreed to act as trustee of the Security Documents
for each Series and to hold the Security on trust for the Secured
Creditors on the terms and conditions contained in this Note Trust Deed
and any relevant Note Trust Deed Supplement.
NOW THIS DEED WITNESSES AND IT IS HEREBY DECLARED AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
Unless otherwise defined in this Note Trust Deed or the context requires
otherwise, words and expressions used in this Note Trust Deed have the
meanings and constructions ascribed to them in the Master Definitions
Schedule set out in Schedule 1 of the Issuer Master Framework Agreement
which is dated on or about the date of this Note Trust Deed and signed
for the purpose of identification by, amongst others, each of the
parties to this Agreement.
1.2 INCORPORATION OF COMMON TERMS
Except as provided below, the Common Terms apply to this Note Trust
Deed, where applicable, and shall be binding on the parties to this Note
Trust Deed and the Noteholders as if set out in full in this Note Trust
Deed.
1.3 AMENDMENT TO COMMON TERMS
The Common Terms are, for the purposes of this Note Trust Deed, amended
as follows:
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Paragraph 1 (Further Assurance) of the Common Terms applies to this Note
Trust Deed as if set out in full in this Note Trust Deed, and as if the
Issuer were the Obligor (as defined therein) and the Note Trustee were
the Obligee (as defined therein).
1.4 CONFLICT WITH COMMON TERMS
If there is any conflict between the provisions of the Common Terms and
the provisions of this Note Trust Deed, the provisions of this Note
Trust Deed shall prevail, save for where any provision of this Note
Trust Deed relates to VAT, in which case the provisions of the Common
Terms shall prevail.
1.5 GOVERNING LAW AND JURISDICTION
This Note Trust Deed and all matters arising from or connected with it
shall be governed by English law in accordance with Paragraph 26
(Governing Law) of the Common Terms with the amendment that, if this
Note Trust Deed is a "qualified" indenture for the purposes of the TIA,
this Note Trust Deed shall be subject to the provisions of the TIA that
are required to be part of this Note Trust Deed and shall, to the extent
applicable, be governed by such provisions. Paragraph 27 (Jurisdiction)
of the Common Terms applies to this Note Trust Deed as if set out in
full in this Note Trust Deed.
1.6 REPRESENTATIONS AND WARRANTIES
The Issuer gives certain representations and warranties to the Note
Trustee on the terms set out in the Issuer Warranties.
1.7 COVENANTS
The Issuer covenants with the Note Trustee on the terms of the Issuer
Covenants.
2. AMOUNT AND ISSUE OF THE SERIES OF NOTES
2.1 ISSUANCE IN SERIES
The Issuer shall be at liberty from time to time (but subject always to
the provisions of this Note Trust Deed) without the consent of the
Noteholders or any Secured Creditor to create and (subject to the
conditions precedent in 2.2 (Issue of Notes)) issue new Series of Notes
upon such terms as to ranking, interest, conversion, redemption and
otherwise as the Issuer may at the time of issue of such Series
determine, provided that such Series of Notes are not consolidated, and
do not form a single Series with any existing Series. A Series of Notes
shall be secured on, and only on, such Secured Property as may be
specified as applicable to such Series in this Note Trust Deed and in
the Note Trust Deed Supplement constituting such Series of Notes. The
aggregate principal amount of Notes outstanding from time to time may
not exceed the Programme Limit.
2.2 CONSTITUTION OF NOTES
The Notes of any Series which are to be created and issued pursuant to
the provisions of Clause 2.1 (Issuance in Series) shall be constituted
pursuant to a Note Trust Deed Supplement.
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On any Issue Date, the Issuer shall procure the registration in the
applicable Register of the relevant Note(s) in the name of each relevant
initial Noteholder, upon receipt by the Note Trustee of the following:
2.2.1 an executed Note Trust Deed Supplement (duly stamped or
denoted with any applicable stamp duties or other
documentation taxes) in respect of the Series of Notes to be
issued satisfying the criteria set out in Clause 2.3 below and
specifying the Principal Terms (as defined below) of such
Series and the supplements, amendments and variations to this
Note Trust Deed as a consequence thereof;
2.2.2 a certificate signed by one director of the Issuer certifying
the absence of any Event of Default or Potential Event of
Default and that the Programme Limit will not be exceeded by
the issue of the Notes in question;
2.2.3
(a) a legal opinion addressed to the Note Trustee from
English counsel (in form and substance satisfactory to
the Note Trustee, acting reasonably) regarding the
capacity of the Issuer;
(b) legal opinions addressed to the Note Trustee as are
given by English counsel (in a form and substance
satisfactory to the Note Trustee, acting reasonably)
regarding the legality, validity, enforceability and
binding nature of such Note Trust Deed Supplement; and
(c) legal opinions addressed to the Note Trustee as are
given from such other counsel and jurisdiction (in a
form and substance satisfactory to the Note Trustee,
acting reasonably) regarding the legality, validity and
enforceability of any Secured Property located outside
of England and Wales;
2.2.4 a solvency certificate signed by a duly authorised signatory
and dated the Issue Date, from the Issuer;
2.2.5 the Loan Note Supplement, the relevant Swap Documents (where
` applicable) and any other relevant document in respect of the
Series of Notes; and
2.2.6 if provided, an affirmation from each relevant Rating Agency
pursuant to Clause 2.3.2 below.
2.3 NOTE TRUST DEED SUPPLEMENT
2.3.1 A Note Trust Deed Supplement shall be executed in order to
effect each issuance of a Series of Notes and to create
security over the relevant Secured Property relating to such
Series of Notes and such Note Trust Deed Supplement shall:
(i) be executed by the Issuer, the Note Trustee, the
Principal Paying Agent, the Agent Bank, the Paying
Agent, and, where applicable, the Swap Counterparty and
any other party to such Note Trust Deed Supplement;
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(ii) set out the consent of the Note Trustee to such issue of
the Series of Notes which shall be deemed to be given by
its execution of the relevant Note Trust Deed
Supplement;
(iii) constitute, upon the issuance of the relevant Series of
Notes, a supplement by the Issuer and the Note Trustee
to this Note Trust Deed which, in respect of such Series
of Notes, shall thereafter be read and construed as
supplemented, amended and varied by such Note Trust Deed
Supplement;
(iv) set out the principal terms of such Series of Notes (all
such terms the "PRINCIPAL TERMS") which shall include,
without limitation, the following:
(1) the Principal Amount Outstanding of the Notes
of such Series upon their issuance;
(2) the Secured Property for such Series;
(3) the Issue Date;
(4) the names of any accounts or ledgers to be used
in relation to such Series of Notes and the
terms governing the operation of any such
accounts or ledgers and use of monies therein;
(5) the priority of payments prior to enforcement;
(6) any additional Secured Creditors;
(7) the terms governing any deposit into any
account provided for such Series; and
(8) any other relevant terms of such Series.
2.3.2 Where each Ratings Agency which is then rating any outstanding
Notes of any other Series (in this Clause only, the "OTHER
NOTES") has, in connection with the execution of the Note
Trust Deed Supplement and the issue of the Notes of the
related Series, given written affirmation that such actions
will not result in such Rating Agency reducing or withdrawing
its then current underlying rating on the Other Notes (in this
Clause only, a "RATING AFFIRMATION"), the Issuer and the Note
Trustee, in considering whether such actions are materially
prejudicial to the rights benefits and interests of the
Secured Creditors of any other Series (in this Clause only,
the "NO MATERIAL PREJUDICE TEST"), shall be entitled to take
into account such Rating Affirmation, provided that the Issuer
and the Note Trustee shall continue to be responsible for
taking into account, for the purpose of the No Material
Prejudice Test, such other matters as they consider to be
relevant to such No Material Prejudice Test.
2.3.3 Each Secured Creditor, by its execution of a Note Trust Deed
Supplement, or in the case of a Noteholder, by the purchase of
the relevant Notes subject to the relevant Conditions,
consents and confirms that the security trust constituted for
the benefit of the relevant Secured Creditor or Noteholder
under this Note Trust Deed and any Note Trust
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Deed Supplement may be supplemented, amended and varied from
time to time in accordance with the terms of this Note Trust
Deed, the Conditions and any such additional Note Trust Deed
Supplement.
2.4 PAYMENTS IN SPECIFIED CURRENCY
2.4.1 All payments in respect of, under and in connection with this
Note Trust Deed and the Notes to a Noteholder shall be made in
the relevant currency as required by the Conditions. All other
sums payable shall be payable in Sterling provided that:
(i) each payment in respect of costs shall be made in the
currency in which the same were incurred; and
(ii) each payment which is expressed herein to be payable in
another currency shall be made in that other currency.
2.4.2 On each date upon which this Note Trust Deed or any Note Trust
Deed Supplement requires an amount to be paid by or on behalf
of any party to the Issuer, such party shall, save as
expressly provided otherwise herein or in such Note Trust Deed
Supplement, make the same available to the Issuer by payment
in Sterling and in immediately available funds to such account
and bank in London as the Issuer shall have specified in
writing for this purpose no later than midday on the day that
such amount becomes payable.
2.5 FEES APPLY TO EACH SERIES
2.5.1 The provisions in the Security Documents concerning costs,
expenses, fees, remuneration and other financial obligations
(whether arising under indemnities or otherwise) shall, save
as specifically provided herein, apply separately to each
Series in respect of the costs, expenses, fees, remuneration
and financial obligations which arise in respect of such
Series. No such amount incurred in respect of any Series will,
save as specifically provided herein, be deducted from any
amount payable to the Noteholders in respect of any other
Series, nor will any such amount be in any other way charged
to any other such Noteholders. The provisions of the Security
Documents shall be read accordingly.
2.5.2 If the Note Trustee determines in its sole discretion that any
such amounts cannot be considered to be solely referable to a
particular Series, it shall be entitled in its sole discretion
to allocate such amounts between such Series as it shall
consider, those amounts to be referable pro rata in the
proportion which the aggregate Principal Amount Outstanding of
all Notes in respect of each such Series bears to the
aggregate Principal Amount Outstanding of all Notes of all
such Series (as at the date such amounts were incurred) in
respect of which such amounts were incurred as a whole.
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2.6 RELATED AGREEMENTS
In relation to each Series, if specified in the relevant Note Trust Deed
Supplement, the Issuer may enter into one or more Swap Agreements or
other related agreements with a Swap Counterparty, under which the
Issuer will make payments to such Swap Counterparty and the Swap
Counterparty will make payments to the 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
Note Trust Deed Supplement, unless terminated earlier in accordance with
its terms.
3. COVENANT TO PAY
3.1 COVENANT TO PAY
The Issuer covenants with the Note Trustee that it shall, as and when
any Series becomes due to be redeemed or any principal of any Series
becomes due to be repaid in accordance with the Conditions in respect of
such Series, unconditionally pay or procure to be paid to or to the
order of or for the account of the Note Trustee in immediately available
freely transferable funds in the relevant currency the principal amount
of the Series or any of them becoming due for payment on that date and
shall (subject to the provisions of the Conditions), until all such
payments (both before and after judgment or other order) are duly made,
unconditionally pay or procure to be paid to or to the order of the Note
Trustee as aforesaid on the dates provided for in the Conditions
interest on the Principal Amount Outstanding (or such other amount as
may be specified in the relevant Note Trust Deed Supplement) of the
Notes and any Deferred Interest and Additional Interest or any of such
amounts attributable to such Series outstanding from time to time as set
out in the Conditions PROVIDED THAT:
3.1.1 every payment of principal or interest in respect of such
Notes or any of them made to the Principal Paying Agent in the
manner provided in the Agency Agreement shall satisfy, to the
extent of such payment, the relevant covenant by the Issuer
contained in this Clause 3 except to the extent that there is
a default in the subsequent payment thereof to the relevant
Noteholders in accordance with the Conditions;
3.1.2 if any payment of principal or interest in respect of such
Notes or any of them is made after the due date, payment shall
be deemed not to have been made until either the full amount
is paid to the relevant Noteholders or, if earlier, the
seventh day after notice has been given to the relevant
Noteholders in accordance with the Conditions that the full
amount has been received by the Principal Paying Agent or the
Note Trustee except, in the case of payment to the Principal
Paying Agent to the extent that there is failure in the
subsequent payment to the Noteholders under the Conditions;
and
3.1.3 in any case where payment of the whole or any part of the
principal amount due in respect of any Note is improperly
withheld or refused interest shall accrue on the whole or such
part of such principal amount from the date of such
withholding or refusal until the date either on which such
principal amount due
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is paid to the relevant Noteholders or, if earlier, the
seventh day after which notice is given to the relevant
Noteholders in accordance with the Conditions that the full
amount payable in respect of the said principal amount is
available for collection by the relevant Noteholders provided
that on further due presentation of the relevant Note, or, (if
so provided for the Conditions) the relevant Note Certificate,
such payment is in fact made.
3.1.4 MAXIMUM PAYMENTS
No provision contained in the Conditions or the Security
Documents will require the Issuer to pay:
(a) an amount of principal in respect of a Note which
exceeds the Principal Amount Outstanding of such Note;
or
(b) an amount of interest calculated on any principal amount
in excess of such Principal Amount Outstanding;
in each case, at the relevant time.
The Note Trustee will hold the benefit of this covenant and the covenant
in Clause 9.1 (Covenant to comply with the Note Trust Deed) on trust for
itself and for the benefit of the Noteholders and the other Secured
Creditors in accordance with its and their respective interests.
3.2 PAYMENTS TO SECURED CREDITORS
The Issuer hereby covenants to pay to the Note Trustee all amounts due
to the Secured Creditors of a Series in accordance with the order of
priority of payments prior to and post enforcement of the Security in
respect of that Series as set out in the relevant Note Trust Deed
Supplement, in the paragraph headed Application of Proceeds Upon
Enforcement in Condition 5 of the Conditions and Clause 12 (Application
of Moneys) and any other amounts payable by the Issuer hereunder which
the Note Trustee determines in its sole discretion are referable or
allocable to a Series (the "SECURED OBLIGATIONS") 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 Note Trustee shall hold the benefit of this
covenant in relation to each Series on trust for itself and each other
Secured Creditor of such Series according to its and their respective
interests. For the avoidance of doubt, nothing in this Note Trust Deed
shall prevent the Issuer from creating security pursuant to a Note Trust
Deed Supplement over specific assets in relation to a Series in favour
of a specific sub-group of Secured Creditors or in respect of Secured
Obligations in relation to such Series. Subject as provided in the
relevant Note Trust Deed Supplement, the provisions of this Note Trust
Deed shall, where the context permits, apply to any such Security
mutatis mutandis as if it were Secured Property created in respect of
Secured Obligations owed to Secured Creditors hereunder.
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3.3 DUTIES AND TAXES
Subject to Clause 22 of the Common Terms, the Issuer shall pay all
stamp, registration and other similar taxes and duties (if any)
(including any interest and penalties thereon or in connection
therewith) which are payable in the United Kingdom or the United States
upon or in connection with the execution and delivery of this Note Trust
Deed and any Note Trust Deed Supplement, and the Issuer will indemnify
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 (excluding, for the avoidance of
doubt, VAT which shall be dealt with in accordance with Clause 22 of the
Common Terms) paid by any such Indemnified Party in any such
jurisdiction or jurisdictions in connection with any action taken by
such Indemnified Party to enforce the obligations of the Issuer under
this Note Trust Deed or any Note Trust Deed Supplement in respect of
such Series.
3.4 COVENANT OF COMPLIANCE
The Issuer covenants with the Note Trustee separately in respect of each
Series that it will comply with, perform and observe all the provisions
of this Note Trust Deed and the relevant Note Trust Deed Supplement
relating to such Series which are expressed to be binding on it in
respect of such Series. The Conditions in respect of each Series shall
be binding on the Issuer and the Noteholders of such Series. The Note
Trustee shall be entitled to enforce the obligations of the Issuer under
the Documents in respect of a Series by reason of the security interests
granted in its favour pursuant to Clause 4 (Security).
3.5 ONLY NOTE TRUSTEE TO ACT
For any Series, only the Note Trustee, subject to it being indemnified
and/or secured to its satisfaction, shall pursue the remedies available
under the general law or under this Note Trust Deed to enforce the
rights under this Note Trust Deed or any relevant Note Trust Deed
Supplement of the Secured Creditors relating to such Series. No Secured
Creditor relating to such Series shall be entitled to proceed directly
against the Issuer or the assets of the Issuer to enforce the
performance of any of the provisions of this Note Trust Deed, any
relevant Note Trust Deed Supplement or any other Documents (if any)
relating to such Series unless the Note Trustee having become bound in
accordance with Clause 11.2, fails or neglects to do so within a
reasonable period of time and such failure or neglect is continuing.
3.6 FOLLOWING AN EVENT OF DEFAULT
At any time after any Event of Default or Potential Event of Default
shall have occurred, which has not been waived by the Note Trustee or
remedied to its satisfaction, the Note Trustee may:
3.6.1 by notice in writing to the Issuer, the Principal Paying Agent
and the other Agents require the Principal Paying Agent and
the other Agents or any of them:
(a) to act thereafter, until otherwise instructed by the
Note Trustee, as Agents of the Note Trustee under the
provisions of this Note Trust Deed on the
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terms provided in the Agency Agreement (with
consequential amendments as necessary and save that the
Note Trustee's liability under any provisions thereof
for the indemnification, remuneration and payment of
out-of-pocket expenses of the Agents shall be limited to
amounts for the time being held by the Note Trustee on
the trusts of the Security Documents in relation to the
Notes on the terms of this Note Trust Deed and available
to the Note Trustee for such purpose) and thereafter to
hold all Notes and all sums, documents and records held
by them in respect of Notes on behalf of the Note
Trustee; and/or
(b) to deliver up all Note Certificates and all sums,
documents and records held by them in respect of Note
Certificates to the Note Trustee or as the Note Trustee
shall direct in such notice PROVIDED THAT such notice
shall be deemed not to apply to any document or record
which the relevant Agent is obliged not to release by
any law or regulation; and
3.6.2 by notice in writing to the Issuer require the Issuer to make
all subsequent payments in respect of Note Certificates to or
to the order of the Note Trustee and, with effect from the
issue of any such notice until such notice is withdrawn, then
(so far as it concerns payments by the Issuer) Clause 12.4
(Payments to Noteholders) shall cease to have effect.
3.7 INTEREST ON THE FLOATING RATE NOTES FOLLOWING EVENT OF DEFAULT
If the Floating Rate Notes become immediately due and repayable under
Condition 11, the rate and/or amount of interest payable in respect of
them will be calculated at the same intervals in accordance with
Condition 7 as if such Notes had not become due and repayable, the first
of which will commence on the expiry of the Interest Period during
which the Notes become so due and repayable in accordance with
Conditions 7 and 11 (with consequential amendments as necessary) except
that the Interest Rate need not be published.
3.8 SEPARATE SERIES
Each Series of Notes constituted by a Note Trust Deed Supplement shall
form a separate Series of Notes and accordingly, unless for any purpose
the Note Trustee in its absolute discretion shall otherwise determine,
all the provisions of this Note Trust Deed shall apply mutatis mutandis
separately and independently to each Series and in such Clauses and
Schedules the expressions "NOTES" and "NOTEHOLDERS" shall be construed
accordingly.
4. SECURITY
4.1 CREATION OF SECURITY
The Issuer, with full title guarantee and as continuing security for all
the moneys and other Liabilities payable or owing by it under the
Security Documents in respect of all Series issued by it, hereby:
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4.1.1 assigns absolutely by way of first fixed security to the Note
Trustee as trustee for itself and on trust for the other
Secured Creditors all of the Issuer's right, title and
interest in and to, and the entire benefit of, the Issuer
Master Framework Agreement, the Agency Agreement and the
Issuer Distribution Account Bank Agreement (and sums received
or recoverable thereunder (save to the extent they constitute
Jersey Assets)); and
4.1.2 charges to the Note 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 Note Trust Deed or
any Note Trust Deed Supplement relating to any Series (save to
the extent they constitute Jersey Assets) and paragraph 14 of
Schedule B1 to the Insolvency ▇▇▇ ▇▇▇▇ applies to the floating
charge created pursuant hereto;
and the Note Trustee shall hold the benefit of the security created by
the assignment and charge pursuant to this Clause 4.1 on trust for
itself, the Noteholders and the other 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 11
(Enforcement).
4.2 ADDITIONAL SECURITY
Additional security in respect of each Series or (provided that the Note
Trustee consents to the same) in respect of any transaction entered into
by the Issuer relating to or connected with any arrangement for the
issue of any Notes may be created by or pursuant to this Note Trust Deed
and the Note Trust Deed Supplement relating to such Series.
4.3 PROVISIONS RELATING TO SECURITY
The following provisions of this Clause 4 shall apply to the Security
except as may be otherwise specified in the Security Documents.
4.4 Notwithstanding the Security, the Note Trustee acknowledges that,
until it delivers an Enforcement Notice in accordance with Clause 11
(Enforcement):
4.4.1 payments becoming due to the Issuer under any of the
Documents, together with all other monies payable to the
Issuer pursuant to any other documents or arrangements to
which it is a party, may be made to the Issuer in accordance
with the provisions of the relevant Documents or (as the case
may be) the documents or arrangements concerned;
4.4.2 the Issuer may, subject to Clause 4.4.3, exercise its rights,
powers and discretions and perform its obligations in relation
to the relevant Secured Property and under the Documents in
accordance with the provisions of the Documents or (as the
case may be) such other documents or arrangements; and
4.4.3 amounts standing to the credit of any Issuer Distribution
Account from time to time may be withdrawn therefrom by the
Issuer, but only in accordance with the terms of this Note
Trust Deed and any relevant Note Trust Deed Supplement.
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4.5 RIGHTS OF SECURED CREDITORS
The entitlement of any Secured Creditor (other than the Note Trustee and
any Receiver appointed by it) to the relevant Secured Property for a
given Series of Notes, unless otherwise specified herein, shall be
specified in the relevant Note Trust Deed Supplement. If the relevant
Note Trust Deed Supplement specifies that any additional party is to be
a Secured Creditor of the Secured Property in relation to such Series,
the beneficial entitlement of such additional Secured Creditor to a
security interest in the relevant Secured Property shall be specified in
the relevant Note Trust Deed Supplement.
4.6 LIMITATIONS ON NOTE TRUSTEE'S LIABILITY
The Note Trustee shall not be responsible for, nor shall it have any
liability with respect to, any loss or theft of any Secured Property or
any defect in title to any of the Secured Property, shall not be obliged
to insure, to perfect title to or to procure the insurance of any
Secured Property and shall have no responsibility or liability arising
from the fact that any Secured Property is registered in its name or
held by it or in an account with Euroclear, Clearstream or DTC or any
similar clearing system in accordance with the system's rules or is
otherwise held in safe custody by any bank or custodian selected by the
Note Trustee.
5. NOTE TRUSTEE'S POWERS
5.1 EXTENSION AND VARIATION OF LPA POWERS
For any Series, any time upon or after any part or parts of the Security
becomes enforceable, the Note Trustee may (subject in the case of the
Issuer Jersey Security Interest to the provision of the Jersey Security
Interests Law), from time to time:
5.1.1 enter into, make, execute, sign and do all such contracts,
agreements, receipts, payments, assignments, transfers,
conveyances, assurances and things and bring, prosecute,
enforce, defend and abandon all such actions, suits and
proceedings in relation to any Secured Property as it may
think expedient;
5.1.2 exercise all or any of the powers or rights incidental to the
ownership of all or any of the Secured Property and, in
particular but without limiting the generality of the
foregoing, exercise all rights to enforce the Security against
the Secured Property and all rights to attend or vote at any
Meeting of the holders of any Secured Property or to give any
consent or notification or make any declaration in relation to
such securities or any of them;
5.1.3 without prejudice to the generality of the foregoing, exercise
all or any of the powers or rights of the Issuer under or
pursuant to any Secured Property;
5.1.4 without prejudice to the generality of the foregoing, if in
its absolute discretion it is of the opinion that the
interests of the Noteholders and any other Secured Creditors
will not be materially prejudiced thereby, agree to the
transfer of any Secured Property to an account with Euroclear,
Clearstream or DTC or any similar clearing system or the
holding thereof in safe custody by the Note
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Trustee or by a bank or custodian selected by the Note Trustee
(and shall not incur any liability by doing so);
5.1.5 demand, ▇▇▇ for or take any action or institute any
proceedings to recover or obtain payment of any amounts which
may then be due and payable but which remain unpaid under or
in respect of the Secured Property or any part thereof either
in its own name or in the name of the Issuer and shall not be
liable by so doing; and
5.1.6 without prejudice to the generality of the foregoing, act
generally in relation to the Secured Property in such manner
as it may think expedient.
6. APPOINTMENT AND REMOVAL OF RECEIVER AND ADMINISTRATOR
6.1 APPOINTMENT AND REMOVAL OF RECEIVER
6.1.1 Subject to Clause 6.1.2 below, at any time after all or part
of the Security in relation to any one or more Series of Notes
issued by the Issuer has become enforceable in accordance with
the Conditions, the Note Trustee may by writing appoint any
person or persons to be a Receiver of the Secured Property
(save to the extent it comprises Jersey Assets) 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.
6.1.2 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 Issuer, the Note
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
(save to the extent it comprises Jersey Assets) in relation to
all Series of Notes outstanding and issued by the Issuer and
in relation to the floating charge created pursuant to Clause
4 (Security) subject to the immediately following sentence.
The Note Trustee shall only give a notice of crystallisation
in respect of the floating charge and/or appoint an
administrative receiver thereunder or enforce its rights under
the Issuer Jersey Security Interest if it has been instructed
so to do by the Noteholders for each outstanding Series and
has been indemnified and/or secured to its satisfaction for
its costs of so doing. Subject in the case of the Issuer
Jersey Security Interest to Article 8(6)(b) of the Jersey
Security Interests Law, any proceeds of enforcement of the
Issuer Jersey Security Interest or the floating charge shall
be distributed amongst the Secured Creditors of the relevant
Series pro rata in the proportion which the aggregate
Principal Amount Outstanding of all Notes in respect of each
such Series bears to the Aggregate Principal Amount
Outstanding of all Notes of all such Series (as at the date
such monies were received) in respect of which such monies
were received (unless, in relation to any Series, the relevant
Note Trust Deed Supplement specifies that any such Series
shall be subordinated to any other Series).
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6.1.3 For the purposes of the Issuer Jersey Security Interest,
service by the Note Trustee of a notice upon the Issuer
specifying the Event of Default in respect of any one or more
Series and, if the default is capable of remedy, requiring the
Issuer to remedy it, shall constitute notice for the purposes
of the Jersey Security Interests Law of an Event of Default in
respect of the Issuer Jersey Security Interest and, subject to
the provisions of Articles 6(4) and 8(3) of the Jersey
Security Interests Law, the Note Trustee shall have an
immediate power of sale over the Issuer Jersey Secured
Property relating to any such Series, without having to apply
to the Royal Court of Jersey for authority to exercise the
same.
6.1.4 The power of sale in respect of the Issuer Jersey Security
Interest shall, subject to the Jersey Security Interests Law,
be exercisable by the Note Trustee in such manner as the Note
Trustee may in its discretion deem appropriate and with all
powers of a beneficial owner notwithstanding that no such
beneficial ownership shall have vested in it as such. Subject
to the Jersey Security Interests Law but otherwise without any
limitation, the Note Trustee may, without liability and
subject to the Note Trustee having been indemnified in full
and/or provided with security to its satisfaction, sell or
dispose of the whole or part of the relevant Issuer Jersey
Secured Property at such times and in such manner and
generally on such terms and conditions and for such
consideration as the Note Trustee may think fit. Any such sale
or disposal may be for cash, debentures or other obligations,
shares, stocks, securities or other valuable consideration and
may be payable immediately or by instalment spread over such a
period as the Note Trustee may think fit. The Note Trustee
shall have right of recourse to any monies forming part of the
Secured Property and may, without liability and subject to the
Note Trustee having been indemnified in full to its
satisfaction, apply such monies in the payment or discharge of
the Secured Obligations as if such moneys were proceeds of
sale.
6.1.5 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
Issuer in relation to such Series.
6.2 INSOLVENCY ACT REQUIREMENTS
The Note Trustee shall comply with any requirement under the Insolvency
Act that any person appointed to be a Receiver be a licenced insolvency
practitioner.
7. PROVISIONS RELATING TO RECEIVER
7.1 PROVISIONS APPLICABLE TO RECEIVER
If the Note Trustee appoints a Receiver under Clause 6.1 (Appointment
and removal of Receiver), the following provisions (subject, in the case
of any Issuer Jersey Secured Property, to the Jersey Security Interests
Law) shall have effect in relation thereto:
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7.1.1 Appointment: such appointment may be made either before or
after the Note Trustee has taken possession of the relevant
Secured Property relating to any Series;
7.1.2 Powers: such Receiver may be vested by the Note Trustee with
such powers and discretions as the Note Trustee may think
expedient and, subject to Clause 6.1 (Appointment and removal
of Receiver), (i) may sell or concur in selling all or any of
such Secured Property, or assign or release all or any of such
Secured Property, to any Person save for itself or any of its
Affiliates, or (ii) continue the business of the 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 Issuer or
otherwise.
7.1.3 Extension of powers: the Receiver shall have, mutatis
mutandis, the powers, authorities and discretions conferred
upon the Note Trustee under this Note Trust Deed and any
relevant Note Trust Deed Supplement, subject to such
restrictions as the Note Trustee may think fit and subject in
the case of the Issuer Jersey Secured Property to the Jersey
Security Interests Law. Without prejudice to the generality of
the foregoing, any Receiver appointed to the whole or
substantially the whole of the Secured Property shall have the
powers referred to in Schedule 1 of the Insolvency ▇▇▇ ▇▇▇▇;
7.1.4 Further extension of powers: the exclusion of any part of the
Secured Property of any Series from the appointment of the
Receiver shall not preclude the Note Trustee from subsequently
extending his appointment (or that of the Receiver replacing
him) to that part;
7.1.5 Remuneration of Receiver: the Note Trustee may from time to
time fix the remuneration of such Receiver and direct payment
thereof out of moneys accruing to him in the exercise of his
powers as such provided, however, that such remuneration shall
only be payable from such sums as are realised from the
Secured Property of those Series in respect of which the
Receiver was appointed.
7.1.6 Security from Receiver: the Note 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 the Receiver and may fix
the nature and amount of the security to be so given but the
Note Trustee shall not be bound in any case to require any
such security;
7.1.7 Monies payable to Note Trustee: save insofar as otherwise
directed by the Note Trustee, all moneys from time to time
received by such Receiver shall be paid over forthwith to the
Note Trustee to be held and applied by it in accordance with
the provisions of Clause 12.1 (Application of Moneys) as
supplemented by the relevant Note Trust Deed Supplement;
7.1.8 Receiver as agent of Issuer: every such Receiver shall be the
agent of the Issuer for all purposes and the Issuer alone
shall be responsible for his acts, defaults
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and misconduct, and the Note Trustee and the Noteholders and
the Secured Creditors shall not incur any liability therefor
or by reason of its or their making or consenting to the
appointment of a person as a Receiver under this Note Trust
Deed;
7.1.9 Holders not liable for acts of Receiver: none of the Note
Trustee and the Noteholders and Secured Creditors shall be in
any way responsible for any misconduct or negligence on the
part of any such Receiver;
7.1.10 Removal of Receiver: the Note Trustee may (subject to Section
45 of the Insolvency Act 1986) remove the Receiver whether or
not appointing another in his place and the Note Trustee may
also appoint another receiver if the Receiver resigns;
7.1.11 Monies paid over to Receiver: the Note Trustee may pay over to
such Receiver any monies constituting part of the Security to
the intent that the same may be applied for the purposes of
this Note Trust Deed by such Receiver and the Note 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;
7.1.12 Application of monies received by Receiver: sections 109(6)
and (8) of the Law of Property ▇▇▇ ▇▇▇▇ (relating to
application of monies received by a receiver) shall not apply
in relation to a Receiver appointed under Clause 6.1
(Appointment and removal of Receiver); and
7.1.13 Application of the Law of Property ▇▇▇ ▇▇▇▇: none of the
restrictions imposed by the Law of Property ▇▇▇ ▇▇▇▇ 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 6.1 (Appointment and removal of
Receiver).
7.2 MONEYS HELD ON TRUST
Subject in the case of the Issuer Jersey Secured Property to the Jersey
Security Interests Law, for each Series, all moneys received by the Note
Trustee in respect of the Security or the Secured Property relating to
such Series shall be held by the Note Trustee upon trust to apply the
same as provided in Clause 12.1 (Application of Moneys) hereof and the
relevant Note Trust Deed Supplement.
7.3 FURTHER ASSURANCE
For each Series, the Issuer shall execute and do all such assurances,
acts and things as the Note 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 Note 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
- 15 -
discretions vested in the Note Trustee or in any Receiver of all or any
of the Secured Property relating to such Series.
7.4 BORROWING POWERS
For each Series, subject in the case of the Issuer Jersey Secured
Property to the Jersey Security Interests Law, the Note 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 Note Trust Deed
and any relevant Note Trust Deed Supplement relating to such Series or
in the exercise of any of the powers contained in this Note Trust Deed
and any relevant Note Trust Deed Supplement relating to such Series. The
Note 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 Note
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 Note Trustee or to see to the application of any money so raised or
borrowed.
7.5 APPOINTMENT OF ATTORNEYS
For the purpose of securing the interests of the Note Trustee and the
other Secured Creditors whether under or pursuant to this Note Trust
Deed or any Document or in relation to the Secured Property and the
performance of its obligations to the Secured Creditors, whether under
or pursuant to this Note Trust Deed or any Document or in relation to
the Secured Property, the Issuer irrevocably for value and by way of
security hereby severally appoints the Note Trustee and every Receiver
of the Secured Property 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 Issuer and in its name or otherwise, to execute any
document or do any assurance, act or thing which the Issuer ought to
execute or do pursuant to this Note Trust 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 Note 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
Note Trustee or the Receiver under or pursuant to this Note Trust Deed
or any Document. The Issuer hereby ratifies and confirms and agrees to
ratify and confirm whatever any such attorney does or purports to do in
the exercise or purported exercise of all or any of the powers,
authorities and discretions referred to in this Clause 7.5. For the
avoidance of doubt, this power of attorney is granted, inter alia,
pursuant to Article 5 of the Powers of Attorney (Jersey) Law 1995 for
the purposes of facilitating the Note Trustee's powers hereunder and
under the Jersey Security Interests Law in respect of the Issuer Jersey
Security Interest.
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7.6 NO LIABILITY
For each Series, the Note Trustee shall not, nor shall any Receiver
appointed as aforesaid nor any attorney, agent or delegate of the Note
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 Issuer or any other
person or in which the 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 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 Issuer or any other
person or in which the 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 Issuer or any other
person or in which the Issuer or such other person has an interest, by
or pursuant to this Note Trust Deed as supplemented by the relevant Note
Trust Deed Supplement relating to such Series or otherwise.
7.7 POWERS ADDITIONAL TO LPA AND INSOLVENCY ACT POWERS
For each Series, the powers conferred by this Note Trust Deed in
relation to all or any of the Secured Property in respect of such Series
on the Note Trustee or on any Receiver of all or any of the Secured
Property shall (save to the extent they relate to Jersey Assets) be in
addition to and not in substitution for the powers conferred on
mortgagees or receivers under the Law of Property ▇▇▇ ▇▇▇▇ and the
Insolvency Act and where there is any ambiguity or conflict between the
powers contained in such Act and those conferred by this Note Trust Deed
and any relevant Note Trust Deed Supplement the terms of this Note Trust
Deed and any relevant Note Trust Deed Supplement shall prevail. The
powers conferred by this Note Trust Deed on the Note Trustee in relation
to all or any of the Issuer Jersey Secured Property shall be subject to
the Jersey Security Interests Law.
7.8 PROTECTION OF THIRD PARTIES
For each Series, no person dealing with the Note Trustee or with any
Receiver of all or any of the Secured Property in respect of such Series
appointed by the Note 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 Note Trust Deed and any
relevant Note Trust Deed Supplement in relation to such Secured Property
in respect of such Series are or may be exercisable by the Note 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 protection to purchasers
contained in Sections 104 and 107 of the Law of Property ▇▇▇ ▇▇▇▇ shall
apply to any person purchasing from or dealing with the Note Trustee or
any such Receiver in like
- 17 -
manner as if the statutory powers of sale and of appointing a Receiver
in relation to such Secured Property in respect of such Series had not
been varied or extended by this Note Trust Deed and any relevant Note
Trust Deed Supplement.
8. THE NOTE CERTIFICATES
8.1 GLOBAL NOTE CERTIFICATES
8.1.1 Each Class or Sub-Class of Notes of each Series will be
initially represented by a Global Note Certificate.
8.1.2 Interests in the Global Note Certificate shall be
exchangeable, in accordance with their terms for Individual
Note Certificates.
8.2 INDIVIDUAL NOTE CERTIFICATES
Individual Note Certificates will not be security printed unless
required by applicable legal and Stock Exchange requirements and will be
substantially in the forms set out in Schedule 3. Individual Note
Certificates have the Conditions attached thereto.
8.3 SIGNATURE
The Note Certificates will be signed manually or in facsimile by a duly
authorised person designated by the Issuer and will be authenticated
manually by or on behalf of the relevant Registrar. The Issuer may use
the facsimile signature of a person who at the date such signature was
originally produced was such a duly authorised person even if at the
time of issue of any Note Certificate he no longer holds that office.
Note Certificates so executed and duly authenticated will be binding and
valid obligations of the Issuer.
9. COVENANTS
9.1 COVENANT TO COMPLY WITH THE NOTE TRUST DEED
The Issuer, in respect of each Series, hereby covenants with the Note
Trustee on the terms of the Issuer Covenants and covenants to comply
with those provisions of the other Documents, this Note Trust Deed, any
Note Trust Deed Supplement and the Conditions which are expressed to be
binding on it and to perform and observe the same. The Notes are subject
to the provisions contained in the Security Documents, all of which
shall be binding upon the Issuer and the Noteholders and all persons
claiming through or under them respectively.
9.2 BOOKS OF ACCOUNTS
So long as any of the Notes remain outstanding, the Issuer covenants
with the Note Trustee that it shall at all times keep proper books of
account and allow the Note Trustee, the Note Trustee's auditors, or,
with the Issuer's prior approval, any professional or financial adviser
of the Note Trustee at any time upon reasonable notice to have free
access to all books of record and account at the Issuer's registered
office and other relevant records during normal business hours.
9.3 SEC REPORTS
- 18 -
So long as any of the Notes remain outstanding and to the extent that it
is required to do so under Section 13 or 15 (d) of the Exchange Act, the
Issuer covenants with the Note Trustee that it shall file with the Note
Trustee copies of the annual reports and of the information, documents,
and other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Issuer is
required to file with the SEC within 15 days after it files them with
the SEC. The Issuer also shall comply with the other provisions of TIA
Section 314(a).
9.4 OPINION OF COUNSEL
In accordance with section 314(b) of the TIA, promptly after the
execution and delivery of this Note Trust Deed and each Note Trust Deed
Supplement, the Issuer will furnish to the Note Trustee an Opinion of
Counsel stating that in the opinion of such counsel, appropriate steps
have been taken to protect the title of the Note 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 Issuer
shall furnish to the Note Trustee, not more than three (3) months after
the anniversary of each calendar year, commencing with calendar year
2007, 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 Note Trustee to the Secured Property and
reciting the details of such action or (ii) no such action is necessary
for any of such purposes.
9.5 NOTE TRUSTEE MAY ENFORCE CONDITIONS
The Note Trustee shall itself be entitled to enforce the obligations of
the Issuer under the Notes and the Conditions as if the same were set
out and contained in this Note Trust Deed which shall be read and
construed as one document with the Notes.
9.6 COMPLIANCE WITH REGULATION AB UNDER THE EXCHANGE ACT
The Note Trustee represents and warrants that any information that it
provides to the Issuer in accordance with Regulation AB under the
Exchange Act is correct and is not misleading.
10. AMENDMENTS AND SUBSTITUTION
10.1 WAIVER
The Note Trustee may, without any consent or sanction of the Noteholders
or any other Secured Creditor and without prejudice to its rights in
respect of any subsequent breach, Event of Default or Potential Event of
Default, from time to time and at any time, but only if and in so far as
in its opinion the interests of the holders of the Most Senior Class of
Notes of the relevant Series shall not be materially prejudiced thereby,
authorise or waive, on such terms and conditions (if any) as shall seem
fit and proper to it, any breach or proposed breach of any of the
covenants or provisions contained in the Security Documents or the Notes
or any of the other Documents in relation to such Series or determine
that any Event of Default or Potential Event of Default in relation to
such Series shall not be treated as such for the purposes of the
Security Documents; any such authorisation, waiver or determination
shall be binding on the Noteholders of such Series and the other Secured
Creditors and, unless the Note Trustee agrees otherwise, the Issuer
- 19 -
shall cause such authorisation, waiver or determination to be notified
to the Noteholders of such Series as soon as practicable thereafter in
accordance with the Conditions; PROVIDED THAT the Note Trustee shall not
exercise any powers conferred upon it by this Clause in contravention of
any express direction by an Extraordinary Resolution of, or a request in
writing made by, the holders of at least one-quarter in aggregate
principal amount of the Most Senior Class of Notes then outstanding of
the relevant Series (but so that no such direction or request shall
affect any authorisation, waiver or determination previously given or
made) or so as to authorise or waive any such breach or proposed breach
relating to a Basic Terms Modification.
10.2 MODIFICATIONS
The Note Trustee may, from time to time and at any time without any
consent or sanction of the Noteholders, concur with the Issuer in making
any modification to the Documents (including where required Relevant
Documents) other than in respect of a Basic Terms Modification:
10.2.1 which in the opinion of the Note Trustee it may be proper to
make provided the Note Trustee is of the opinion that such
modification will not be materially prejudicial to the
interests of the holders of the Most Senior Class of Notes
then outstanding of the relevant Series;
10.2.2 if in the opinion of the Note Trustee such modification is of
a formal, minor or technical nature or is to correct a
manifest error, or an error which is, in the opinion of the
Note Trustee, proven; or
10.2.3 to comply with any requirements of the SEC in order to effect
and maintain the qualification of this Note Trust Deed under
the TIA.
Any such modification shall be binding on the Noteholders and, unless
the Note Trustee agrees otherwise, shall be notified by the Issuer to
the Noteholders as soon as practicable thereafter in accordance with the
Condition 17.
Notwithstanding the forgoing, the Note Trustee shall be entitled to make
any modification or amendment to any Document upon receipt of an opinion
of counsel that such modification or amendment is necessary in order to
register any Series of Notes under the Securities Act.
Every modification made to this Note Trust Deed pursuant to this clause
10.2 shall conform to the requirements of the TIA as then in effect.
10.3 SUBSTITUTION
10.3.1 Procedure: The Note Trustee may, without the consent of the
Noteholders or other Secured Creditors, agree to the
substitution, in place of the Issuer (or of any previous
substitute under this Clause) of any other body corporate (the
"SUBSTITUTED ISSUER") as the principal debtor in respect of
the Security Documents, the Notes and the other Secured
Obligations of any Series if:
- 20 -
(a) a Note Trust Deed is executed or some other written form
of undertaking is given by the Substituted Issuer to the
Note Trustee, in form and manner satisfactory to the
Note Trustee, agreeing to be bound by the terms of the
Security Documents, the Notes and the other Documents
with any consequential amendments which the Note Trustee
may deem appropriate as fully as if the Substituted
Issuer had been named in the Security Documents and the
other Documents and on the Notes as the principal debtor
in place of the Issuer (or of any previous substitute
under this Clause);
(b) the Issuer (or any previous substitute) and the
Substituted Issuer execute such other deeds, documents
and instruments (if any) as the Note Trustee may require
in order that the substitution is fully effective and
comply with such other requirements as the Note Trustee
may direct in the interests of the Noteholders and the
other Secured Creditors;
(c) where all or substantially all the assets of the Issuer
or any previous substitute are transferred to the
Substituted Issuer, the Substituted Issuer:
(i) acquires the Issuer's (or such previous
substitute's) equity of redemption in the Secured
Property (other than the undertaking of the
Issuer or any previous substitute);
(ii) becomes a party to all the Documents to which the
Issuer (or such previous substitute) is a party;
(iii) acknowledges the Security and the other matters
created and effected in respect thereof pursuant
to the Security Documents; and
(iv) takes all such action as the Note Trustee may
require so that the Secured Property continues to
be subject to the Security and the other matters
created and effected in respect thereof pursuant
to the Security Documents and otherwise effected
or maintained in all respects corresponding to
those previously subsisting on the part of the
Issuer or such previous substitute;
(d) (unless all or substantially all of the assets of the
Issuer or any previous substitute are transferred to the
Substituted Issuer) an unconditional and irrevocable
guarantee limited in recourse to and secured only on the
Secured Property in form and substance satisfactory to
the Note Trustee is given by the Issuer (or such
previous substitute) of the obligations of any
Substituted Issuer under the Security Documents, the
Notes and the other Documents;
(e) the Note Trustee is provided with a legal opinion (in a
form and substance satisfactory to the Note Trustee,
acting reasonably) or such other evidence which is
acceptable to the Note Trustee that (i) the Substituted
Issuer has obtained all governmental and regulatory
approvals and consents necessary for its assumption of
liability as principal debtor in respect of
- 21 -
the Security Documents, the Notes and the other Secured
Obligations in place of the Issuer (or such previous
substitute as aforesaid) and (ii) such approvals and
consents are at the time of substitution in full force
and effect;
(f) the Substituted Issuer is a single purpose company
similar to, and with like constitution as, and having
substantially the same restrictions and prohibitions on
its activities and operations as the Issuer, undertakes
to be bound by provisions corresponding to those set out
in the Conditions and satisfies the SPV Criteria;
(g) without prejudice to the rights of reliance of the Note
Trustee under sub-clause 10.3.4 (Directors'
certification) the Note Trustee is satisfied that the
said substitution is not materially prejudicial to the
interests of the holders of the Most Senior Class of
Notes outstanding of each Series; and
(h) the Note Trustee is provided with any further legal
opinions it requires in respect of such substitution in
form and substance satisfactory to it (acting
reasonably).
10.3.2 Change of governing law: In connection with any proposed
substitution of the Issuer or any previous substitute, the
Note Trustee may, in its absolute discretion and without the
consent of the Noteholders or the other Secured Creditors
agree to a change of the law from time to time governing the
Notes and/or the Security Documents provided that such change
of law, in the opinion of the Note Trustee, would not be
materially prejudicial to the interests of the holders of the
Most Senior Class of Notes outstanding of each Series.
10.3.3 Extra duties: The Note Trustee shall be entitled to refuse to
approve any Substituted Issuer if, pursuant to the law of the
country of incorporation of the Substituted Issuer, the
assumption by the Substituted Issuer of its obligations
hereunder imposes (in the reasonable opinion of the Note
Trustee) responsibilities and Liabilities on the Note Trustee
over and above those which it has assumed under the Security
Documents;
10.3.4 Directors' certification: If any two directors of the
Substituted Issuer certify that immediately prior to the
assumption of its obligations as Substituted Issuer
under the Security Documents, the Notes and the other
Documents the proposed Substituted Issuer is solvent after
taking account of all prospective and contingent Liabilities
resulting from its becoming the Substituted Issuer, the Note
Trustee need not have regard to the financial condition,
profits or prospects of the proposed Substituted Issuer or
compare the same with those of the Issuer (or of any previous
substitute under this Clause) or have regard to the
possibility of avoidance of the Security or any part thereof
on the grounds of insolvency or the proximity to insolvency,
liquidation or some other event of the Substituted Issuer;
10.3.5 Interests of Noteholders: In connection with any proposed
substitution, the Note Trustee shall not have regard to, or be
in any way liable for, the
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consequences of such substitution for individual Noteholders
or the other 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. No Noteholder or other Secured Creditor shall, in
connection with any such substitution, be entitled to claim
from the Issuer any indemnification or payment in respect of
any tax consequence of any such substitution upon individual
Noteholders or other Secured Creditors.
10.3.6 Release of Issuer: Any agreement by the Note Trustee pursuant
to sub-clause 10.3.1 (Procedure) shall, if so expressed,
operate to release the Issuer (or such previous substitute)
from all of its obligations as principal debtor under the
Notes, the Security Documents and the other Secured
Obligations (but without prejudice to its liabilities under
any guarantee given pursuant to sub-clause (d)).
10.3.7 Completion of substitution: Upon the execution of such
documents and compliance with the said requirements, the
Substituted Issuer shall be deemed to be named in the Security
Documents, the Notes and the other Documents as the principal
debtor in place of the Issuer (or of any previous substitute
under this Clause) and the Security Documents, the Notes and
the other Documents shall thereupon be deemed to be amended in
such manner as shall be necessary to give effect to the
substitution and without prejudice to the generality of the
foregoing any references in the Security Documents, Notes and
the other Documents to the Issuer shall be deemed to be
references to the Substituted Issuer.
11. ENFORCEMENT
11.1 SECURITY ENFORCEABLE
The Security in relation to any Series shall become enforceable (subject
in the case of the Issuer Jersey Security Interest to the provision of
the Jersey Security Interests Law) upon the Note Trustee giving an
Enforcement Notice pursuant to the terms of this Note Trust Deed and the
relevant Note Trust Deed Supplement to the Issuer subsequent to an Event
of Default in respect of such Series or as otherwise provided in the
applicable Prospectus Supplement/Final Terms and/or the Note Trust Deed
Supplement for such Series.
11.2 ENFORCEMENT NOTICE
The Note Trustee shall not be bound to give any Enforcement Notice in
respect of any Series of Notes pursuant to Clause 11.1 (Security
enforceable) unless:
11.2.1 in relation to the Security created pursuant to any Note Trust
Deed Supplement, it shall have been so requested in writing by
the holders of at least one-quarter in aggregate principal
amount of the Notes of the Most Senior Class outstanding of
the relevant Series or it shall have been so directed by an
Extraordinary Resolution of the holders of the Most Senior
Class outstanding of the relevant Series;
11.2.2 in relation to the Security created pursuant to Clause 4.1
(Creation of Security) and it shall have been requested in
writing by the holders of at least one-quarter
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in aggregate principal amount of the Most Senior Class of
Notes outstanding of all Series then outstanding or it shall
have been directed by an Extraordinary Resolution of such
holders; and
11.2.3 it shall have been indemnified and/or secured to its
satisfaction,
and provided that the Note Trustee shall not be held liable for the
consequence of the taking of any such action and may take such action
without having regard to the effect of such action on individual
Noteholders or any other Secured Creditor in relation to that Series or
all or any of the Noteholders or any other Secured Creditors in relation
to any other Series.
11.3 LEGAL PROCEEDINGS
At any time after the service of an Enforcement Notice (subject, in the
case of the Issuer Jersey Security Interest to the Jersey Security
Interest Law) pursuant to Clause 11.1 (Security Enforceable) and Clause
11.2 (Enforcement Notice) and in accordance with the terms of these
Clauses, the Note 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 Issuer for
the whole amount of principal and interest and any other sums secured
under the Security Documents remaining unpaid and take:
11.3.1 such other steps and/or institute such proceedings as it may
think fit against, or in relation to, the Issuer, and/or
11.3.2 such steps as it may think fit to enforce the security created
in favour of the Note Trustee by, and contained in, this Note
Trust Deed and any relevant Note Trust Deed Supplement, and/or
11.3.3 such steps as it may think fit to enforce the Issuer's
obligations under this Note Trust Deed and any relevant
Document including, without limitation, to enforce repayment
of the relevant Notes together with accrued interest and any
other monies payable pursuant to this Note Trust Deed and any
relevant Note Trust Deed Supplement, provided that the Note
Trustee shall be bound by the terms of this Note Trust Deed
and the relevant Note Trust Deed Supplement in determining the
priority in which any monies received by it shall be applied.
In enforcing the security created in favour of the Note
Trustee by and contained in this Note Trust Deed (other than
in relation to the Floating Charge created pursuant to Clause
4.1.2 (Security), which shall be enforced as detailed in
Clause 11.2.1 (Enforcement Notice)), the Note Trustee shall
only take steps to realise assets which are (i) secured both
by this Note Trust Deed and the relevant Note Trust Deed
Supplement for the relevant Series which is the subject of
enforcement and/or (ii) not already secured by a fixed charge
in favour of any other Series pursuant to the relevant Note
Trust Deed Supplement.
11.4 Notwithstanding any other provision in this Note Trust Deed and any
relevant Note Trust Deed Supplement and in accordance with Section
316(b) of the TIA, the right of any
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Noteholder to receive payment of principal and interest on its Notes on
or after the due date for such principal or interest, or to institute
suit for the enforcement of payment of that principal or interest, may
not be impaired or affected without the consent of the Noteholder,
provided that no such right of enforcement shall exist (i) in respect of
a postponement of an interest payment which has been consented to by the
Noteholders in accordance with the Conditions or (ii) to the extent that
the institution or prosecution of such suit or the entry of judgment
therein would, under applicable law, result in the surrender,
impairment, waiver or loss of the security granted pursuant to this Note
Trust Deed or the relevant Note Trust Deed Supplement upon any property
subject to such security.
11.5 POWER OF SALE
Subject in the case of the Issuer Jersey Secured Property to the Jersey
Security Interest Law, at any time after the Security in relation to any
Series has become enforceable, the Note Trustee may take possession of
all or any of the Secured Property in relation to such Series and may
sell, call in, collect and convert into money, and enforce any rights it
may have in respect of, all or any of the Secured Property relating to
the relevant Series of Notes in respect of which the Security has become
enforceable, in such manner and upon such terms as the Note Trustee may
think fit and so that the power of sale conferred by Section 101 of the
Law of Property ▇▇▇ ▇▇▇▇ (but free from the restrictions imposed by
Sections 93 and 103 of such Act) shall apply and have effect on the
basis that the Security Documents constitute a mortgage within the
meaning of that Act and the Note Trustee is a mortgagee exercising the
power of sale conferred upon mortgagees by that Act; provided, however,
that the statutory power of sale (as extended by the Security Documents)
and the other powers of the Note Trustee referred to above (including
the power to appoint a Receiver) shall, in relation to the property
which is secured by the Issuer pursuant to Clause 4.1 (Creation of
Security), only be exercisable by the Note Trustee after the Security in
respect of all Notes then outstanding and issued by such Issuer has
become enforceable.
11.6 EVIDENCE OF DEFAULT
Should the Note Trustee take legal or other proceedings against the
Issuer to enforce any of the provisions of the Notes, or any of them or
any of the provisions of this Note Trust Deed and any relevant Note
Trust Deed Supplement, proof therein that, as regards any Note of any
Series, the Issuer has made default in paying any principal or interest
due in respect of such Note shall (unless the contrary be proved) be
sufficient evidence that the Issuer has made the like default as regards
all other Notes of such Series in respect of which the relevant payment
is then due and payable. The Note Trustee may file such proofs of claim
and other papers or documents and to take any and all actions authorised
under the TIA as may be necessary or advisable in order to have the
claims of the Note Trustee and the Secured Creditors allowed in any
judicial proceedings relating to the Issuer, its auditors or its
property.
11.7 CONTINUING SECURITY
The Security constituted by this Note Trust Deed as supplemented by the
relevant Note Trust Deed Supplement is continuing security for the
performance of the Secured
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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 Note Trustee may have.
11.8 ENFORCEMENT OF SECURITY
The Note Trustee may only enforce the Security created pursuant to
Clause 4.1 (Creation of Security) if so instructed by the Holders of the
Most Senior Class of Notes outstanding of each and every Series at a
Meeting duly convened and held in accordance with Schedule 2.
12. APPLICATION OF MONEYS
12.1 APPLICATION OF MONEYS
All moneys received by the Note Trustee in respect of the Notes of any
Series or amounts payable under the Security Documents will despite any
appropriation of all or part of them by the Issuer (including any moneys
which represent principal or interest in respect of Notes which have
become void under the Conditions) be held by the Note Trustee on trust
to apply them (subject to Clause 12.2 (Investment of moneys)), if
received prior to the delivery of an Enforcement Notice, in accordance
with the priority of application of amounts prior to enforcement of the
Security contained in the relevant Note Trust Deed Supplement and, if
received after delivery of an Enforcement Notice in accordance with the
order of priority contained in Condition 5 (Application of Proceeds Upon
Enforcement), subject in the case of the Issuer Jersey Secured Property
to the Jersey Security Interests Law.
12.2 INVESTMENT OF MONEYS
If, upon enforcement of the Security, the amount of the moneys at any
time available for payment of principal and interest in respect of the
Notes of any Series under Clause 12.1 (Application of moneys) shall be
less than a sum sufficient to pay at least one-tenth of the Principal
Amount Outstanding of the Notes of such Series then outstanding, the
Note Trustee may, at its discretion, subject in the case of the Issuer
Jersey Secured Property to the Jersey Security Interests Law, invest
such moneys upon some or one of the investments hereinafter authorised
with power from time to time, with like discretion, to vary such
investments; and such investment with the resulting income thereof may
be accumulated until the accumulations together with any other funds for
the time being under the control of the Note Trustee and available for
the purpose shall amount to a sum sufficient to pay at least one-tenth
of the Principal Amount Outstanding of the Notes of such Series then
outstanding and such accumulation and funds (after deduction of any
taxes and any other deductibles applicable thereto) shall then be
applied in accordance with the order of priority contained in Condition
5 (Application of Proceeds Upon Enforcement).
12.3 AUTHORISED INVESTMENTS
Any moneys which under the Security Documents may be invested by the
Note Trustee may be invested in the name or under the control of the
Note Trustee in any of the investments for the time being authorised by
English law for the investment by trustees
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of trust moneys or in any other investments, whether similar to those
aforesaid or not, which may be selected by the Note Trustee or by
placing the same on deposit in the name or under the control of the Note
Trustee with such bank or other financial institution as the Note
Trustee may think fit and in such currency as the Note Trustee in its
absolute discretion may determine and the Note Trustee may at any time
vary or transfer any of such investments for or into other such
investments or convert any moneys so deposited into any other currency
and shall not be responsible for any Liability occasioned by reason of
any such investments or such deposit whether by depreciation in value,
fluctuation in exchange rates or otherwise.
12.4 PAYMENT TO NOTEHOLDERS
The Note Trustee shall, after the delivery of an Enforcement Notice,
give notice to the Noteholders in accordance with the Conditions of the
date fixed for any payment under Clause 12.1 (Application of Moneys).
Any payment to be made in respect of the Notes of any Series by the
Issuer or the Note Trustee may be made in the manner provided in the
Conditions, the Agency Agreement and the Security Documents and any
payment so made shall be a good discharge to the extent of such payment
by the Issuer or the Note Trustee (as the case may be).
12.5 PRODUCTION OF NOTES CERTIFICATES
Upon any payment under Clause 12.4 (Payment to Noteholders) of principal
or interest, the Note or Note Certificate in respect of which such
payment is made shall, if the Note Trustee so requires, be produced to
the Note Trustee or the Paying Agent by or through whom such payment is
made and the Note Trustee shall (a) in the case of part payment, require
the relevant Registrar to make a notation on the Register maintained by
such Registrar of the amount and date of payment or (b) in the case of
payment in full, cause the relevant Note Certificate to be surrendered
or shall cancel or procure the same to be cancelled and shall certify or
procure the certification of such cancellation.
13. FURTHER ASSURANCES
The Note Trustee (at the expense of the Issuer) agrees 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 Issuer more
fully to effect the purposes of this Note Trust Deed and each Note Trust
Deed Supplement.
14. TERMS OF APPOINTMENT
Subject, in the case of the Issuer Jersey Secured Property, to the
Jersey Security Interests Law, the Note Trustee shall have all powers
conferred upon trustees by the Trustee Acts (which provisions shall
except as expressly provided in this clause be in lieu of the provisions
contained in section 315(a) of the TIA) and by way of supplement to the
Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇, it is expressly declared as
follows:
14.1.1 ADVICE: The Note Trustee may in relation to any Document act
on the opinion or advice of or a certificate or any
information obtained from any lawyer, banker, valuer,
surveyor, broker, auctioneer, accountant or other expert
(whether obtained by the Note Trustee, the Issuer, any Agent
or any other
- 27 -
Secured Creditor) and shall not be responsible for any
liability occasioned by so acting; any such opinion, advice,
certificate or information may be sent or obtained by letter,
telegram, telex, e-mail or facsimile transmission and the Note
Trustee shall not be liable for acting on any opinion, advice,
certificate or information purporting to be so conveyed
although the same contains some error or is not authentic and
whether or not addressed to the Note Trustee;
14.1.2 CERTIFICATE OF DIRECTORS OR AUTHORISED SIGNATORIES: the Note
Trustee may call for and shall be at liberty to accept a
certificate signed by two Directors or two Authorised
Signatories of the Issuer (or other person duly authorised on
its behalf):
(a) as to any fact or matter prima facie within the
knowledge of the Issuer; and
(b) 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 that such is the case and the Note
Trustee shall not be bound in any such case to call for
further evidence or be responsible for any Liability that may
be occasioned by its failing so to do;
14.1.3 RESOLUTION OR DIRECTION OF NOTEHOLDERS: the Note Trustee shall
not be responsible for acting upon any resolution purporting
to be a Written Resolution or to have been passed at any
Meeting in respect whereof minutes have been made and signed
or upon a direction of a specified percentage of Noteholders,
even though it may subsequently be found that there was some
defect in the constitution of the Meeting or the passing of
the resolution or the making of the directions or that for any
reason the resolution purporting to be a Written Resolution or
to have been passed at any Meeting or the making of the
directions was not signed by the proper persons or was not
valid or binding upon the Noteholders;
14.1.4 CERTIFICATES OF OTHER PARTIES TO THE DOCUMENTS: the Note
Trustee shall be entitled to call for and rely upon a
certificate, reasonably believed by it to be genuine, of:
(a) any of the parties to any of the Documents, in respect
of every matter and circumstance for which a certificate
is expressly provided for under the Security Documents,
the Conditions or the other Documents; and
(b) the Auditors or, if applicable, the liquidator (if any)
of the Issuer as to the amounts to be paid to Secured
Creditors in accordance with the order of priority of
application of amounts prior to and following
enforcement provided in the relevant Note Trust Deed
Supplement,
as sufficient evidence thereof, and the Note Trustee shall not
be bound in any such case to call for further evidence or be
responsible for any loss, liability or inconvenience that may
be occasioned by its failing to do so;
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14.1.5 NOTE TRUSTEE NOT RESPONSIBLE FOR INVESTIGATIONS: the Note
Trustee shall not be responsible for, or for investigating any
matter which is the subject of, any recital, statement,
representation, warranty or covenant of any person contained
in the Security Documents, the other Documents, the Notes or
any other agreement or document relating to the transactions
herein or therein contemplated or for the execution, legality,
effectiveness, adequacy, genuineness, validity, enforceability
or admissibility in evidence thereof and shall assume the
accuracy and correctness thereof nor shall the Note Trustee,
by execution of the Security Documents, be deemed to make any
representation as to the validity, sufficiency or
enforceability of either the whole or any part of the
Security;
14.1.6 NO LIABILITY AS A RESULT OF THE DELIVERY OF A CERTIFICATE: the
Note Trustee shall have no liability whatsoever for any
Liability directly or indirectly suffered or incurred by the
Issuer, any Secured Creditor or any other person as a result
of any determination made by it as to material prejudice
pursuant to Clause 14.2.1 (Note Trustee's determination) on
the basis of an opinion formed by it in good faith;
14.1.7 NOTES HELD BY THE ISSUER: in the absence of knowledge or
express notice to the contrary, the Note Trustee may assume
without enquiry (other than requesting a certificate of the
Issuer), that no Notes are for the time being held by or for
the benefit of the Issuer;
14.1.8 ENTRY ON THE REGISTER: the Note Trustee shall not be liable to
the Issuer or any Noteholder by reason of having accepted as
valid or not having rejected any entry on a Register which is
later found to be forged or not authentic and can assume for
all purposes in relation hereto that any entry on a Register
is correct;
14.1.9 EVENTS OF DEFAULT: Except to the extent required pursuant to
section 315(b) of the TIA, the Note Trustee shall not be bound
to give notice to any person of the execution of the Security
Documents, unless required by the terms of the same, or to
take any steps to ascertain whether any Event of Default or
Potential Event of Default has happened and, until it shall
have actual knowledge or express notice to the contrary, the
Note Trustee shall be entitled to assume that no such Event of
Default or Potential Event of Default has happened and that
the Issuer is observing and performing all the obligations on
its part contained in the Notes and under the Security
Documents and the other Documents and no event has happened as
a consequence of which any of the Notes may become repayable;
14.1.10 LEGAL OPINIONS: the Note Trustee shall not be responsible to
any person for failing to request, require or receive any
legal opinion relating to any Notes or for checking or
commenting upon the content of any such legal opinion;
14.1.11 PROGRAMME LIMIT: the Note Trustee shall not be concerned,
and need not enquire, as to whether or not any Notes are
issued in breach of the Programme Limit;
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14.1.12 NOTE TRUSTEE NOT RESPONSIBLE: the Note Trustee shall not be
responsible for the execution, delivery, legality,
effectiveness, adequacy, genuineness, validity, enforceability
or admissibility in evidence of any Document and shall not be
liable for any failure to obtain any rating of Notes (where
required), any licence, consent or other authority for the
execution, delivery, legality, effectiveness, adequacy,
genuineness, validity, performance, enforceability or
admissibility in evidence of this Note Trust Deed or any other
document relating thereto. In addition, subject to Clause 14.6
below, the Note Trustee shall not be responsible for the
effect of the exercise of any of its powers, duties and
discretions thereunder;
14.1.13 FREEDOM TO REFRAIN: notwithstanding anything else contained in
the Security Documents or the other Documents, the Note
Trustee may refrain from doing anything which would or might
in its opinion be contrary to any law of any jurisdiction or
any directive or regulation of any agency or any state of
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; and
14.1.14 RIGHT TO DEDUCT OR WITHHOLD: notwithstanding anything
contained in the Security Documents or any of the other
Documents, to the extent required by any applicable law, if
the Note Trustee is or will be required to make any deduction
or withholding from any distribution or payment made by it
under the Security Documents or if the Note Trustee is or will
be otherwise charged to, or is or may become liable to, tax
(excluding, for the purposes of this Clause 14.1.14, VAT and
any tax on its profits) as a consequence of performing its
duties under the Security Documents or the other Documents
whether as principal, agent or otherwise, and whether by
reason of any assessment, prospective assessment or other
imposition of liability to taxation of whatsoever nature and
whensoever made upon the Note Trustee, and whether in
connection with or arising from any sums received or
distributed by it or to which it may be entitled under the
Security Documents (other than in connection with its
remuneration as provided for herein or its profits) or any
investments or deposits from time to time representing the
same, including any income or gains arising therefrom or any
action of the Note Trustee in connection with the trusts of
this Note Trust Deed (other than the remuneration herein
specified or its profits) or otherwise, then the Note Trustee
shall notify the Issuer of such requirement prior to making
the proposed retention and thereafter 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 (excluding VAT and any tax on
its profits) which relates to sums so received or distributed
or to discharge any such other liability of the Note Trustee
to such tax from the funds held by the Note Trustee upon the
trusts of the Security Documents;
14.1.15 ADVICE REGARDING MARKET PRACTICE: the Note Trustee may rely
and act upon the advice of an internationally recognised
investment bank when having regard to the then current market
practice or any other matter which falls within the
- 30 -
Conditions and shall not be responsible for any loss
occasioned by so acting; and
14.1.16 INFORMATION: it is a term of the trust created in this Note
Trust Deed, that, except where expressly provided otherwise,
the Note Trustee receives any information provided to it for
information purposes only and the Note Trustee will not and is
not expected routinely to review or monitor such information.
14.1.17 REPORTS BY NOTE TRUSTEE TO NOTEHOLDERS: within sixty (60) days
after the end of the calendar year following the date on which
this deed is required to be qualified under the TIA, the Note
Trustee shall deliver to each Noteholder a brief report dated
as of such that complies with TIA Section 313(a). The Note
Trustee also shall comply with TIA Sections 313(b), (c) and
(d). Reports delivered pursuant to this Clause 14.1.17 shall
be transmitted by mail to all Noteholders, as the names and
addresses of such Noteholders appear upon the Registers.
14.1.18 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER: the Note
Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Note
Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein. The
provisions of TIA Section 311 shall apply to the Issuer as the
obligor of the Notes.
14.2 NOTE TRUSTEE'S POWERS AND DUTIES
14.2.1 NOTE TRUSTEE'S DETERMINATION: The Note Trustee may determine
whether or not a default in the performance or observance by
the Issuer of any obligation under the provisions of the
Security Documents or contained in the Notes or any other
Documents is capable of remedy and/or materially prejudicial
to the interests of the Noteholders and if the Note Trustee
shall certify that any such default is, in its opinion, not
capable of remedy and/or materially prejudicial to the
interests of the Noteholders such certificate shall be
conclusive and binding upon the Issuer and the Secured
Creditors;
14.2.2 DUTIES OF THE NOTE TRUSTEE: Notwithstanding any additional
duties imposed on the Note Trustee under this Deed, the
Trustee Acts or otherwise, if an Event of Default has occurred
and is continuing, the Note 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 (having regard
to the provisions of the Security Documents).
14.2.3 DETERMINATION OF QUESTIONS: the Note Trustee as between itself
and the other Secured Creditors shall have full power to
determine all questions and doubts arising in relation to any
of the provisions of the Security Documents and every such
determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Note Trustee, shall
be conclusive and shall bind the Note Trustee and the other
Secured Creditors;
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14.2.4 NOTE TRUSTEE'S DISCRETION: the Note Trustee shall (save as
expressly otherwise provided herein) as regards all the
trusts, powers, authorities and discretions vested in it by
the Security Documents or by operation of law have absolute
and uncontrolled discretion as to the exercise or non-exercise
thereof and the Note Trustee shall not be responsible for any
Liability that may result from the exercise or non-exercise
thereof but, whenever the Note Trustee is under the provisions
of the Security Documents bound to act at the request or
direction of the Noteholders, the Note Trustee shall
nevertheless not be so bound unless first indemnified and/or
provided with security 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. Without
limiting the general statement above, the Note Trustee may
refrain from taking any action in any jurisdiction if the
taking of such action in that jurisdiction would, in its
opinion based upon legal advice in the relevant jurisdiction,
be contrary to any law of that jurisdiction or, to the extent
applicable, of England. Furthermore, the Note Trustee may also
refrain from taking such action if it would otherwise render
it liable to any person in that jurisdiction or England or if,
in its opinion based upon such legal advice, it would not have
the power to do the relevant thing in that jurisdiction by
virtue of any applicable law in that jurisdiction or in
England or if it is determined by any court or other competent
authority in that jurisdiction or in England that it does not
have such power;
14.2.5 NOTE TRUSTEE'S CONSENT: any consent given by the Note Trustee
for the purposes of the Security Documents, the Notes and the
other Documents may be given on such terms and subject to such
conditions (if any) as the Note Trustee may require and
(notwithstanding any provision to the contrary) may be given
retrospectively;
14.2.6 CONVERSION OF CURRENCY: where it is necessary or desirable for
any purpose in connection with the Security Documents to
convert any sum from one currency to another it shall (unless
otherwise provided by the Security Documents or required by
law) be converted at such rate(s) of exchange, in accordance
with such method and as at such date for the determination of
such rate(s) of exchange as may be specified by the Note
Trustee in its absolute discretion as relevant and any rate of
exchange, method and date so specified shall be binding on the
Issuer, the Noteholders and the other Secured Creditors;
14.2.7 APPLICATION OF PROCEEDS: the Note Trustee shall not be
responsible for the receipt or application by the Issuer of
the proceeds of the issue of the Notes, the exchange of any
Global Note Certificate for Individual Note Certificates or
the delivery of any Note or Note Certificate to the persons
entitled to them;
14.2.8 AGENTS: the Note Trustee may, in the conduct of the trusts
created pursuant to the Security Documents instead of acting
personally, employ and pay an agent on any terms, whether or
not a lawyer or other professional person, to transact or
conduct, or concur in transacting or conducting, any business
and to do or concur in doing all acts required to be done by
the Note Trustee (including the
- 32 -
receipt and payment of money) and, if the Note Trustee
exercises reasonable care in selecting any such person, the
Note Trustee shall not be responsible for any Liability
incurred by reason of the misconduct, omission or default on
the part of any person appointed by it hereunder or be bound
to supervise the proceedings or acts of, 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;
14.2.9 DELEGATION: the Note Trustee may, in the execution and
exercise of all or any of the trusts, powers, authorities and
discretions vested in it by the Security Documents, act by
responsible officer(s) for the time being of the Note Trustee
and the Note Trustee may also whenever it thinks fit, whether
by power of attorney or otherwise, delegate to any person(s)
or fluctuating body of persons (whether being a joint trustee
of this Note Trust Deed or not) all or any of the trusts,
powers, authorities and discretions vested in it by the
Security Documents 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 Note
Trustee) as the Note Trustee may think fit in the interests of
the Noteholders and, if the Note Trustee exercises reasonable
care in selecting any such person, the Note 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 loss,
liability, expense, demand, cost, claim or proceedings
incurred by reason of the misconduct, omission or default on
the part of such delegate or sub-delegate;
14.2.10 CUSTODIANS AND NOMINEES: the Note Trustee may appoint and pay
any person to act as a custodian or nominee on any terms in
relation to such assets of the trust as the Note Trustee may
determine, including for the purpose of depositing with a
custodian this Note Trust Deed or any other Documents and the
Note Trustee shall not be responsible for any Liability
incurred by reason of the misconduct, omission or default on
the part of any person appointed by it hereunder or be bound
to supervise the proceedings or acts of any such person; the
Note Trustee is not obliged to appoint a custodian if the Note
Trustee invests in securities payable to bearer;
14.2.11 CONFIDENTIAL INFORMATION: the Note Trustee shall not (unless
required by law or ordered so to do by a court of competent
jurisdiction) be required to disclose to any Noteholder
confidential information or other information made available
to the Note Trustee by the Issuer in connection with the
Documents and no Noteholder shall be entitled to take any
action to obtain from the Note Trustee any such information;
14.2.12 NOTEHOLDERS AS A CLASS: without prejudice to the provisions of
Clause 14.2.13 (Consideration of the interests of the
Noteholder and the other Secured Creditors) whenever in the
Security Documents the Note Trustee is required in connection
with any exercise of its powers, trusts, authorities or
discretions to have regard to the interests of the
Noteholders, it shall have regard to the interests of the
Noteholders as a Class. The Note Trustee shall not be obliged
to
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have regard to the consequences (including the tax
consequences) of such exercise for any individual Noteholder
resulting from his or its being for any purpose domiciled or
resident in, or otherwise connected in any way with, or
subject to the jurisdiction of, any particular territory or
taxing jurisdiction;
14.2.13 CONSIDERATION OF THE INTERESTS OF THE NOTEHOLDERS AND THE
OTHER SECURED CREDITORS: the Note Trustee shall, as regards
all the powers, trusts, authorities, duties and discretions
vested in it by the Security Documents, the other Documents or
the Notes, except where expressly provided otherwise, have
regard to the interests of both the Noteholders and the other
Secured Creditors, but if, in the Note Trustee's sole opinion,
there is a conflict between their interests, it will have
regard solely to the interests of the Noteholders and no other
Secured Creditor shall have any claim against the Note Trustee
for so doing. Where, in the opinion of the Note Trustee there
is a conflict between the interests of holders of any of the
Classes of Notes of a particular Series the Note Trustee shall
in the exercise of its duties, powers and discretions, have
regard solely to the interests of the holders of the Most
Senior Class of Notes outstanding;
14.2.14 DETERMINATION OF MATERIAL PREJUDICE: for the purposes of
exercising any power, trust, authority, duty or discretion
under or in relation to the Notes, the Security Documents or
any of the other Documents, if each Rating Agency has affirmed
that the then current rating of the Notes would not be
adversely affected by such exercise (in this Clause only, a
"RATINGS AFFIRMATION"), the Note Trustee, in considering
whether such exercise is materially prejudicial to the
interests of the Noteholders (in this Clause only, the "NO
MATERIAL PREJUDICE TEST"), shall be entitled to take into
account such Rating Affirmation provided that the Note Trustee
shall continue to be responsible for taking into account, for
the purpose of the No Material Prejudice Test, such other
matters as it considers to be relevant to such No Material
Prejudice Test;
14.2.15 NO OBLIGATION TO MONITOR PERFORMANCE: the Note Trustee shall
be under no obligation to monitor or supervise the performance
by the Issuer or any of the other Transaction Parties of their
respective obligations under the Documents or under the Notes
or any other agreement or document relating to the
transactions herein or therein contemplated and shall be
entitled, in the absence of actual knowledge of a breach of
obligation, to assume that each such person is properly
performing and complying with its obligations and that no
Event of Default, or Potential Event of Default has occurred,
unless it receives express notice to the contrary;
14.2.16 MAINTENANCE OF RATING: the Note Trustee shall not be
responsible for the maintenance of the Ratings, for the
consequence on any Rating of any exercise of its duties,
powers and discretions or for the obtaining or maintaining of
any listing in respect of the Notes.
14.2.17 RESPONSIBILITY FOR DETERMINATION OF CERTAIN MATTERS: the Note
Trustee acknowledges that the Agent Bank is responsible,
pursuant to the Conditions for
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determining the amount of principal and interest payable in
respect of each Series of Notes and the Note Trustee shall
have no responsibility to recalculate any such amounts. If the
Agent Bank does not at any time for any reason determine such
amounts, the Note Trustee may so determine the same and such
calculation shall be deemed to have been made by the Agent
Bank pursuant to the Conditions and the Note Trustee shall
have no Liability in respect thereof other than as a result of
the wilful default, negligence or fraud of the Note Trustee;
14.2.18 RELIANCE ON CERTIFICATION OF CLEARING SYSTEM: the Note
Trustee may call for any certificate or other document issued
by Euroclear, Clearstream, DTC or any other relevant clearing
system in relation to any matter. Any such certificate or
other document shall, in the absence of manifest error, be
conclusive and binding for all purposes. Any such certificate
or other document may comprise any form of statement or print
out of electronic records provided by the relevant clearing
system (including Euroclear's EUCLID or Clearstream's Cedom
system) in accordance with its usual procedures and in which
the holder of a particular principal or nominal amount of the
Notes is clearly identified together with the amount of such
holding. The Note Trustee shall not be liable to any person by
reason of having accepted as valid or not having rejected any
certificate or other document to such effect purporting to be
issued by Euroclear, Clearstream, DTC or any other relevant
clearing system and subsequently found to be forged or not
authentic;
14.2.19 INVALID DISTRIBUTIONS: any appropriation or distribution which
later transpires to have been, or is agreed in good faith by
the Note Trustee to have been, invalid, or which has to be
refunded, shall be refunded and shall be deemed never to have
been made.
14.3 FINANCIAL MATTERS
14.3.1 PROFESSIONAL CHARGES: any Note Trustee being a banker, lawyer,
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 partner or firm on matters arising in connection with
the trusts of the Security Documents and also his properly
incurred charges in addition to disbursements for all other
work and business done and all time spent by him or his
partner or firm on matters arising in connection with the
Security Documents, including matters which might or should
have been attended to in person by a trustee not being a
banker, lawyer, broker or other professional person;
14.3.2 EXPENDITURE BY THE NOTE TRUSTEE: nothing contained in the
Security Documents or the other Documents shall require the
Note Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of its duties
or the exercise of any right, power, authority or discretion
hereunder if it has grounds for believing that the repayment
of such funds or adequate indemnity against, or security for,
such risk or liability is not reasonably assured to it;
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14.3.3 NOTE TRUSTEE MAY ENTER INTO FINANCIAL TRANSACTIONS WITH THE
ISSUER: no Note Trustee and no director or officer of any
corporation being a Note Trustee hereof shall by reason of the
fiduciary position of such Note Trustee be in any way
precluded from making any contracts or entering into any
transactions in the ordinary course of business with (a) the
Issuer or any person or body corporate directly or indirectly
associated with the Issuer or (b) any Secured Creditor or any
person or body corporate directly or indirectly associated
with any Secured Creditor, or from accepting the trusteeship
of any other debenture stock, debentures or securities of the
Issuer or any person or body corporate directly or indirectly
associated with the Issuer or a Secured Creditor or its
affiliates and neither the Note Trustee nor any such director
or officer shall be accountable to the Noteholders, the
Issuer, any Secured Creditor or any person or body corporate
directly or indirectly associated with any of them for any
profit, fees, commissions, interest, discounts or share of
brokerage earned, arising or resulting from any such contracts
or transactions and the Note Trustee and any such director or
officer shall also be at liberty to retain the same for its or
his own benefit;
14.3.4 NOTE TRUSTEE NOT ACCOUNTABLE FOR PROFITS: neither the Note
Trustee nor any company associated with it nor any director or
officer of any corporation being a Note Trustee shall be
accountable to the Noteholders, the other Secured Creditors,
the Issuer or any other Transaction Party or any person or
body corporate directly or indirectly associated with the
Issuer or any such other Transaction Party for any profit,
fees, commissions, interest, discounts or share of brokerage
earned, arising or resulting from (i) any contracts or
transactions referred to in Clause 6 (Services Non-Exclusive)
of the Common Terms and the Note Trustee and any such director
or officer shall also be at liberty to retain the same for its
or his own benefit; and (ii) the deposit of monies with any
company associated with it which is a bank save that the Note
Trustee shall account for the standard amount of interest paid
by it to a standard customer in respect of a deposit of the
type made; and
14.3.5 NOTEHOLDER APPRAISAL OF FINANCIAL CONDITION: each 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 Issuer and the Note Trustee shall not
at any time have any responsibility for any such appraisal or
investigation and no Noteholder or other Secured Creditors
shall rely on the Note Trustee in respect thereof.
14.4 MATTERS RELATING TO SECURITY
14.4.1 RELIANCE ON TITLE TO THE SECURITY: the Note Trustee may accept
without investigation, requisition or objection such right and
title as the Issuer may have to any of the Secured Property
and the other Security created in favour of the Note Trustee
by the Security Documents 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 Issuer to all or any of
the Secured Property whether such defect or failure
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was known to the Note Trustee or might have been discovered
upon examination or enquiry and whether capable of remedy or
not;
14.4.2 REGISTRATION AND PERFECTION OF THE SECURITY: the Note Trustee
shall not be liable for any failure, omission or defect in
perfecting, protecting or further assuring the Security
including:
(a) 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; and
(b) any failure or omission to require any further
assurances in relation to the Security;
14.4.3 ADEQUACY OF THE SECURITY: the Note Trustee shall not be
responsible for any unsuitability, inadequacy or unfitness of
any Secured Property as security for the 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 Secured Property as security for the Secured
Obligations;
14.4.4 MONITORING: the Note Trustee shall not be responsible for
investigating, monitoring or supervising the observance or
performance by any person in respect of the Secured Property
or otherwise;
14.4.5 NO RESPONSIBILITY FOR SECURITY: the Note Trustee shall not be
responsible for any Liabilities occasioned to the Security
however caused, whether by an act or omission of the Issuer or
any other party to the Documents or any other person
(including any bank, broker, depositary 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 a Breach of Duty of the Note
Trustee;
14.4.6 INSURANCE: without prejudice to the provisions of any Document
relating to insurance, the Note 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 by any person as a result of the lack of or
inadequacy of any such insurance;
14.4.7 DEPRECIATION IN VALUE: until the delivery of an Enforcement
Notice, the moneys standing to the credit of any account
comprised in the Secured Property shall be dealt with in
accordance with the provisions of the Documents and the Note
Trustee shall not be responsible in such circumstances or at
any other time for any Liability suffered by any person,
whether by reason of depreciation in value or by fluctuation
in exchange rates or otherwise, unless such Liability is by
reason of a Breach of Duty of the Note Trustee;
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14.4.8 NO LIABILITY FOR LOSS: the Note Trustee will not be liable for
any decline in the value nor any loss realised upon any sale
or other disposition pursuant to the Security Documents of,
any of the Secured Property. In particular and without
limitation, the Note Trustee shall not be liable for any such
decline or loss directly or indirectly arising from its acting
or failing to act as a consequence of an opinion reached by it
in good faith based on advice received by it in accordance
with the Security Documents and the Conditions;
14.4.9 LIABILITY TO TAX: the Note Trustee shall have no
responsibility whatsoever to the Issuer, any Noteholder or
other Secured Creditors as regards any deficiency which might
arise because the Note Trustee is subject to any Tax in
respect of all or any of the Secured Property, the income
therefrom or the proceeds thereof;
14.4.10 RESPONSIBILITY: the Note Trustee shall not be responsible for
the execution, legality, effectiveness, adequacy, genuineness,
validity, enforceability or suitability of any Note or other
documents entered into in connection therewith, nor shall it
be responsible or liable to any person because of any
invalidity of any provisions of such documents or the
unenforceability thereof, whether arising from statute, law or
decision of any court. The Note Trustee shall not have any
responsibility for, or have any duty to make any investigation
in respect of or in any way be liable whatsoever for:
(a) the nature, status, creditworthiness or solvency of the
Transferor, the Issuer or any Obligor 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
Transferor, the Issuer or any Obligor;
(b) the execution, legality, validity, adequacy,
admissibility in evidence or enforceability of the Notes
or any other document entered into in connection
therewith;
(c) the title, ownership, value, sufficiency or existence of
any Receivables;
(d) the scope or accuracy of any representations, warranties
or statements made by or on behalf of any Obligor in any
application for any advance or any document entered into
in connection therewith;
(e) the performance or observance by any party of any
provisions of the Note or in any document entered into
in connection therewith or the fulfilment or
satisfaction of any conditions contained therein or
relating thereto or as to the existence or occurrence at
any time of any Event of Default or Potential Event of
Default or similar event contained therein or waiver or
consent which has at any time been granted in relation
to any of the foregoing;
(f) the registration, filing, protection or perfection of
any assignment or security interest or the priority of
the security thereby created;
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(g) the existence, accuracy or sufficiency of any legal or
other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection herewith;
(h) the suitability, adequacy or sufficiency of any Credit
Card Guidelines operated by a Transferor and any arrears
and enforcement procedures operated by a Transferor;
(i) the failure by a Transferor, Loan Note Issuer or the
Servicer to obtain or comply with any licence, consent
or other authority in connection with the origination,
sale, purchase or administration of any of the
Receivables or the failure to effect or procure
registration of or to give notice to any person in
relation to the Receivables Securitisation Deed or other
Documents or otherwise protect interests in, and/or the
security created or purported to be created by or
pursuant to any of the Receivables or other documents
entered into connection therewith;
(j) 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 Documents or any
other document;
(k) any accounts, books, records or files maintained by the
Loan Note Issuer, the Receivables Trustee, a Transferor
or any other person in respect of any of the
Receivables;
(l) any other matter or thing relating to or in any way
connected with any Receivables or any document entered
into in connection therewith, whether or not similar to
the foregoing;
(m) obtaining insurance for any of the security constituted
by this Note Trust Deed 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; or
(n) any deficiency in amounts payable to Noteholders by
virtue of the Note Trustee being liable to tax or
obliged to deduct tax in respect of sums received, held
or paid out by it under the Documents;
14.4.11 NO DUTY TO CREDITORS EXCEPT PAYMENT: in acting as Note Trustee
under the Security Documents, the Note Trustee shall not
assume any duty or responsibility toward any Secured Creditors
(other than the Noteholders) other than to pay to any such
party any moneys received and payable to it in accordance with
the order of priority of payments prior to and post
enforcement and, in the exercise of its trusts, powers,
authorities, duties and discretions hereunder, it shall
(except where expressly provided otherwise) have regard solely
to the interests of the Noteholders and shall not be required
to have
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regard to the interests of any other Secured Creditor or any
other person (including, without limitation, to enforce or
realise the Security), in the case of any such other Secured
Creditor, whilst any amount remains owing to any Noteholder
and, in the case of any other person, at any time;
14.4.12 SECURED CREDITOR INSTRUCTIONS: Where in the exercise of its
trusts, powers, authorities, duties and discretions hereunder,
the Note Trustee is required to have regard to the interests
of any Secured Creditor (other than the Noteholders) the Note
Trustee shall be entitled to request, and rely without further
enquiry upon, a certificate signed by the relevant Secured
Creditor certifying that such exercise will not be materially
prejudicial to the interests of such Secured Creditor and the
Note Trustee shall not be responsible for any loss that may be
occasioned by acting on such certificate;
14.4.13 NO RESPONSIBILITY TO MONITOR NOTES: The Note Trustee shall not
be responsible for monitoring whether an Event of Default or
Potential Event of Default has occurred and shall have no
obligation to give an Enforcement Notice or to procure the
giving of such, or to instruct any party to give such a notice
or to act in any way, unless it has been instructed in
accordance with Clause 11.2 (Enforcement Notice) and
indemnified in accordance with Clause 15.1 (Costs and
Expenses);
14.4.14 SWAP COUNTERPARTY: In acting as Note Trustee under this Note
Trust Deed, the Note Trustee shall not assume any duty or
responsibility to any Swap Counterparty, custodian or Paying
Agent (other than to pay to any such party any moneys received
and payable to it and to act in accordance with the provisions
of Condition 5) and shall have regard solely to the interests
of the Noteholders of any Series, or as the case may be, all
Series. In addition, the Note Trustee need not make any
investigation into the creditworthiness of any Swap
Counterparty or into the validity of any such party's
obligations in respect of any of the Secured Property
(including, without limitation, whether the cashflows in
respect of the Secured Property relating to any Notes are
matched);
14.4.15 CERTIFICATION: The Note Trustee may call for and accept as
sufficient evidence of the existence and amount of any
termination payment or other amounts due in accordance with
the terms of the Swap Agreement a certificate to that effect
signed by an authorised signatory or a director of the
relevant Swap Counterparty and the Note Trustee shall not be
bound to call for further evidence and shall not be
responsible for any loss that may be occasioned by acting on
any such certificate; and
14.4.16 ENTRY INTO POSSESSION: without prejudice to the generality of
this Clause 14, entry into possession of the Secured Property
or any part thereof shall not render the Note Trustee or the
Receiver liable to account as mortgagee in possession or
liable for any loss on realisation or for any default or
omission for which a mortgagee in possession might be liable;
14.4.17 GOING OUT OF POSSESSION: without prejudice and subject to the
terms and conditions of this Note Trust Deed, if and whenever
the Note Trustee or the
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Receiver enters into possession of the Secured Property, it
shall be entitled at any time at its discretion to go out of
such possession; and
14.4.18 NO OBLIGATION FOR PAYMENTS: the Note Trustee shall not have
any duty to ensure that any payment or other financial benefit
in respect of any of the Secured Property is duly and
punctually paid, received or collected as and when the same
becomes due and payable or to secure that the correct amounts
(if any) are paid or received.
14.5 DISAPPLICATION
Without prejudice to Clause 14.6 below, Section 1 of the Trustee Act
2000 shall not apply to the duties of the Note Trustee in relation to
the trusts constituted by the Security Documents. Where there are any
inconsistencies between the Trustee Acts and the provisions of the
Security Documents, the provisions of the Security Documents shall, to
the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee ▇▇▇ ▇▇▇▇, the provisions of the Security
Documents shall constitute a restriction or exclusion for the purposes
of that Act.
14.6 NOTE TRUSTEE LIABILITY
None of the provisions of the Security Documents shall in any case in
which the Note Trustee has failed to show the degree of care and
diligence required of it as Note Trustee, having regard to the
provisions of the Security Documents conferring on the Note Trustee any
powers, authorities or discretions, (i) exempt the Note Trustee from or
indemnify it against any liability for breach of trust 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 the Security
Documents or (ii) relieve the Note Trustee from liability for its own
negligent action, its own negligent failure to act, its own wilful
misconduct, its own breach of trust or breach of duty except as
permitted in Section 315(d) of the TIA, or Section 192 Companies Act
1985 (as applicable).
15. COSTS AND EXPENSES
15.1 REMUNERATION:
15.1.1 NORMAL REMUNERATION: The Issuer shall pay to the Note Trustee
remuneration for its services as Note Trustee as from the
initial Issue Date, such remuneration to be at such rate as
may from time to time be agreed between the Issuer and the
Note Trustee. Such remuneration shall accrue from day to day
and be payable in accordance with the order of priority of
payments prior to and post enforcement until the trusts of the
Security Documents are discharged.
15.1.2 EXTRA REMUNERATION: In the event of the occurrence of an Event
of Default or a Potential Event of Default or the Note Trustee
considering it expedient or necessary or being requested by
the Issuer to undertake duties which the Note Trustee and the
Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Note Trustee
under this Note Trust Deed,
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the Issuer shall pay to the Note Trustee such additional
remuneration as shall be agreed between them.
15.1.3 REDUCTION IN REMUNERATION: The rate of remuneration in force
from time to time may, upon the final redemption of the whole
of the Notes of a Class, be reduced by an amount as may from
time to time be agreed between the Issuer and Note Trustee.
Such reduction in remuneration shall be calculated from the
date following such final redemption.
15.1.4 FAILURE TO AGREE: In the event of the Note Trustee and the
Issuer failing to agree:
(a) (in a case to which sub-clauses 15.1.1 or 15.1.3 apply)
upon the amount of the remuneration; or
(b) (in a case to which sub-clause 15.1.2 applies) upon
whether such duties shall be of an exceptional nature or
otherwise outside the scope of the normal duties of the
Note Trustee under the Security Documents, or upon such
additional remuneration,
such matters shall be determined by an investment bank (acting
as an expert and not as an arbitrator) selected by the Note
Trustee and approved by the Issuer or, failing such approval,
nominated (on the application of the Note Trustee) by the
President for the time being of The Law Society of England and
Wales (the expenses involved in such nomination and the fees
of such investment bank being payable by the Issuer) and the
determination of any such investment bank shall be final and
binding upon the Note Trustee and the Issuer.
15.1.5 EXPENSES: The Issuer shall also pay or discharge all properly
incurred and duly documented costs, charges and expenses
incurred by the Note Trustee in relation to the preparation
and execution of, the exercise of its powers and the
performance of its duties under, and in any other manner in
relation to, the Security Documents and the other Documents,
including but not limited to legal and travelling expenses and
any stamp, issue, registration, documentary and other similar
taxes (excluding, for the avoidance of doubt, VAT which shall
be dealt with in accordance with Clause 22 of the Common
Terms) or duties paid or payable by the Note Trustee in
connection with any action taken or contemplated by or on
behalf of the Note Trustee for enforcing, or resolving any
doubt concerning, or for any other purpose in relation to, the
Security Documents and the other Documents.
15.1.6 REIMBURSEMENT: As full reimbursement for any costs and
expenses incurred by it in connection with its activities in
respect of (i) a particular Series, the Issuer prior to the
service of an Enforcement Notice, and the Note Trustee
thereafter, subject in the case of the Issuer Jersey Secured
Property to the Jersey Security Interests Law, 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 Interest Period, solely
to the extent of Secured Property allocable with respect
- 42 -
thereto as provided in this Note Trust Deed, any Note Trust
Deed Supplement and the relevant Conditions, on the related
Distribution Date for such Series (which shall include all
sums due to the Note Trustee under Clause 12 (Application of
Moneys)) and, (ii) some or all Series, the Issuer prior to the
service of an Enforcement Notice, and the Note Trustee
thereafter, subject in the case of the Issuer Jersey Secured
Property to the Jersey Security Interests Law, 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 Interest Period, solely to the extent of
Secured Property allocable with respect thereto as provided in
this Note Trust Deed, any Note Trust Deed Supplement and the
relevant Conditions, on the related Distribution Date for each
Series. The amount of any reimbursement for its activities as
the Issuer will be determined in accordance with the relevant
Note Trust Deed Supplement for each Series. For the avoidance
of any doubt, the amounts due to the Note Trustee under Clause
12 (Application of Moneys) shall be considered expenses of the
Issuer and will be allocated to the particular Series the Note
Trustee is owed an amount in respect of (if this is capable of
calculation).
15.1.7 INDEMNITY: The Issuer covenants with and undertakes to the
Note Trustee to indemnify the Note Trustee on demand against
any Liabilities which are incurred by the Note Trustee, any
Receiver or any Appointee in, or in connection with, (except
insofar as the same are incurred because of a Breach of Duty
of the Note Trustee, Receiver or Appointee):
(a) the performance of the terms of the Security Documents;
(b) anything done or purported to be done by the Note
Trustee, any Appointee or the Receiver in relation to
the Secured Property or under the Security Documents or
any other Document;
(c) the exercise or attempted exercise by or on behalf of
the Note Trustee, any Appointee or the Receiver of any
of the powers of the Note Trustee, any Appointee or the
Receiver or any other action taken by or on behalf of
the Note Trustee with a view to or in connection with
enforcing any obligations of the Issuer or any other
person under any Document or the recovery by the Note
Trustee, any Appointee or the Receiver from the Issuer
of the Secured Obligations;
(d) any payment made in respect of the Secured Obligations
(whether by the Issuer or any other person) which is
subsequently impeached or declared void for any reason
whatsoever; or
(e) the Note Trustee being held to be, or treated as, or
being deemed to be a creditor for the purposes of the
Consumer Credit ▇▇▇ ▇▇▇▇ in respect of a Regulated
Agreement (as defined in the Consumer Credit Act 1974).
15.1.8 PRIORITY OF INDEMNITY: The Note Trustee and the Receiver shall
(save where the Note Trustee has breached its standard of care
as set out in Clause 14.6 (Note
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Trustee Liability) of this Note Trust Deed) be entitled to be
indemnified out of the Secured Property against all actions,
Liabilities payable pursuant to Clause 15.1.7 (Indemnity),
proceedings (or threats of actions or proceedings) costs,
claims and demands in respect of any matter or thing in any
way omitted or done in any way in relation to the Security
Documents in accordance with the order of priority of payments
prior to and post enforcement as referred to in Clause 12.1
(Application of Moneys) and in the relevant Note Trust Deed
Supplement and the Note Trustee may retain and pay out of the
monies in its hands arising from the Secured Property all sums
necessary to effect such indemnity.
15.1.9 PAYMENT OF AMOUNTS DUE: All amounts due and payable pursuant
to sub-clauses 15.1.5 (Expenses) and 15.1.7 (Indemnity) shall
be payable by the Issuer on the date specified in a demand by
the Note Trustee; the rate of interest applicable to such
payments shall be one per cent. per annum above the base rate
from time to time of HSBC Bank plc and interest shall accrue:
(a) in the case of payments made by the Note Trustee prior
to the date of the demand, from the date on which the
payment was made or such later date as specified in such
demand;
(b) in the case of payments made by the Note Trustee on or
after the date of the demand, from the date specified in
such demand, which date shall not be a date earlier than
the date such payments are made.
All remuneration payable to the Note Trustee shall carry
interest at the rate specified in this Clause 15.1.9 (Payment
of amounts due) from the due date thereof.
15.1.10 APPORTIONMENT OF EXPENSES: The Note Trustee shall apportion
the costs, charges, expenses and liabilities incurred by the
Note Trustee in the preparation and execution of the trusts of
the Security Documents (including remuneration of the Note
Trustee) between the several Series of Notes in such manner
and in such amounts as it shall, in its absolute discretion,
consider appropriate.
15.1.11 DISCHARGES: Unless otherwise specifically stated in any
discharge of the Security Documents the provisions of this
Clause 15.1 (Remuneration) shall continue in full force and
effect notwithstanding such discharge.
15.1.12 PAYMENTS: All payments to be made by the Issuer to the Note
Trustee under the Security Documents shall be made free and
clear of, and without withholding or deduction for, any taxes,
duties, assessments or governmental charges of whatever nature
imposed, levied, collected, withheld or assessed by or within
any relevant jurisdiction or any authority therein or thereof
having power to tax, unless such withholding or deduction is
required by law. In that event, the Issuer shall pay such
additional amounts as are necessary to ensure that the Note
Trustee receives such amounts as would have been received by
it had no such withholding or deduction been required.
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15.1.13 VAT: All sums payable by the Issuer to the Note Trustee under
this Note Trust Deed shall be deemed to be exclusive of any
VAT chargeable on any supply by the Note Trustee for which
that sum is the consideration (in whole or in part) for VAT
purposes. Where, under the terms of this Note Trust Deed, the
Note Trustee makes a supply to the Issuer for VAT purposes and
VAT is or becomes chargeable on such supply for which the Note
Trustee is required to account to HM Revenue and Customs, the
Issuer shall pay an amount to the Note Trustee equal to that
VAT (in addition to and at the same time as paying or
providing any other consideration for such supply).
15.2 EXCHANGE RATE INDEMNITY
15.2.1 CURRENCY OF ACCOUNT AND PAYMENT: Unless otherwise specified in
any relevant Note Trust Deed Supplement, the Contractual
Currency will be the sole currency of account and payment for
all sums (including damages) payable by the Issuer under or in
connection with the Security Documents, the other Documents
and the Notes;
15.2.2 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 Note Trustee or any Noteholder
in respect of any sum expressed to be due to it from the
Issuer will only discharge the 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
15.2.3 INDEMNITY: If that Contractual Currency amount is less than
the Contractual Currency amount expressed to be due to the
recipient under the Security Documents, the Issuer will
indemnify the Note Trustee against any Liability sustained by
it as a result. In any event, the Issuer will indemnify the
Note Trustee against the cost of making any such purchase.
15.3 The above indemnities shall constitute obligations of the Issuer
separate and independent from its obligations under the Notes and shall
apply irrespective of any indulgence granted by the Note Trustee or the
Noteholders from time to time and shall continue in full force and
effect notwithstanding the termination of this Note Trust Deed, the
judgment or filing of any proof or proofs in any bankruptcy, insolvency
or liquidation of the Issuer for a liquidated sum or sums in respect of
amounts due under this Note Trust Deed (other than this Clause) or the
Notes. Any such discrepancy as aforesaid shall be deemed to constitute a
loss suffered by the Note Trustee and the Noteholders and no proof or
evidence of any actual loss shall be required by the Issuer or its
liquidator.
16. APPOINTMENT AND RETIREMENT
16.1 ELIGIBILITY; DISQUALIFICATION
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This Note Trust Deed shall always have a Note Trustee which shall be
eligible to act as Note Trustee under TIA Sections 310(a)(1) and
310(a)(2). The Note Trustee shall have a combined capital and surplus of
at least $150,000,000 as set forth in its most recent published annual
report of condition. If the Note Trustee has or shall acquire any
"conflicting interest" within the meaning of TIA Section 310(b), the
Note Trustee and the 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 Issuer are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met. If at any time the
Note Trustee shall cease to be eligible in accordance with the
provisions of this Clause 16.1, the Note Trustee shall resign promptly
in the manner and with the effect specified in Clause 16.4.
16.2 APPOINTMENT OF NOTE TRUSTEES
The power of appointing new trustees of the Security Documents shall be
vested in the Issuer but no person shall be appointed who shall not
previously have been approved by an Extraordinary Resolution of the
Noteholders. A trust corporation may be appointed sole trustee hereof
but subject thereto there shall be at least two trustees hereof at least
one of which shall be a trust corporation. Any appointment of a new
trustee hereof shall as soon as practicable thereafter be notified by
the Issuer to the Agents and the Noteholders. The Noteholders shall
together have the power, exercisable by Extraordinary Resolution, to
remove any trustee or trustees for the time being hereof. The removal of
any trustee shall not become effective unless there remains a Note
Trustee hereof (being a trust corporation) in office after such removal.
16.3 CO-NOTE TRUSTEES
Notwithstanding the provisions of Clause 16.2 (Appointment of Note
Trustees), the Note Trustee may, upon giving prior notice to the Issuer
but without the consent of the Issuer or the Noteholders or anyone else,
appoint any person established or resident in any jurisdiction (whether
a trust corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Note Trustee:
16.3.1 if the Note Trustee considers such appointment to be in the
interests of the Secured Creditors; or
16.3.2 for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed; or
16.3.3 for the purposes of obtaining a judgment in any jurisdiction
or the enforcement in any jurisdiction either of a judgment
already obtained or of the Security Documents or any other
Document.
Such a person shall (subject always to the provisions of this Note Trust
Deed) have such trusts, powers, authorities and discretions (not
exceeding those conferred on the Note Trustee by this Note Trust Deed)
and such duties and obligations as shall be conferred or imposed by the
instrument of appointment. The Note Trustee shall have power in like
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manner to remove any such person. Such reasonable remuneration as the
Note Trustee may pay to any such person, together with any attributable
costs, charges and expenses properly incurred by it in performing its
function as such separate trustee or co-trustee shall for the purposes
of this Note Trust Deed be treated as costs, charges and expenses
incurred by the Note Trustee.
16.4 RETIREMENT OF NOTE TRUSTEES
Any Note Trustee for the time being of the Security Documents may retire
at any time upon giving not less than three calendar months' notice in
writing to the Issuer without assigning any reason therefor and without
being responsible for any costs occasioned by such retirement. The
retirement of any Note Trustee shall not become effective unless there
remains a trustee hereof (being a trust corporation) in office after
such retirement. The Issuer hereby covenants that in the event of the
only trustee hereof which is a trust corporation giving notice under
this Clause it shall use its best endeavours to procure a new trustee,
being a trust corporation, to be appointed and if the Issuer shall fail
to appoint a successor within 60 days of the Note Trustee giving notice
of resignation then, the Note Trustee shall be entitled to appoint
forthwith a new trustee which meets the requirements of the Documents.
16.5 COMPETENCE OF A MAJORITY OF NOTE TRUSTEES
Whenever there shall be more than two trustees hereof the majority of
such trustees shall (provided such majority includes a trust
corporation) be competent to execute and exercise all the trusts,
powers, authorities and discretions vested by the Security Documents in
the Note Trustee generally.
16.6 POWERS ADDITIONAL
The powers conferred by the Security Documents upon the Note Trustee
shall be in addition to any powers which may from time to time be vested
in it by general law or as the holder of any of the Notes.
16.7 ENTIRE AGREEMENT
Except as specifically stated otherwise herein, this Note Trust Deed
together with the relevant Note Trust Deed Supplement 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 Note Trust Deed together with the relevant Note Trust Deed
Supplement. This Note Trust Deed may not be modified, amended, waived or
supplemented except as provided herein.
16.8 MERGER AND INTEGRATION
Any corporation into which the Note Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Note Trustee shall
be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Note Trustee, shall be the successor
of the Note Trustee hereunder, provided such corporation shall be
otherwise
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qualified and eligible under this Clause, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
17. CERTIFICATES AND OPINIONS
17.1 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuer to the Note Trustee to
take any action in relation to Clause 18 (Release of Security), the
Issuer shall furnish to the Note Trustee:
17.1.1 an Officer's Certificate (which shall include the statements
set forth in Clause 17.2 below) stating that, in the opinion
of the signers, all conditions precedent, if any, provided for
in this Note Trust Deed relating to the proposed action have
been complied with; and
17.1.2 an Opinion of Counsel (which shall include the statements set
forth in Clause 17.2 below) stating that, in the opinion of
such counsel, all such conditions precedent, if any, provided
for in this Note Trust Deed relating to the proposed action
have been complied with.
17.2 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION
Each certificate and opinion with respect to compliance with a condition
or covenant provided for in this Note Trust Deed shall include:
17.2.1 a statement that the Person making such certificate or opinion
has read such covenant or condition and the definitions
relating thereto;
17.2.2 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;
17.2.3 a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
17.2.4 a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
18. RELEASE OF SECURITY
Except to the extent expressly provided in this Clause 18 (Release of
Security), the Note Trustee shall execute and do all such deeds, act and
things as may be reasonably necessary to reassign and release property
from the security constituted by this Note Trust Deed as supplemented by
the relevant Note Trust Deed Supplement either in respect of all secured
property or in respect of security created in respect of a particular
Note Trust Deed Supplement, only upon receipt of a notice from the
Issuer accompanied by an Officer's Certificate (as described above) 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
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require any such Independent Certificates, PROVIDED THAT the Issuer
shall not be obliged to issue such notice:
18.1.1 to release all Secured Property from the Security constituted
by this Note Trust Deed and all relevant Note Trust Deed
Supplements, where all outstanding Series of Notes have been
repaid in full and no Noteholder has any further obligation to
make any further subscription payment in respect of such
Notes; or
18.1.2 to release all secured property from the security constituted
in respect of a particular Note Trust Deed Supplement, where
the relevant outstanding Series of Notes issued pursuant to
such Note Trust Deed Supplement have been repaid in full and
no Noteholder under such Note Trust Deed Supplement has any
further obligation to make any further subscription payment in
respect of such Notes.
Whenever any property is to be released from the Security constituted by
this Note Trust Deed as supplemented by the relevant Note Trust Deed
Supplement, the Issuer shall also furnish to the Note Trustee an
Officer's Certificate certifying that either 18.1.1 or 18.1.2 above is
true, and that in the opinion of such Person the proposed release will
not impair the Security under this Note Trust Deed or relevant Note
Trust Deed Supplement in contravention of the provisions hereof.
Following irrevocable discharge in full of the Secured Obligations of
which the Note Trustee has notice, the Note Trustee shall reassign to
the Issuer the Issuer Jersey Secured Property.
Prior to the release of any security granted pursuant to this Note Trust
Deed or any Note Trust Deed Supplement, the Issuer shall, in addition to
any obligation imposed in this Clause 18 or elsewhere in this Note Trust
Deed, furnish to the Note Trustee an Officers' Certificate certifying or
stating the opinion of each person signing such certificate as to the
fair value to the Issuer of the property in relation to which the
security is 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 Issuer is required to furnish to the Note Trustee an
Officers' Certificate certifying or stating the opinion of any signer
thereof as to the matters described in the preceding paragraph, the
Issuer shall also deliver to the Note Trustee an Independent Certificate
as to the same matters, if the fair value to the 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 Issuer, as set forth in the certificates delivered pursuant to this
Clause 18, is 10% or more of the Principal Amount Outstanding, 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 Amount Outstanding.
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Whenever any property is to be released from any Security granted
pursuant to this Note Trust Deed or any Note Trust Deed Supplement, the
Issuer shall also furnish to the Note Trustee an Officer's Certificate
certifying or stating the opinion of each Person signing such
certificate that in the opinion of such person the proposed release will
not impair the security under this Note Trust Deed or any Note Trust
Deed Supplement in contravention of the provisions hereof.
Notwithstanding anything to the contrary contained herein, the Issuer
may (A) collect, liquidate, sell or otherwise dispose of any of its
property as and to the extent permitted or required by the Relevant
Documents, (B) make cash payments out of the Issuer Bank Accounts as and
to the extent permitted or required by the Relevant Documents and (C)
take any other action not inconsistent with the TIA.
19. THIRD PARTY BENEFICIARIES
19.1 This Note Trust Deed will enure to the benefit of and be binding upon
the parties hereto, and, in respect of any Series, the Secured Creditors
named in the relevant Note Trust Deed Supplement, and their respective
successors and permitted assigns as Secured Creditors and beneficiaries
of the Secured Property in respect of a relevant Series;
19.2 To the extent specified in any relevant Note Trust Deed Supplement, any
third party that is not a Secured Creditor of the Secured Property of a
Series, may by execution of such Note Trust Deed Supplement, as a matter
of contract only, be entitled to the benefit of the provisions of this
Note Trust 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
19.3 Except as otherwise provided in this Clause 19 (Third Party
Beneficiaries), no other Person will have any right or obligation
hereunder.
20. ACTIONS BY NOTEHOLDERS
20.1 Subject to the satisfaction of Clauses 11.1 and 11.2, the Note Trustee
shall be bound to take the following actions;
20.1.1 following the occurrence of a Loan Note Event of Default, to
direct the Security Trustee 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 all Series then
issued;
20.1.2 to direct the Security Trustee to waive any of the matters
pursuant to Loan Note Condition 9;
20.1.3 to direct the Security Trustee to enforce its rights under the
Loan Note Issuer Jersey Security Interest; and
20.1.4 any other actions specified in the relevant Note Trust Deed
Supplement;
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21. TIA PREVAILS
21.1 Subject to Clause 21.3, if any provision of this Note Trust Deed limits,
qualifies or conflicts with another provision which is required to be
included in this Note Trust Deed by, and is not subject to a contractual
waiver under the TIA, the required provision of the TIA shall prevail,
however, in relation solely to the Issuer Jersey Security Interest
provided such will not be inconsistent with the provisions of the Jersey
Security Interests Law.
21.2 Subject to Clause 21.3, the Parties agree the provisions of the TIA
(including Sections 310 through 318, inclusive, thereof) that impose
duties on any Person (including the provisions automatically deemed
included unless expressly excluded by this Note Trust Deed) are part of
and govern this Note Trust Deed, whether or not physically contained
herein. If and to the extent that any provision of this Note Trust Deed
limits, qualifies, or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Note
Trust Deed by operation of Sections 310 to 318, inclusive, of the TIA,
such imposed duties or incorporated provision shall control and such
Note Trust Deed provision shall be deemed modified thereby.
21.3 Notwithstanding any other provision of this Note Trust Deed, all
provisions relating to the TIA will only apply as and when this Note
Trust Deed is a "qualified" indenture under the TIA.
22. COMMUNICATIONS BY NOTEHOLDERS WITH OTHER NOTEHOLDERS
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Note Trust Deed or
the Notes. The Issuer, the Note Trustee, the Registrars and anyone else
shall have the protection of TIA Section 312(c).
IN WITNESS WHEREOF this Note Trust Deed is hereby delivered on the date first
above written.
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SCHEDULE 1
TERMS AND CONDITIONS OF THE NOTES
[TO BE INSERTED FROM BASE PROSPECTUS ONCE FINALISED]
- 52 -
SCHEDULE 2
PART A
FORM OF RULE 144A GLOBAL NOTE CERTIFICATE
CUSIP: ____________
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES
LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND
NEITHER THE ISSUER NOR THE SECURITISED PORTFOLIO HAS BEEN REGISTERED UNDER THE
UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS NOTE, REPRESENTS
THAT IT HAS OBTAINED THIS NOTE IN A TRANSACTION IN COMPLIANCE WITH THE
SECURITIES ACT AND ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER
JURISDICTION, AND THE RESTRICTIONS ON SALE AND TRANSFER SET FORTH IN THE TRUST
DEED (THE "TRUST DEED"), DATED 23 MAY, 2006, BETWEEN THE ISSUER AND LAW
DEBENTURE TRUST COMPANY OF NEW YORK (THE "NOTE TRUSTEE"). THE HOLDER HEREOF, BY
ITS ACCEPTANCE OF THIS NOTE, FURTHER REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT
WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE (OR ANY
INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND ALL OTHER
APPLICABLE LAWS OF ANY JURISDICTION AND IN ACCORDANCE WITH THE RESTRICTIONS,
CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE TRUST DEED (I) TO A
TRANSFEREE THAT IS A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT OR (II) TO A TRANSFEREE THAT IS NOT A
U.S. PERSON (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND THAT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT AND, IN THE CASE OF CLAUSES
(I) AND (II), IN A PRINCIPAL AMOUNT WITH RESPECT TO EACH CLASS OF NOTES OF NOT
LESS THAN (EURO)50,000 (OR THE EQUIVALENT THEREOF IN THE SPECIFIED CURRENCY) FOR
THE PURCHASER AND FOR EACH ACCOUNT FOR WHICH IT IS ACTING. EACH PURCHASER OR
TRANSFEREE OF THIS NOTE WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN THE TRUST DEED.
EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER
RESTRICTIONS SET FORTH HEREIN AND IN THE TRUST DEED TO THE TRANSFEREE.
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EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY WHOSE ASSETS INCLUDE
THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY REASON OF 29 C.F.R.
2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY
FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT PURCHASING THIS NOTE ON
BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING AND SUBSEQUENT
DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF ANY SUCH
OTHER EMPLOYEE BENEFIT PLAN, ARE NOT IN VIOLATION OF ANY SUCH SUBSTANTIALLY
SIMILAR LAW).
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. ("CEDE"),
HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE).
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF INTERESTS IN THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST DEED.
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE TRUST DEED. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS
CURRENT PRINCIPAL AMOUNT BY INQUIRY OF HSBC BANK PLC AS THE PRINCIPAL PAYING
AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE TRUST DEED OR ANY OTHER TRANSACTION DOCUMENT, ALL PAYMENTS OF PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUER IN RESPECT OF THE NOTES OR
UNDER ANY TRANSACTION DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF
PAYMENTS AND ONLY FROM, AND TO THE EXTENT OF, THE
- 54 -
SUMS PAID TO, OR NET PROCEEDS RECOVERED BY OR ON BEHALF OF, THE ISSUER IN
RESPECT OF THE SECURITY (AS DEFINED IN THE SECURITY TRUST DEED, DATED 23 MAY,
2006, AMONG TURQUOISE FUNDING 1 LIMITED, TURQUOISE RECEIVABLES TRUSTEE LIMITED,
LAW DEBENTURE TRUST COMPANY OF NEW YORK, ▇▇▇▇▇▇ TRUST COMPANY LIMITED, AND HSBC
BANK PLC (THE "SECURITY TRUST DEED")). IF THE PROCEEDS OF THE SECURITY (AS
DEFINED IN THE SECURITY TRUST DEED) ARE NOT SUFFICIENT FOR THE ISSUER TO MEET
ITS OBLIGATIONS IN RESPECT OF THE NOTES AND OTHER TRANSACTION DOCUMENTS, NO
OTHER ASSETS OF THE ISSUER WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
TURQUOISE CARD BACKED SECURITIES PLC
(incorporated with limited liability under
the laws of England and Wales)
[(POUND)/EUR/U.S.$][AMOUNT]
CLASS [A/B/C] ASSET BACKED [FLOATING/FIXED] RATE NOTES DUE [o]
RULE 144A GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Rule 144A Global Note Certificate is issued in respect of the above
captioned Notes. The Notes are constituted by, are subject to, and have
the benefit of the Note Trust Deed and are the subject of the Agency
Agreement and the other Documents.
2. INTERPRETATION
2.1 REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this Rule 144A Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
CEDE & CO
is the person Registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this Rule 144A Global Note
Certificate.
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4. PROMISE TO PAY
The Issuer, for value received, promises to pay to the Holder such
principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this Rule 144A Global Note
Certificate for the time being on the dates and in the amounts specified
in the Conditions or on such earlier date or dates as the same may
become payable in accordance with the Conditions, and to pay interest on
the unpaid balance of such principal sum in arrear on the dates and at
the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Rule 144A Global Note Certificate shall be limited to
transfers in whole, but not in part, to nominees of The Depository Trust
Company ("DTC") or to a successor of DTC or to such successor's
respective nominee.
6. EXCHANGE FOR RULE 144A INDIVIDUAL NOTE CERTIFICATES
This Rule 144A Global Note Certificate will be exchanged in whole but
not in part only for duly authenticated and completed individual note
certificates ("RULE 144A INDIVIDUAL NOTE CERTIFICATES") in substantially
the form (subject to completion) set out in Schedule 3 - Part A (Form of
Rule 144A Individual Note Certificate) to the Note Trust Deed if (i) DTC
notifies the Note Trustee or the Principal Paying Agent that it is
unwilling or unable to continue as depositary for the Rule 144A Global
Note Certificate or DTC ceases to be a "clearing agency" registered
under the United States Securities and Exchange Act of 1934, as amended,
and a successor depositary or clearing system is not appointed by the
Trustee or the Principal Paying Agent within 90 days of receiving such
notice; or (ii) the Issuer or any Paying Agent or any other person is or
will be required to make any withholding or deduction from any payment
in respect of the Notes for or on account of any present or future
taxes, duties, assessments or governmental charges of whatever nature or
the Issuer suffers or will suffer any other disadvantage as a result of
such change, which withholding or deduction would not be required or
other disadvantage would not be suffered (as the case may be) if the
Notes were in individual certificate form (each, an "EXCHANGE EVENT").
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of Rule 144A Individual Note Certificates). The Issuer shall notify the
Holder of the occurrence of any such event as soon as practicable
thereafter.
7. DELIVERY OF RULE 144A INDIVIDUAL NOTE CERTIFICATES
Whenever this Rule 144A Global Note Certificate is to be exchanged for
Rule 144A Individual Note Certificates, such Rule 144A Individual Note
Certificates shall be issued in an aggregate principal amount equal to
the Principal Amount Outstanding of this Rule 144A Global Note
Certificate against the surrender of this Rule 144A Global Note
Certificate at the Specified Office of the Registrar within five
business days of:
7.1 the delivery to the Registrar, by or on behalf of the Holder, and DTC,
of such information as is required to complete and deliver such Rule
144A Individual Note
- 56 -
Certificates (including, without limitation, the names and addresses of
the persons in whose names the Rule 144A Individual Note Certificates
are to be registered and the principal amount of each such person's
holding); and
7.2 the delivery to the Registrar of a certificate given by or on behalf of
the holder of each beneficial interest in this Rule 144A Global Note
Certificate stating either (i) that such holder is not transferring its
interest at the time of such exchange or (ii) that the transfer or
exchange of such interest has been made in compliance with the transfer
restrictions applicable to the Notes and that the person transferring
such interest reasonably believes that the person acquiring such
interest is a qualified institutional buyer (as defined in Rule 144A
("RULE 144A") under the United States Securities Act of 1933, as amended
(the "SECURITIES ACT")) and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A under the Securities
Act.
Such exchange shall be effected in accordance with the provisions of the
Agency Agreement and the regulations concerning the transfer and
registration of Notes scheduled thereto and, in particular, shall be
effected without charge to any Holder, but against such indemnity as the
Registrar may require in respect of any tax or other duty of whatsoever
nature which may be levied or imposed in connection with such exchange.
In this paragraph, "BUSINESS DAY" means a day on which commercial banks
are open for business (including dealings in foreign currencies) in the
city in which the Registrar has its Specified Office.
8. TRANSFER AND EXCHANGE FOR AN INTEREST IN THE REGULATION S GLOBAL NOTE
CERTIFICATE
If a holder of a beneficial interest in the Notes represented by this
Rule 144A Global Note Certificate wishes at any time to transfer such
beneficial interest to a person who wishes to take delivery thereof in
the form of a beneficial interest in the unrestricted global note
certificate issued in relation to the Notes (the "REGULATION S GLOBAL
NOTE CERTIFICATE"), such holder may transfer such beneficial interest in
accordance with the rules and operating procedures of DTC, Euroclear
Bank S.A./N.V., as operator of the Euroclear system, ("EUROCLEAR") and
Clearstream Banking, societe anonyme, Luxembourg ("CLEARSTREAM") (as
applicable) and the terms of this paragraph. Upon receipt by the
Registrar of:
8.1 notification by DTC, or its custodian or nominee, that the appropriate
debit entries have been made in the accounts of the relevant
participants of DTC;
8.2 notification by Euroclear and/or Clearstream (as applicable), or their
respective custodians or depositaries, that the appropriate credit
entries have been made in the accounts of the relevant participants of
Euroclear and/or Clearstream (as the case may be); and
8.3 a certificate in the form of the Schedule 5 - Part A (Form of Regulation
S Transfer Certificate) to the Trust Deed given by the holder of such
beneficial interest requesting such transfer or exchange and stating
that the transfer or exchange of such interest has been made in
compliance with the transfer restrictions applicable to the Notes and
that (i) such transfer or exchange has been made pursuant to and in
accordance with Regulation
- 57 -
S ("REGULATION S") under the Securities Act or (ii) the Notes are being
exchanged or transferred pursuant to an exemption from registration
provided by Rule 144 under the Securities Act,
the Issuer shall procure that (i) the Registrar decreases the aggregate
principal amount of this Rule 144A Global Note Certificate by the
principal amount of Notes the subject of such transfer and increases the
aggregate principal amount of the Regulation S Global Note Certificate
by such principal amount, (ii) appropriate entries are made in the
records held for DTC so as to reflect such decrease and (iii)
appropriate entries are made in the records of the depositary for
Euroclear and/or Clearstream so as to reflect such increase.
9. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Rule 144A Global
Note Certificate shall have the benefit of, and be subject to, the
Conditions and, for the purposes of this Rule 144A Global Note
Certificate, any reference in the Conditions to "INDIVIDUAL NOTE
CERTIFICATE" or "INDIVIDUAL NOTE CERTIFICATES" shall, except where the
context otherwise requires, be construed so as to include this Rule 144A
Global Note Certificate.
10. NOTICES
Notwithstanding the Notices Condition, so long as this Rule 144A Global
Note Certificate is held on behalf of DTC or any other clearing system
(an "ALTERNATIVE CLEARING SYSTEM"), notices to Holders of Notes
represented by this Rule 144A Global Note Certificate may be given by
delivery of the relevant notice to DTC or (as the case may be) such
Alternative Clearing System.
11. LEGENDS
The statements set out in the legends above are an integral part of this
Rule 144A Global Note Certificate and, by acceptance hereof, each Holder
of this Rule 144A Global Note Certificate agrees to be subject to and
bound by such legends.
12. DETERMINATION OF ENTITLEMENT
This Rule 144A Global Note Certificate is evidence of entitlement only
and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
Rule 144A Global Note Certificate.
13. AUTHENTICATION
This Rule 144A Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
14. GOVERNING LAW
This Rule 144A Global Note Certificate, and all matters arising from or
connected with it are governed by, and shall be construed in accordance
with, English law.
- 58 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
TURQUOISE CARD BACKED SECURITIES PLC
By: _______________________________
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
[HSBC BANK USA, NATIONAL ASSOCIATION]
as Registrar
without recourse, warranty or liability
By: _______________________________
[manual signature]
(duly authorised)
- 59 -
FORM OF TRANSFER
FOR VALUE RECEIVED __________________________________, being the registered
holder of this Rule 144A Global Note Certificate, hereby transfers
to______________________________________________________________________________
________________________________________________________________________________
of______________________________________________________________________________
________________________________________________________________________________
________________ [(pound)/EUR/U.S.$] ___________________________ in principal
amount of the [(pound)/EUR/U.S.$] [amount] Class [A/B/C] Asset Backed
[Floating/Fixed] Rate Notes due [o] (the "Notes") of Turquoise Card Backed
Securities plc (the "Issuer") and irrevocably requests and authorises [HSBC Bank
USA, National Association], in its capacity as registrar in relation to the
Notes (or any successor to [HSBC Bank USA, National Association], in its
capacity as such) to effect the relevant transfer by means of appropriate
entries in the register kept by it.
Dated: _______________________________
By: _______________________________
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of
transfer is signed must correspond with the name of the
registered holder as it appears on the face of this Rule 144A
Global Note Certificate.
(b) A representative of such registered holder should state the
capacity in which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by
the registered holder or be certified by a recognised bank,
notary public or in such other manner as the Registrar may
require.
- 60 -
[Attached to each Rule 144A Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 of the Note Trust Deed]
[At the foot of the Terms and Conditions:]
[REGISTRAR AND PAYING AGENT]
HSBC BANK USA, NATIONAL ASSOCIATION
[10 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇]
PAYING AGENT AND TRANSFER AGENT
[o]
[o]
- 61 -
PART B
FORM OF REGULATION S GLOBAL NOTE CERTIFICATE
ISIN: ____________
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES
LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND
NEITHER THE ISSUER NOR THE SECURITISED PORTFOLIO HAS BEEN REGISTERED UNDER THE
UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS NOTE, REPRESENTS
THAT IT HAS OBTAINED THIS NOTE IN A TRANSACTION IN COMPLIANCE WITH THE
SECURITIES ACT AND ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER
JURISDICTION, AND THE RESTRICTIONS ON SALE AND TRANSFER SET FORTH IN THE TRUST
DEED (THE "TRUST DEED"), DATED [23 MAY], 2006, BETWEEN THE ISSUER AND LAW
DEBENTURE TRUST COMPANY OF NEW YORK (THE "NOTE TRUSTEE"). THE HOLDER HEREOF, BY
ITS ACCEPTANCE OF THIS NOTE, FURTHER REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT
WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE (OR ANY
INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND ALL OTHER
APPLICABLE LAWS OF ANY JURISDICTION AND IN ACCORDANCE WITH THE RESTRICTIONS,
CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE TRUST DEED (I) TO A
TRANSFEREE THAT IS A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT OR (II) TO A TRANSFEREE THAT IS NOT A
U.S. PERSON (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND THAT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT AND, IN THE CASE OF CLAUSES
(I) AND (II), IN A PRINCIPAL AMOUNT WITH RESPECT TO EACH CLASS OF NOTES OF NOT
LESS THAN (EURO)50,000 (OR THE EQUIVALENT THEREOF IN THE SPECIFIED CURRENCY) FOR
THE PURCHASER AND FOR EACH ACCOUNT FOR WHICH IT IS ACTING. EACH PURCHASER OR
TRANSFEREE OF THIS NOTE WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN THE TRUST DEED.
EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER
RESTRICTIONS SET FORTH HEREIN AND IN THE TRUST DEED TO THE TRANSFEREE.
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE
- 62 -
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A "PLAN"
WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), ANY PERSON OR ENTITY WHOSE ASSETS INCLUDE THE ASSETS OF
ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY REASON OF 29 C.F.R. 2510.3-101 OR
OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY FEDERAL, STATE,
LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE, AND IS NOT PURCHASING THIS NOTE ON BEHALF OF ANY SUCH
PERSON, OR (B) THE PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THIS NOTE
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE (OR, IN THE CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT
PLAN, ARE NOT IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [HSBC BANK PLC
("HSBC")], HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. ("EUROCLEAR") AND/OR
CLEARSTREAM BANKING, SOCIETE ANONYME ("CLEARSTREAM") TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF [HSBC] OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND ANY PAYMENT HEREON
IS MADE TO [HSBC)].
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART,
TO NOMINEES OF EUROCLEAR AND CLEARSTREAM OR TO SUCCESSORS THEREOF OR SUCH
SUCCESSORS' NOMINEE AND TRANSFERS OF INTERESTS IN THIS NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE TRUST DEED.
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE TRUST DEED. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS
CURRENT PRINCIPAL AMOUNT BY INQUIRY OF [HSBC BANK PLC] AS THE PRINCIPAL PAYING
AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE TRUST DEED OR ANY OTHER TRANSACTION DOCUMENT, ALL PAYMENTS OF PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUER IN RESPECT OF THE NOTES OR
UNDER ANY TRANSACTION DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF
PAYMENTS AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS
RECOVERED BY OR ON BEHALF OF, THE
- 63 -
ISSUER IN RESPECT OF THE SECURITY (AS DEFINED IN THE SECURITY TRUST DEED, DATED
23 MAY 2006, AMONG TURQUOISE FUNDING 1 LIMITED, TURQUOISE RECEIVABLES TRUSTEE
LIMITED, LAW DEBENTURE TRUST COMPANY OF NEW YORK, ▇▇▇▇▇▇ TRUST COMPANY LIMITED
AND HSBC BANK PLC (THE "SECURITY TRUST DEED")). IF THE PROCEEDS OF THE SECURITY
(AS DEFINED IN THE SECURITY TRUST DEED) ARE NOT SUFFICIENT FOR THE ISSUER TO
MEET ITS OBLIGATIONS IN RESPECT OF THE NOTES AND OTHER TRANSACTION DOCUMENTS, NO
OTHER ASSETS OF THE ISSUER WILL BE AVAILABLE TO MEET SUCH INSUFFICIENCY.
TURQUOISE CARD BACKED SECURITIES PLC
(incorporated with limited liability under
the laws of England and Wales)
[(POUND)/EUR/U.S.$][AMOUNT]
CLASS [A/B/C] ASSET BACKED [FLOATING/FIXED] RATE NOTES DUE [o]
REGULATION S GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This Regulation S Global Note Certificate is issued in respect of the
above captioned Notes. The Notes are constituted by, are subject to, and
have the benefit of the Note Trust Deed and are the subject of the
Agency Agreement and the other Documents.
2. INTERPRETATIONS
2.1 REFERENCE TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this Regulation S Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
[COMMON DEPOSITORY]
(OR NOMINEE)
- 64 -
is the person registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this Regulation S Global Note
Certificate.
4. PROMISE TO PAY
The Issuer, for value received, promises to pay to the Holder such
principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this Regulation S Global Note
Certificate for the time being on the dates and in the amounts specified
in the Conditions or on such earlier date or dates as the same may
become payable in accordance with the Conditions, and to pay interest on
the unpaid balance of such principal sum in arrear on the dates and at
the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
5. TRANSFERS IN WHOLE
Transfers of this Regulation S Global Note Certificate shall be limited
to transfers in whole, but not in part, to nominees of Euroclear Bank
S.A./N.V., as operator of the Euroclear system, ("EUROCLEAR") and
Clearstream Banking, societe anonyme, Luxembourg ("CLEARSTREAM") or to a
successor of Euroclear and Clearstream or to such successors' respective
nominee.
6. EXCHANGE FOR REGULATION S INDIVIDUAL NOTE CERTIFICATES
This Regulation S Global Note Certificate will be exchanged in whole but
not in part only for duly authenticated and completed individual note
certificates ("REGULATION S INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 3 -
Part B (Form of Regulation S Individual Note Certificate) to the Note
Trust Deed if (i) Euroclear or Clearstream is closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory
or otherwise) or announces an intention permanently to cease business or
does in fact do so or (ii) as a result of any amendment to, or change
in, the laws or regulations of the United Kingdom (or of any political
sub-division thereof), or of any authority therein or thereof having
power to tax, or in the interpretation by a revenue authority or a court
of, or in the administration of, such laws or regulations which become
effective on or after the date of issue of this Global Note Certificate,
the Issuer or any Paying Agent is or will be required to make any
deduction or withholding from any payment in respect of the Notes which
would not be required were the relevant Notes in individual definitive
form and a certificate to such effect signed by an authorised director
of the Issuer is delivered to the Note Trustee, (each, an "EXCHANGE
EVENT").
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of Regulation S Individual Note Certificates) below. The Issuer shall
notify the Holder of the occurrence of any such event as soon as
practicable thereafter.
7. DELIVERY OF REGULATION S INDIVIDUAL NOTE CERTIFICATES
Whenever this Regulation S Global Note Certificate is to be exchanged
for Regulation S Individual Note Certificates, such Regulation S
Individual Note Certificates shall be
- 65 -
issued in an aggregate principal amount equal to the Principal Amount
Outstanding of this Regulation S Global Note Certificate within five
business days of the delivery, by or on behalf of the Holder, Euroclear
and/or Clearstream, to the Registrar of such information as is required
to complete and deliver such Regulation S Individual Note Certificates
(including, without limitation, the names and addresses of the persons
in whose names the Regulation S Individual Note Certificates are to be
registered and the principal amount of each such person's holding)
against the surrender of this Regulation S Global Note Certificate at
the Specified Office of the Registrar. Such exchange shall be effected
in accordance with the provisions of the Agency Agreement and the
regulations concerning the transfer and registration of Notes scheduled
thereto and, in particular, shall be effected without charge to any
Holder, but against such indemnity as the Registrar may require in
respect of any tax or other duty of whatsoever nature which may be
levied or imposed in connection with such exchange. In this paragraph,
"BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in foreign currencies) in the city in which
the Registrar has its Specified Office.
8. TRANSFER AND EXCHANGE FOR AN INTEREST IN THE RULE 144A GLOBAL NOTE
CERTIFICATE
If a holder of a beneficial interest in the Notes represented by this
Regulation S Global Note Certificate wishes at any time to transfer such
beneficial interest to a person who wishes to take delivery thereof in
the form of a beneficial interest in the Rule 144A global note
certificate issued in relation to the Notes (the "RULE 144A GLOBAL NOTE
CERTIFICATE"), such holder may transfer such beneficial interest in
accordance with the rules and operating procedures of Euroclear and/or
Clearstream and the terms of this paragraph. Upon receipt by the
Registrar of:
8.1 notification by Euroclear and/or Clearstream (as applicable), or their
respective custodians or depositaries, that the appropriate debit
entries have been made in the accounts of the relevant participants of
Euroclear and/or Clearstream (as the case may be);
8.2 notification by The Depository Trust Company ("DTC"), or its custodian
or nominee, that the appropriate credit entries have been made in the
accounts of the relevant participants of DTC; and
8.3 a certificate in the form of Schedule 5 - Part B (Form of Rule 144A
Transfer Certificate) to the Note Trust Deed given by the holder of such
beneficial interest requesting such transfer or exchange and, in the
case of transfer or exchange on or prior to the fortieth day after the
later of the commencement of the offering and the date of issue of this
Regulation S Global Note Certificate, stating that the transfer or
exchange of such interest has been made in compliance with the transfer
restrictions applicable to the Notes and that the person transferring
such interest in this Regulation S Global Note Certificate reasonably
believes that the person acquiring such interest in the Rule 144A Global
Note Certificate is a qualified institutional buyer (as defined in Rule
144A under the United States Securities Act of 1933, as amended (the
"SECURITIES ACT")) and is
- 66 -
obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A under the Securities Act,
the Issuer shall procure that (i) the Registrar decreases the aggregate
principal amount of this Regulation S Global Note Certificate by the
principal amount of Notes the subject of such transfer and increases the
aggregate principal amount of the Rule 144A Global Note Certificate by
such principal amount; (ii) appropriate entries are made in the records
of the depositary for Euroclear and Clearstream so as to reflect such
decrease and (iii) appropriate entries are made in the records held for
DTC so as to reflect such increase.
9. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this Regulation S
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this Regulation S Global Note
Certificate, any reference in the Conditions to "INDIVIDUAL NOTE
CERTIFICATE" or "INDIVIDUAL NOTE CERTIFICATES" shall, except where the
context otherwise requires, be construed so as to include this
Regulation S Global Note Certificate.
10. NOTICES
Notwithstanding the Notices Condition, so long as this Regulation S
Global Note Certificate is held on behalf of Euroclear, Clearstream or
any other clearing system (an "ALTERNATIVE CLEARING SYSTEM"), notices to
Holders of Notes represented by this Regulation S Global Note
Certificate may be given by delivery of the relevant notice to
Euroclear, Clearstream or (as the case may be) such Alternative Clearing
System.
11. LEGENDS
The statements set out in the legends above are an integral part of this
Regulation S Global Note Certificate and, by acceptance hereof, each
Holder of this Regulation S Global Note Certificate agrees to be subject
to and bound by such legends.
12. DETERMINATION OF ENTITLEMENT
This Regulation S Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
Regulation S Global Note Certificate.
13. AUTHENTICATION
This Regulation S Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
14. GOVERNING LAW
This Regulation S Global Note Certificate, and all matters arising from
or connected with it, are governed by, and shall be construed in
accordance with, English law.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
- 67 -
TURQUOISE CARD BACKED SECURITIES PLC
By: _______________________________
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
[HSBC Bank plc]
as Registrar
without recourse, warranty or liability
By: _______________________________
[manual signature]
(duly authorised)
- 68 -
FORM OF TRANSFER
FOR VALUE RECEIVED _____________________, being the registered holder of this
Regulation S Global Note Certificate, hereby transfers to ______________________
________________________________________________________________________________
of______________________________________________________________________________
________________________________________________________________________________
________________________________, [(pound)/EUR/U.S.$] ______________________ in
principal amount of the [(pound)/EUR/U.S.$] [amount] [Class [A/B/C] Asset Backed
[Floating/Fixed] Rate Notes due [o]] (the "Notes") of Turquoise Card Backed
Securities plc (the "Issuer") and irrevocably requests and authorises [HSBC Bank
plc], in its capacity as registrar in relation to the Notes (or any successor to
[HSBC Bank plc], in its capacity as such) to effect the relevant transfer by
means of appropriate entries in the register kept by it.
Dated: _______________________________
By: _______________________________
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of
transfer is signed must correspond with the name of the
registered holder as it appears on the face of this Regulation S
Global Note Certificate.
(b) A representative of such registered holder should state the
capacity in which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by
the registered holder or be certified by a recognised bank,
notary public or in such other manner as the Registrar may
require.
- 69 -
[Attached to each Regulation S Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 of the Note Trust Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR AND PAYING AGENT
[HSBC BANK PLC]
[8 CANADA SQUARE, LONDON, ▇▇▇ ▇▇▇]
PAYING AGENT AND TRANSFER AGENT
[o]
[o]
- 70 -
PART C
FORM OF SEC-REGISTERED GLOBAL NOTE CERTIFICATE
Registered Number: ____________
CUSID: _______________________________
ISIN: _______________________________
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY WHOSE ASSETS INCLUDE
THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY REASON OF 29 C.F.R.
2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY
FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT PURCHASING THIS NOTE ON
BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING AND SUBSEQUENT
DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF ANY SUCH
OTHER EMPLOYEE BENEFIT PLAN, ARE NOT IN VIOLATION OF ANY SUCH SUBSTANTIALLY
SIMILAR LAW).
[ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. ("CEDE"),
HAS AN INTEREST HEREIN, UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE OR OF SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE).
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART,
TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE.]*
[ANY TRANSFER, PLEDGE OR OTHER USE OF THIS NOTE FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED
* Delete for euro or sterling issuance
- 71 -
OWNER HEREOF, [HSBC BANK PLC ("HSBC")], HAS AN INTEREST HEREIN, UNLESS THIS NOTE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V.
("EUROCLEAR") AND CLEARSTREAM BANKING, SOCIETE ANONYME ("CLEARSTREAM") TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF [HSBC] OR OF SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR AND CLEARSTREAM (AND ANY
PAYMENT HEREON IS MADE TO [HSBC)].
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART,
TO NOMINEES OF EUROCLEAR AND CLEARSTREAM OR TO SUCCESSORS THEREOF OR SUCH
SUCCESSORS' NOMINEE.] **
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE TRUST DEED (THE "TRUST
DEED"), DATED [23] MAY 2006, BETWEEN THE ISSUER AND LAW DEBENTURE TRUST COMPANY
OF NEW YORK (THE "NOTE TRUST DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY
PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF [HSBC] AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE TRUST DEED OR ANY OTHER TRANSACTION DOCUMENT, ALL PAYMENTS OF PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUER IN RESPECT OF THE NOTES OR
UNDER ANY TRANSACTION DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF
PAYMENTS AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS
RECOVERED BY OR ON BEHALF OF, THE ISSUER IN RESPECT OF THE SECURITY (AS DEFINED
IN THE SECURITY TRUST DEED, DATED 23 MAY, 2006, AMONG TURQUOISE FUNDING 1
LIMITED, TURQUOISE RECEIVABLES TRUSTEE LIMITED, LAW DEBENTURE TRUST COMPANY OF
NEW YORK, ▇▇▇▇▇▇ TRUST COMPANY LIMITED AND HSBC BANK PLC (THE "SECURITY TRUST
DEED")). IF THE PROCEEDS OF THE SECURITY (AS DEFINED IN THE SECURITY TRUST DEED)
ARE NOT SUFFICIENT FOR THE ISSUER TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER TRANSACTION DOCUMENTS, NO OTHER ASSETS OF THE ISSUER WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
** Delete for US dollar issuance
- 72 -
TURQUOISE CARD BACKED SECURITIES PLC
(incorporated with limited liability under
the laws of England and Wales)
[(pound)/EUR/U.S.$][amount]
Class [A/B/C] Asset Backed [Floating/Fixed] Rate Notes due [o]
SEC-REGISTERED GLOBAL NOTE CERTIFICATE
1. INTRODUCTION
This SEC-Registered Global Note Certificate is issued in respect of the
above captioned Notes. The Notes are constituted by, are subject to, and
have the benefit of the Note Trust Deed and are the subject of the
Agency Agreement and the other Documents.
2. INTERPRETATION
2.1 REFERENCES TO CONDITIONS
Any reference herein to the "CONDITIONS" is to the terms and conditions
of the Notes attached hereto and any reference to a numbered "CONDITION"
is to the correspondingly numbered provision thereof.
2.2 DEFINITIONS
In this SEC-Registered Global Note Certificate, unless otherwise defined
herein or the context requires otherwise, words and expressions have the
meanings and constructions ascribed to them in the Conditions.
3. REGISTERED HOLDER
This is to certify that:
[NOMINEE]
is the person Registered in the Register maintained by the Registrar in
relation to the Notes as the duly registered holder (the "HOLDER") of
the Notes represented from time to time by this SEC-Registered Global
Note Certificate.
4. PROMISE TO PAY
The Issuer, for value received, promises to pay to the Holder such
principal sum as is noted on the Register at the time of payment as
being the Principal Amount Outstanding of this SEC-Registered Global
Note Certificate for the time being on the dates and in the amounts
specified in the Conditions or on such earlier date or dates as the same
may become payable in accordance with the Conditions, and to pay
interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any
additional amounts payable in accordance with the Conditions, all
subject to and in accordance with the Conditions.
- 73 -
5. TRANSFER OF THIS SEC-REGISTERED GLOBAL NOTE CERTIFICATE
This SEC-Registered Global Note Certificate is registered in the name of
[Nominee], as nominee for (i) Euroclear Bank S.A./N.V., as operator of
the Euroclear system, ("EUROCLEAR") and Clearstream Banking, societe
anonyme, Luxembourg ("CLEARSTREAM") or (ii) The Depository Trust Company
("DTC") or its nominee Cede. Transfer of this SEC-Registered Global Note
Certificate shall be limited to transfers in whole, but not in part, to
nominees of Euroclear and Clearstream or DTC or to their successors or
to such successors' respective nominees.
6. EXCHANGE FOR SEC-REGISTERED INDIVIDUAL NOTE CERTIFICATES
This SEC-Registered Global Note Certificate will be exchanged in whole
but not in part only for duly authenticated and completed individual
note certificates ("SEC-REGISTERED INDIVIDUAL NOTE CERTIFICATES") in
substantially the form (subject to completion) set out in Schedule 3 -
Part C (Form of SEC-Registered Individual Note Certificate) to the Note
Trust Deed if [(i) DTC notifies the Note Trustee or the Principal Paying
Agent that it is unwilling or unable to continue as depositary for the
SEC-Registered Global Note Certificate or DTC ceases to be a "clearing
agency" registered under the United States Securities and Exchange Act
of 1934, as amended, and a successor depositary or clearing system is
not appointed by the Trustee or the Principal Paying Agent within 90
days of receiving such notice; or (ii) the Issuer or any Paying Agent or
any other person is or will be required to make any withholding or
deduction from any payment in respect of the Notes for or on account of
any present or future taxes, duties, assessments or governmental charges
of whatever nature or the Issuer suffers or will suffer any other
disadvantage as a result of such change, which withholding or deduction
would not be required or other disadvantage would not be suffered (as
the case may be) if the Notes were in individual certificate form (each,
an "EXCHANGE EVENT").]* [(i) Euroclear or Clearstream is closed for
business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) or announces an intention permanently
to cease business or does in fact do so or (ii) as a result of any
amendment to, or change in, the laws or regulations of the United
Kingdom (or of any political sub-division thereof), or of any authority
therein or thereof having power to tax, or in the interpretation by a
revenue authority or a court of, or in the administration of, such laws
or regulations which become effective on or after the date of issue of
this Global Note Certificate, the Issuer or any Paying Agent is or will
be required to make any deduction or withholding from any payment in
respect of the Notes which would not be required were the relevant Notes
in individual definitive form and a certificate to such effect signed by
an authorised director of the Issuer is delivered to the Note Trustee,
(each, an "EXCHANGE EVENT").]**
* Delete for sterling or euro issuance.
** Delete for US dollar issuance.
- 74 -
Such exchange shall be effected in accordance with paragraph 7 (Delivery
of SEC-Registered Individual Note Certificates). The Issuer shall notify
the Holder of the occurrence of any such event as soon as practicable
thereafter.
7. DELIVERY OF SEC-REGISTERED INDIVIDUAL NOTE CERTIFICATES
Whenever this SEC-Registered Global Note Certificate is to be exchanged
for SEC-Registered Individual Note Certificates, such SEC-Registered
Individual Note Certificates shall be issued in an aggregate principal
amount equal to the Principal Amount Outstanding of this SEC-Registered
Global Note Certificate against the surrender of this SEC-Registered
Global Note Certificate at the Specified Office of the Registrar within
five business days of the delivery to the Registrar, by or on behalf of
the Holder, or Euroclear and/or Clearstream or DTC, of such information
as is required to complete and deliver such SEC-Registered Individual
Note Certificates (including, without limitation, the names and
addresses of the persons in whose names the SEC-Registered Individual
Note Certificates are to be registered and the principal amount of each
such person's holding). Such exchange shall be effected in accordance
with the provisions of the Agency Agreement and the regulations
concerning the transfer and registration of Notes scheduled thereto and,
in particular, shall be effected without charge to any Holder, but
against such indemnity as the Registrar may require in respect of any
tax or other duty of whatsoever nature which may be levied or imposed in
connection with such exchange. In this paragraph, "BUSINESS DAY" means a
day on which commercial banks are open for business (including dealings
in foreign currencies) in the city in which the Registrar has its
Specified Office.
8. CONDITIONS APPLY
Save as otherwise provided herein, the Holder of this SEC-Registered
Global Note Certificate shall have the benefit of, and be subject to,
the Conditions and, for the purposes of this SEC-Registered Global Note
Certificate, any reference in the Conditions to "INDIVIDUAL NOTE
CERTIFICATE" or "INDIVIDUAL NOTE CERTIFICATES" shall, except where the
context otherwise requires, be construed so as to include this
SEC-Registered Global Note Certificate.
9. NOTICES
Notwithstanding the Notices Condition, so long as this SEC-Registered
Global Note Certificate is held on behalf of Euroclear and/or
Clearstream or DTC or any other clearing system (an "ALTERNATIVE
CLEARING SYSTEM"), notices to Holders of Notes represented by this
SEC-Registered Global Note Certificate may be given by delivery of the
relevant notice to Euroclear and/or Clearstream or DTC or such
Alternative Clearing System (as the case may be).
10. LEGENDS
The statements set out in the legends above are an integral part of this
SEC-Registered Global Note Certificate and, by acceptance hereof, each
Holder of this SEC-Registered Global Note Certificate agrees to be
subject to and bound by such legends.
11. DETERMINATION OF ENTITLEMENT
- 75 -
This SEC-Registered Global Note Certificate is evidence of entitlement
only and is not a document of title. Entitlements are determined by the
Register and only the Holder is entitled to payment in respect of this
SEC-Registered Global Note Certificate.
12. AUTHENTICATION
This SEC-Registered Global Note Certificate shall not be valid for any
purpose until it has been authenticated for and on behalf of the
Registrar.
13. GOVERNING LAW
This SEC-Registered Global Note Certificate, and all matters arising
from or connected with it are governed by, and shall be construed in
accordance with, English law.
- 76 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
TURQUOISE CARD BACKED SECURITIES PLC
By: _______________________________
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
[HSBC BANK PLC OR HSBC BANK USA, NATIONAL ASSOCIATION, AS APPLICABLE]
as Registrar
without recourse, warranty or liability
By: _______________________________
[manual signature]
(duly authorised)
- 77 -
FORM OF TRANSFER
FOR VALUE RECEIVED _______________________________________, being the registered
holder of this SEC-Registered Global Note Certificate, hereby transfers
to______________________________________________________________________________
________________________________________________________________________________
of______________________________________________________________________________
________________________________________________________________________________
___________________, [(pound)/EUR/U.S.$] __________________________ in principal
amount of the [(pound)/EUR/U.S.$] [amount] Class [A/B/C] Asset Backed
[Floating/Fixed] Rate Notes due [o] (the "NOTES") of Turquoise Card Backed
Securities plc (the "ISSUER") and irrevocably requests and authorises [HSBC Bank
plc or HSBC Bank USA, National Association, as applicable], in its capacity as
registrar in relation to the Notes (or any successor to [HSBC Bank plc or HSBC
Bank USA, National Association, as applicable], in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the register
kept by it.
Dated: _______________________________
By: _______________________________
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of
transfer is signed must correspond with the name of the
registered holder as it appears on the face of this
SEC-Registered Global Note Certificate.
(b) A representative of such registered holder should state the
capacity in which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by
the registered holder or be certified by a recognised bank,
notary public or in such other manner as the Registrar may
require.
- 78 -
[Attached to each SEC-Registered Global Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 of the Note Trust Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR [AND PAYING AGENT]
[HSBC Bank plc or HSBC Bank USA, National Association, as applicable]
[8 ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
or
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇]
PAYING AGENT AND TRANSFER AGENT
[o]
[o]
- 79 -
SCHEDULE 3
PART A
FORM OF RULE 144A INDIVIDUAL NOTE CERTIFICATE
Serial Number: ____________
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES
LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND
NEITHER THE ISSUER NOR THE SECURITISED PORTFOLIO HAS BEEN REGISTERED UNDER THE
UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS NOTE, REPRESENTS
THAT IT HAS OBTAINED THIS NOTE IN A TRANSACTION IN COMPLIANCE WITH THE
SECURITIES ACT AND ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER
JURISDICTION, AND THE RESTRICTIONS ON SALE AND TRANSFER SET FORTH IN THE TRUST
DEED (THE "TRUST DEED"), DATED 23 MAY, 2006, BETWEEN THE ISSUER AND LAW
DEBENTURE TRUST COMPANY OF NEW YORK (THE "NOTE TRUSTEE"). THE HOLDER HEREOF, BY
ITS ACCEPTANCE OF THIS NOTE, FURTHER REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT
WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE (OR ANY
INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND ALL OTHER
APPLICABLE LAWS OF ANY JURISDICTION AND IN ACCORDANCE WITH THE RESTRICTIONS,
CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE TRUST DEED (I) TO A
TRANSFEREE THAT IS A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT OR (II) TO A TRANSFEREE THAT IS NOT A
U.S. PERSON (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND THAT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT AND, IN THE CASE OF CLAUSES
(I) AND (II), IN A PRINCIPAL AMOUNT WITH RESPECT TO EACH CLASS OF NOTES OF NOT
LESS THAN (EURO)50,000 (OR THE EQUIVALENT THEREOF IN THE SPECIFIED CURRENCY) FOR
THE PURCHASER AND FOR EACH ACCOUNT FOR WHICH IT IS ACTING. EACH PURCHASER OR
TRANSFEREE OF THIS NOTE WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN THE TRUST DEED.
EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER
RESTRICTIONS SET FORTH HEREIN AND IN THE TRUST DEED TO THE TRANSFEREE.
- 80 -
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY WHOSE ASSETS INCLUDE
THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY REASON OF 29 C.F.R.
2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY
FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT PURCHASING THIS NOTE ON
BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING AND SUBSEQUENT
DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF ANY SUCH
OTHER EMPLOYEE BENEFIT PLAN, ARE NOT IN VIOLATION OF ANY SUCH SUBSTANTIALLY
SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE TRUST DEED. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS
CURRENT PRINCIPAL AMOUNT BY INQUIRY OF [HSBC BANK PLC] AS THE PRINCIPAL PAYING
AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE TRUST DEED OR ANY OTHER TRANSACTION DOCUMENT, ALL PAYMENTS OF PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUER IN RESPECT OF THE NOTES OR
UNDER ANY TRANSACTION DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF
PAYMENTS AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS
RECOVERED BY OR ON BEHALF OF, THE ISSUER IN RESPECT OF THE SECURITY (AS DEFINED
IN THE SECURITY TRUST DEED, DATED 23 MAY 2006, AMONG TURQUOISE FUNDING 1
LIMITED, TURQUOISE RECEIVABLES TRUSTEE LIMITED, LAW DEBENTURE TRUST COMPANY OF
NEW YORK, ▇▇▇▇▇▇ TRUST COMPANY LIMITED AND HSBC BANK PLC (THE "SECURITY TRUST
DEED")). IF THE PROCEEDS OF THE SECURITY (AS DEFINED IN THE SECURITY TRUST DEED)
ARE NOT SUFFICIENT FOR THE ISSUER TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER TRANSACTION DOCUMENTS, NO OTHER ASSETS OF THE ISSUER WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
TURQUOISE CARD BACKED SECURITIES PLC
(incorporated with limited liability under
the laws of England and Wales)
- 81 -
[(POUND)/EUR/U.S.$][AMOUNT]
CLASS [A/B/C] ASSET BACKED [FLOATING/FIXED] RATE NOTES DUE [o]
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Turquoise Card Backed Securities plc (the "ISSUER"). The
Notes are constituted by, are subject to, and have the benefit of the Note Trust
Deed and are the subject of the Agency Agreement and the other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
________________________________
of _____________________________
________________________________
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[(POUND)/EUR/U.S.$] [AMOUNT] _______________________________
(___________________________ [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Class [A/B/C] Notes.
The Issuer, for value received, promises to pay such principal sum to the Holder
on the dates and in the amounts specified in the Conditions or on such earlier
date or dates as the same may become payable in accordance with the Conditions,
and to pay interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
The statements set out in the legend above are an integral part of this
Individual Note Certificate and, by acceptance hereof, each Holder of this
Individual Note Certificate agrees to be subject to and bound by such legends.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
- 82 -
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
TURQUOISE CARD BACKED SECURITIES PLC
By: _______________________________
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
[HSBC BANK USA, NATIONAL ASSOCIATION]
as Registrar
without recourse, warranty or liability
By: _______________________________
[manual signature]
(duly authorised)
- 83 -
FORM OF TRANSFER
FOR VALUE RECEIVED _______________________________, being the registered holder
of this Individual Note Certificate, hereby transfers to _______________________
________________________________________________________________________________
of _____________________________________________________________________________
________________________________________________________________________________
____________________________________________________________ [(pound)/EUR/U.S.$]
_______________________ in principal amount of the [(pound)/EUR/U.S.$] [amount]
Class [A/B/C] Asset Backed [Floating/Fixed] Rate] Notes due [o] (the "NOTES") of
Turquoise Card Backed Securities plc (the "ISSUER") and irrevocably requests and
authorises [HSBC Bank USA, National Association], in its capacity as registrar
in relation to the Notes (or any successor to [HSBC Bank USA, National
Association], in its capacity as such) to effect the relevant transfer by means
of appropriate entries in the register kept by it.
We, as transferor of the Notes represented by this Individual Note Certificate,
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in the Base Prospectus relating to the Notes
dated [date] and in accordance with the terms of any legend on this Individual
Note Certificate and that we are transferring such Notes(1):
1. [ ] to a person whom we reasonably believe is purchasing for its own
account or accounts as to which it exercises sole investment
discretion; such person and each such account is a qualified
institutional buyer (as defined in Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES
ACT")); the purchaser is aware that the sale to it is being made
in reliance upon Rule 144A under the Securities Act and such
transaction meets the requirements of Rule 144A under the
Securities Act and is in accordance with any applicable
securities laws of any state of the United States or any other
jurisdiction; or
2. [ ] to the Issuer or any of affiliates; or
3. [ ] in accordance with Regulation S under the Securities Act, and,
accordingly, we hereby certify that:
(a) the offer of the Notes was not made to a person
in the United States;
[ ](2) (b) at the time the buy order was originated, the
buyer was outside the United States or we or any
person acting on our behalf reasonably believed
that the buyer was outside the United States; or
[ ] (c) the transaction was executed in, on or through
the facilities of a designated offshore
securities market and neither we nor any
(1) Tick one of the following boxes 1,2,3 or 4.
(2) Tick box for one of alternative sub-paragraphs (b) as appropriate.
- 84 -
person acting on our behalf know that the
transaction was prearranged with a buyer in the
United States;
(d) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b)
or 904(b) of Regulation S, as applicable;
(e) the transaction is not part of a plan or scheme
to evade the registration requirements of the
Securities Act; and
(f) with regard to transfers occurring within the
period prior to and including the fortieth day
after the issue date of the Notes, the Notes to
which this form of transfer relates shall be
held through either Euroclear or Clearstream; or
4. [ ] pursuant to an exemption from registration provided by Rule 144A
under the Securities Act, if available.
If none of the foregoing boxes is ticked, the Registrar shall not be obliged to
register the transfer of the Notes.
Dated: _______________________________
By: _______________________________
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of
transfer is signed must correspond with the name of the
registered holder as it appears on the face of this Individual
Note Certificate.
(b) A representative of such registered holder should state the
capacity in which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by
the registered holder or be certified by a recognised bank,
notary public or in such other manner as the Registrar may
require.
(d) Any transfer of Notes shall be in an amount equal to [currency]
[amount] or any integral multiple of [currency] [amount] in
excess thereof.
- 85 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 of the Note Trust Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR AND PAYING AGENT
[HSBC BANK USA, NATIONAL ASSOCIATION]
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PAYING AGENT AND TRANSFER AGENT
[o]
[o]
- 86 -
PART B
FORM OF REGULATION S INDIVIDUAL NOTE CERTIFICATE
Serial Number: ____________
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES
LAWS IN THE UNITED STATES OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION AND
NEITHER THE ISSUER NOR THE SECURITISED PORTFOLIO HAS BEEN REGISTERED UNDER THE
UNITED STATES INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"). THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS NOTE, REPRESENTS
THAT IT HAS OBTAINED THIS NOTE IN A TRANSACTION IN COMPLIANCE WITH THE
SECURITIES ACT AND ALL OTHER APPLICABLE LAWS OF THE UNITED STATES OR ANY OTHER
JURISDICTION, AND THE RESTRICTIONS ON SALE AND TRANSFER SET FORTH IN THE TRUST
DEED (THE "TRUST DEED"), DATED 23 MAY, 2006, BETWEEN THE ISSUER AND LAW
DEBENTURE TRUST COMPANY OF NEW YORK (THE "NOTE TRUSTEE"). THE HOLDER HEREOF, BY
ITS ACCEPTANCE OF THIS NOTE, FURTHER REPRESENTS, ACKNOWLEDGES AND AGREES THAT IT
WILL NOT REOFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE (OR ANY
INTEREST HEREIN) EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT AND ALL OTHER
APPLICABLE LAWS OF ANY JURISDICTION AND IN ACCORDANCE WITH THE RESTRICTIONS,
CERTIFICATIONS AND OTHER REQUIREMENTS SPECIFIED IN THE TRUST DEED (I) TO A
TRANSFEREE THAT IS A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT OR (II) TO A TRANSFEREE THAT IS NOT A
U.S. PERSON (AS DEFINED IN REGULATION S OF THE SECURITIES ACT) AND THAT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 903 OR
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT AND, IN THE CASE OF CLAUSES
(I) AND (II), IN A PRINCIPAL AMOUNT WITH RESPECT TO EACH CLASS OF NOTES OF NOT
LESS THAN (EURO)50,000 (OR THE EQUIVALENT THEREOF IN THE SPECIFIED CURRENCY) FOR
THE PURCHASER AND FOR EACH ACCOUNT FOR WHICH IT IS ACTING. EACH PURCHASER OR
TRANSFEREE OF THIS NOTE WILL BE DEEMED TO HAVE MADE THE REPRESENTATIONS AND
AGREEMENTS SET FORTH IN THE TRUST DEED.
EACH TRANSFEROR OF THIS NOTE AGREES TO PROVIDE NOTICE OF THE TRANSFER
RESTRICTIONS SET FORTH HEREIN AND IN THE TRUST DEED TO THE TRANSFEREE.
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE
- 87 -
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A "PLAN"
WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), ANY PERSON OR ENTITY WHOSE ASSETS INCLUDE THE ASSETS OF
ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY REASON OF 29 C.F.R. 2510.3-101 OR
OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY FEDERAL, STATE,
LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE, AND IS NOT PURCHASING THIS NOTE ON BEHALF OF ANY SUCH
PERSON, OR (B) THE PURCHASE, HOLDING AND SUBSEQUENT DISPOSITION OF THIS NOTE
WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR
SECTION 4975 OF THE CODE (OR, IN THE CASE OF ANY SUCH OTHER EMPLOYEE BENEFIT
PLAN, ARE NOT IN VIOLATION OF ANY SUCH SUBSTANTIALLY SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE TRUST DEED. ACCORDINGLY,
THE OUTSTANDING PRINCIPAL OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ON THE FACE HEREOF. ANY PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS
CURRENT PRINCIPAL AMOUNT BY INQUIRY OF [HSBC BANK PLC] AS THE PRINCIPAL PAYING
AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE TRUST DEED OR ANY OTHER TRANSACTION DOCUMENT, ALL PAYMENTS OF PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUER IN RESPECT OF THE NOTES OR
UNDER ANY TRANSACTION DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF
PAYMENTS AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS
RECOVERED BY OR ON BEHALF OF, THE ISSUER IN RESPECT OF THE SECURITY (AS DEFINED
IN THE SECURITY TRUST DEED, DATED 23 MAY 2006, AMONG TURQUOISE FUNDING 1
LIMITED, TURQUOISE RECEIVABLES TRUSTEE LIMITED, LAW DEBENTURE TRUST COMPANY OF
NEW YORK, ▇▇▇▇▇▇ TRUST COMPANY LIMITED AND HSBC BANK PLC (THE "SECURITY TRUST
DEED")). IF THE PROCEEDS OF THE SECURITY (AS DEFINED IN THE SECURITY TRUST DEED)
ARE NOT SUFFICIENT FOR THE ISSUER TO MEET ITS OBLIGATIONS IN RESPECT OF THE
NOTES AND OTHER TRANSACTION DOCUMENTS, NO OTHER ASSETS OF THE ISSUER WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
TURQUOISE CARD BACKED SECURITIES PLC
(incorporated with limited liability under
the laws of England and Wales)
[(POUND)/EUR/U.S.$][AMOUNT]
CLASS [A/B/C] ASSET BACKED [FLOATING/FIXED] RATE NOTES DUE [o]
- 88 -
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Turquoise Card Backed Securities plc (the "ISSUER"). The
Notes are constituted by, are subject to, and have the benefit of the Note Trust
Deed and are the subject of the Agency Agreement and other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
__________________________
of _______________________
__________________________
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "HOLDER") of:
[(POUND)/EUR/U.S.$][AMOUNT]___________________________
(_______________________________ [CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Notes.
The Issuer, for value received, promises to pay such principal sum to the Holder
on the dates and in the amounts specified in the Conditions or on such earlier
date or dates as the same may become payable in accordance with the Conditions,
and to pay interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
TURQUOISE CARD BACKED SECURITIES PLC
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By: _______________________________
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
[HSBC BANK PLC]
as Registrar
without recourse, warranty or liability
By: _______________________________
[manual signature]
(duly authorised)
- 90 -
FORM OF TRANSFER
FOR VALUE RECEIVED __________________________________________, being the
registered holder of this Individual Note Certificate, hereby transfers to _____
________________________________________________________________________________
of _____________________________________________________________________________
________________________________________________________________________________
______________________ [currency] ______________________________ in principal
amount of the [(pound)/EUR/U.S.$] [amount] Class [A/B/C] Asset Backed
[Floating/Fixed] Rate Notes due [o] (the "NOTES") of Turquoise Card Backed
Securities plc (the "ISSUER") and irrevocably requests and authorises [HSBC Bank
plc], in its capacity as registrar in relation to the Notes (or any successor to
[HSBC Bank plc], in its capacity as such) to effect the relevant transfer by
means of appropriate entries in the register kept by it.
We, as transferor of the Notes represented by this Individual Note Certificate,
hereby certify that such Notes are being transferred in accordance with the
transfer restrictions set forth in the Base Prospectus relating to the Notes
dated [date] and in accordance with the terms of any legend on this Individual
Note Certificate and that we are transferring such Notes(3):
1. [ ] to a person whom we reasonably believe is purchasing for its own
account or accounts as to which it exercises sole investment
discretion; such person and each such account is a qualified
institutional buyer (as defined in Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES
ACT")); the purchaser is aware that the sale to it is being made
in reliance upon Rule 144A under the Securities Act and such
transaction meets the requirements of Rule 144A under the
Securities Act and is in accordance with any applicable
securities laws of any state of the United States or any other
jurisdiction; or
2. [ ] to the Issuer or any of affiliates; or
3. [ ] in accordance with Regulation S under the Securities Act, and,
accordingly, we hereby certify that:
(a) the offer of the Notes was not made to a person
in the United States;
[ ](4) (b) at the time the buy order was originated, the
buyer was outside the United States or we or any
person acting on our behalf reasonably believed
that the buyer was outside the United States; or
(c) the transaction was executed in, on or through
the facilities of a designated offshore
securities market and neither we nor any person
acting on our behalf know that the transaction
was
(3) Tick one of the following boxes 1,2,3 or 4.
(4) Tick box for one of alternative sub-paragraphs (b) as appropriate.
- 91 -
prearranged with a buyer in the United States;
(d) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b)
or 904(b) of Regulation S, as applicable;
(e) the transaction is not part of a plan or scheme
to evade the registration requirements of the
Securities Act; and
(f) with regard to transfers occurring within the
period prior to and including the fortieth day
after the issue date of the Notes, the Notes to
which this form of transfer relates shall be
held through either Euroclear or Clearstream; or
4. [ ] pursuant to an exemption from registration provided by Rule 144A
under the Securities Act, if available.
If none of the foregoing boxes is ticked, the Registrar shall not be obliged to
register the transfer of the Notes.
Dated: _______________________________
By: _______________________________
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of
transfer is signed must correspond with the name of the
registered holder as it appears on the face of this Individual
Note Certificate.
(b) A representative of such registered holder should state the
capacity in which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by
the registered holder or be certified by a recognised bank,
notary public or in such other manner as the Registrar may
require.
(d) Any transfer of Notes shall be in an amount equal to [currency]
[amount] or any integral multiple of [currency] [amount] in
excess thereof.
- 92 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 of the Note Trust Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR AND PAYING AGENT
[HSBC BANK PLC]
[8 Canada Square, London, ▇▇▇ ▇▇▇]
PAYING AGENT AND TRANSFER AGENT
[o]
[o]
- 93 -
PART C
FORM OF SEC-REGISTERED INDIVIDUAL NOTE CERTIFICATE
Serial Number: ____________
EACH ORIGINAL PURCHASER AND EACH TRANSFEREE OF THIS NOTE OR OF AN INTEREST
HEREIN IS DEEMED TO REPRESENT, WARRANT AND AGREE THAT EITHER (A) THE HOLDER IS
NOT, AND FOR SO LONG AS IT HOLDS THIS NOTE WILL NOT BE, AN "EMPLOYEE BENEFIT
PLAN" SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), A "PLAN" WITHIN THE MEANING OF SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), ANY PERSON OR ENTITY WHOSE ASSETS INCLUDE
THE ASSETS OF ANY SUCH "EMPLOYEE BENEFIT PLAN" OR "PLAN" BY REASON OF 29 C.F.R.
2510.3-101 OR OTHERWISE, OR ANY OTHER EMPLOYEE BENEFIT PLAN SUBJECT TO ANY
FEDERAL, STATE, LOCAL OR FOREIGN LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE, AND IS NOT PURCHASING THIS NOTE ON
BEHALF OF ANY SUCH PERSON, OR (B) THE PURCHASE, HOLDING AND SUBSEQUENT
DISPOSITION OF THIS NOTE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF ANY SUCH
OTHER EMPLOYEE BENEFIT PLAN, ARE NOT IN VIOLATION OF ANY SUCH SUBSTANTIALLY
SIMILAR LAW).
PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH IN THE TRUST DEED (THE "TRUST
DEED"), DATED 23 MAY 2006, BETWEEN THE ISSUER AND LAW DEBENTURE TRUST COMPANY OF
NEW YORK (THE "NOTE TRUST DEED"). ACCORDINGLY, THE OUTSTANDING PRINCIPAL OF THIS
NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. ANY
PERSON ACQUIRING THIS NOTE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF HSBC BANK PLC AS THE PRINCIPAL PAYING AGENT.
THE HOLDER OF THIS NOTE ACKNOWLEDGES THAT NOTWITHSTANDING ANY OTHER PROVISION OF
THE TRUST DEED OR ANY OTHER TRANSACTION DOCUMENT, ALL PAYMENTS OF PRINCIPAL,
INTEREST OR ANY OTHER AMOUNT TO BE MADE BY THE ISSUER IN RESPECT OF THE NOTES OR
UNDER ANY TRANSACTION DOCUMENT WILL BE PAYABLE PURSUANT TO THE PRIORITY OF
PAYMENTS AND ONLY FROM, AND TO THE EXTENT OF, THE SUMS PAID TO, OR NET PROCEEDS
RECOVERED BY OR ON BEHALF OF, THE ISSUER IN RESPECT OF THE SECURITY (AS DEFINED
IN THE SECURITY TRUST DEED, DATED 23 MAY 2006, AMONG TURQUOISE FUNDING 1
LIMITED, TURQUOISE RECEIVABLES TRUSTEE LIMITED, LAW DEBENTURE TRUST COMPANY OF
NEW YORK, ▇▇▇▇▇▇ TRUST COMPANY LIMITED AND HSBC BANK PLC (THE "SECURITY TRUST
DEED")). IF THE PROCEEDS OF THE SECURITY (AS DEFINED IN THE SECURITY TRUST DEED)
ARE NOT SUFFICIENT FOR THE ISSUER TO MEET ITS OBLIGATIONS IN RESPECT OF
- 94 -
THE NOTES AND OTHER TRANSACTION DOCUMENTS, NO OTHER ASSETS OF THE ISSUER WILL BE
AVAILABLE TO MEET SUCH INSUFFICIENCY.
TURQUOISE CARD BACKED SECURITIES PLC
(incorporated with limited liability under
the laws of England and Wales)
[(POUND)/EUR/U.S.$][AMOUNT]
CLASS [A/B/C] ASSET BACKED [FLOATING/FIXED] RATE NOTES DUE [o]
This Individual Note Certificate is issued in respect of the above captioned
Notes (the "NOTES") of Turquoise Card Backed Securities plc (the "ISSUER"). The
Notes are constituted by, are subject to, and have the benefit of the Note Trust
Deed and are the subject of the Agency Agreement and the other Documents.
Any reference herein to the "CONDITIONS" is to the terms and conditions of the
Notes attached hereto and any reference to a numbered "CONDITION" is to the
correspondingly numbered provision thereof.
In this Individual Note Certificate, unless otherwise defined herein or the
context requires otherwise, words and expressions have the meanings and
constructions ascribed to them in the Conditions.
This is to certify that:
___________________________
of_________________________
___________________________
is the person registered in the Register maintained by the Registrar in relation
to the Notes as the duly registered holder or, if more than one person is so
registered, the first-named of such persons (the "Holder") of:
[(pound)/EUR/U.S.$] [amount]____________________________________
(________________________________[CURRENCY AND AMOUNT IN WORDS])
in aggregate principal amount of the Class [A/B/C] Notes.
The Issuer, for value received, promises to pay such principal sum to the Holder
on the dates and in the amounts specified in the Conditions or on such earlier
date or dates as the same may become payable in accordance with the Conditions,
and to pay interest on the unpaid balance of such principal sum in arrear on the
dates and at the rate specified in the Conditions, together with any additional
amounts payable in accordance with the Conditions, all subject to and in
accordance with the Conditions.
- 95 -
The statements set out in the legend above are an integral part of this
Individual Note Certificate and, by acceptance hereof, each Holder of this
Individual Note Certificate agrees to be subject to and bound by such legends.
This Individual Note Certificate is evidence of entitlement only and is not a
document of title. Entitlements are determined by the Register and only the
Holder is entitled to payment in respect of this Individual Note Certificate.
This Individual Note Certificate shall not be valid for any purpose until it has
been authenticated for and on behalf of the Registrar.
AS WITNESS the manual or facsimile signature of a duly authorised person on
behalf of the Issuer.
TURQUOISE CARD BACKED SECURITIES PLC
By: _______________________________
[manual or facsimile signature]
(duly authorised)
ISSUED as of [o]
AUTHENTICATED for and on behalf of
[HSBC BANK PLC OR HSBC BANK USA, NATIONAL ASSOCIATION, AS APPLICABLE]
as Registrar
without recourse, warranty or liability
By: _______________________________
[manual signature]
(duly authorised)
- 96 -
FORM OF TRANSFER
FOR VALUE RECEIVED __________________________________, being the registered
holder of this Individual Note Certificate, hereby transfers to ________________
________________________________________________________________________________
of______________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________ [(pound)/EUR/U.S.$] ___________________________ in principal
amount of the [(pound)/EUR/U.S.$] [amount] Class [A/B/C] Asset Backed
[Floating/Fixed] Rate] Notes due [o] (the "Notes") of Turquoise Card Backed
Securities plc (the "Issuer") and irrevocably requests and authorises [HSBC Bank
plc or HSBC Bank USA, National Association, as applicable], in its capacity as
registrar in relation to the Notes (or any successor to [HSBC Bank plc or HSBC
Bank USA, National Association, as applicable], in its capacity as such) to
effect the relevant transfer by means of appropriate entries in the register
kept by it.
Dated: _______________________________
By: _______________________________
(duly authorised)
NOTES
(a) The name of the person by or on whose behalf this form of
transfer is signed must correspond with the name of the
registered holder as it appears on the face of this Individual
Note Certificate.
(b) A representative of such registered holder should state the
capacity in which he signs, e.g. executor.
(c) The signature of the person effecting a transfer shall conform
to any list of duly authorised specimen signatures supplied by
the registered holder or be certified by a recognised bank,
notary public or in such other manner as the Registrar may
require.
(d) Any transfer of Notes shall be in an amount equal to [currency]
[amount] or any integral multiple of [currency] [amount] in
excess thereof.
- 97 -
[Attached to each Individual Note Certificate:]
TERMS AND CONDITIONS
[As set out in Schedule 1 of the Note Trust Deed]
[At the foot of the Terms and Conditions:]
REGISTRAR AND PAYING AGENT
[HSBC BANK PLC OR HSBC BANK USA, NATIONAL ASSOCIATION, AS APPLICABLE]
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
or
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
PAYING AGENT AND TRANSFER AGENT
[o]
[o]
- 98 -
SCHEDULE 4
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. DEFINITIONS
In this Note Trust Deed and the Conditions, the following expressions have the
following meanings:
1.1 In relation to Meetings:
"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 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 such 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 Notes (each a
"RELEVANT NOTE") or a duly authorised person on its behalf has
instructed such Registrar that the votes attributable to each
Relevant Note 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;
"FORM OF PROXY" means, in relation to any Meeting, a document in the English
language available from a Registrar signed by a Noteholder or, in the case of a
corporation, executed under its seal or signed on its behalf by a duly
authorised officer and delivered to the relevant 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 Notes held by such Noteholder;
"PROXY", in the case of Notes means, in relation to any Meeting, a person
appointed to vote under a Block Voting Instruction or a Form of Proxy other
than:
- 99 -
(a) any such person whose appointment has been revoked and in
relation to whom the relevant 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, two or more
persons holding or representing a clear majority of the
aggregate Principal Amount Outstanding of the
outstanding Notes of the relevant Class, Sub-Class or
Series; and
(c) for voting on any Extraordinary Resolution relating to a
Basic Terms Modification, two or more persons holding or
representing in aggregate not less than 75 per cent. of
the aggregate Principal Amount Outstanding of the
outstanding Notes of the relevant Class, Sub-Class or
Series;
PROVIDED THAT, so long as at least the Relevant Fraction of the aggregate
principal amount of the outstanding Notes is represented by the Global Note
Certificate or a single Individual Note Certificate, a Voter appointed in
relation thereto or being the holder of the Notes represented thereby shall be
deemed to be two Voters for the purposes set out in this definition;
PROVIDED FURTHER 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 Basic Terms Modification, two or more
persons whatever the Principal Amount Outstanding of the
outstanding Notes of the relevant Class, Sub-Class or Series so
held or represented by such persons; and
(ii) for voting on any Extraordinary Resolution relating to a Basic
Terms Modification, two or more persons holding or representing
in the aggregate not less than 331/3 per cent. of the aggregate
Principal Amount Outstanding of the outstanding Notes of the
relevant Class, Sub-Class or Series;
"VOTER" means, in relation to any Meeting, (a) a Proxy or (b) (subject to
paragraph 5 (Record Date) below) a Noteholder; provided, however, that (subject
to paragraph 5 (Record Date) below) any 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 relevant Registrar
notified in writing of such revocation at least 48 hours before the time fixed
for such Meeting;
- 100 -
"WRITTEN RESOLUTION" means a resolution in writing signed by or on behalf of all
holders of 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 Notes;
"24 HOURS" means a period of 24 hours including all or part of a day
(disregarding for this purpose the day upon which such Meeting is to be held)
upon which banks are open for business in both the place where the relevant
Meeting is to be held and in each of the places where the Paying Agents have
their Specified Offices 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 Note may require the relevant Registrar to issue a Block
Voting Instruction by arranging (to the satisfaction of such Registrar)
for such 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 Note may require the relevant Registrar to issue a Block
Voting Instruction by delivering to such Registrar written instructions
not later than 48 hours before the time fixed for the relevant Meeting.
Any holder of a Note may obtain an uncompleted and unexecuted Form of
Proxy from the relevant Registrar. A Block Voting Instruction and a Form
of Proxy cannot be outstanding simultaneously in respect of the same
Note.
3. REFERENCES TO BLOCKING/RELEASE OF NOTES
Where Notes are represented by a Global Note Certificate are within a
clearing system, references to the blocking, or release, of Notes shall
be construed in accordance with the usual practices (including blocking
the relevant account) of such clearing system.
4. RECORD DATE
The 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 Note is registered in the relevant Register on
the record date at the close of business in the city in which the
Registrar that is maintaining such Register has its Specified Office
shall be deemed to be the holder of such Note for the purposes of such
Meeting and notwithstanding any subsequent transfer of such Note or
entries in such Register.
5. CONVENING OF MEETING
The Issuer or the Note Trustee may convene a Meeting at any time, and
the Note Trustee shall be obliged to do so subject to its being
indemnified and/or secured to its satisfaction upon the request in
writing of Noteholders holding not less than one tenth of the aggregate
Principal Amount Outstanding of the outstanding Notes. Every Meeting
shall be held on a date, and at a time and place, approved by the Note
Trustee.
- 101 -
6. NOTICE
6.1 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
Noteholders, (with a copy to the Issuer where the Meeting is convened by
the Note Trustee or, where the Meeting is convened by the Issuer, the
Note Trustee); and
6.2 The notice shall set out the full text of any resolutions to be proposed
unless the Note Trustee agrees that the notice shall instead specify the
nature of the resolutions without including the full text and shall
state that 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 Noteholder may appoint a Proxy
either under a Block Voting Instruction by delivering written
instructions to the relevant Registrar or by executing and delivering a
Form of Proxy to the Specified Office of the such 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 Noteholder) nominated in
writing by the Note 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
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
The quorum at any Meeting shall be at least two Voters representing or
holding not less than the Relevant Fraction of the aggregate Principal
Amount Outstanding of the outstanding Notes; provided, however, that, so
long as at least the Relevant Fraction of the aggregate Principal Amount
Outstanding of the outstanding Notes is represented by the Global Note
Certificate or a single Individual Note Certificate, a Voter appointed
in relation thereto or being the holder of the Notes represented thereby
shall be deemed to be two Voters for the purpose of forming a quorum.
9. ADJOURNMENT FOR WANT OF QUORUM
If within 15 minutes after the time fixed for any Meeting a quorum is
not present, then:
9.1.1 in the case of a Meeting requested by Noteholders, it shall be
dissolved; and
9.1.2 in the case of any other Meeting (unless the Issuer and the Note
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 Note Trustee); provided, however, that:
(a) the Meeting shall be dissolved if the Issuer and
the Note Trustee together so decide; and
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(b) 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 7 (Notice) shall apply to any Meeting which is to be resumed
after adjournment for want of a quorum save that:
11.1.1 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
11.1.2 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:
12.1.1 Voters;
12.1.2 representatives of the Issuer and the Note Trustee;
12.1.3 the financial advisers of the Issuer and the Note Trustee;
12.1.4 the legal counsel to the Issuer and the Note Trustee and such
advisers;
12.1.5 any other person approved by the Meeting or the Note Trustee;
and
12.1.6 the relevant Registrars.
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. Where there is only one Voter, this paragraph shall not
apply and the resolution will immediately be decided by means of a poll.
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14. POLL
A demand for a poll shall be valid if it is made by the Chairman, the
Issuer, the Note Trustee or one or more Voters representing or holding
not less than one half of the aggregate Principal Amount Outstanding of
the outstanding 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:
15.1.1 on a show of hands, one vote; and
15.1.2 on a poll, one vote in respect of each [Euro]/[(pound)]/[US$]1
or such other amount as the Note Trustee may in its absolute
discretion stipulate (or, in the case of Meetings of holders of
Notes denominated in another currency, such amount in such other
currency as the Note Trustee in its absolute discretion may
stipulate) in nominal amount of the outstanding Note(s)
represented or held by him.
Unless the terms of any Block Voting Instruction or Form of Proxy 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.
In the case of any Meeting of holders of more than one Series or Class
or Sub-Class of Notes where not all such Series or Class or Sub-Class
are in the same currency, the principal amount of such Notes shall for
all purposes in this Schedule (whether inter alia in respect of the
Meeting or any poll resulting therefrom), be the equivalent in U.S.
Dollars translated at the rate specified in the relevant Prospectus
Supplement/ Final Terms relating to such Notes. In such circumstances,
on any poll each person present shall have one vote for each Unit of
Notes (converted as above) which he holds.
In this paragraph, a "UNIT" means the lowest denomination of the Notes
as stated in the applicable Note Trust Deed Supplement or in the case of
a Meeting of Noteholders of more than one Series, shall be the lowest
common denominator of the lowest denomination of the Notes.
16. VALIDITY OF VOTES BY PROXIES
16.1 Any vote by a Proxy in accordance with the 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 neither the Issuer, the Note Trustee
nor the Chairman has been notified in writing of such amendment or
revocation by the time which is 24 hours before the time fixed for the
relevant Meeting; or
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16.2 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, however, that no such appointment of a Proxy in
relation to a Meeting originally convened which has been adjourned for
want of a quorum shall remain in force in relation to such Meeting when
it is resumed. Any person appointed to vote at such a Meeting must be
re-appointed under a Block Voting Instruction or Form of Proxy to vote
at the Meeting when it is resumed.
17. POWERS
A Meeting shall have power (exercisable only by Extraordinary
Resolution), without prejudice to any other powers conferred on it or
any other person:
17.1.1 to approve any Basic Terms Modification;
17.1.2 to approve any proposal by the Issuer for any modification,
abrogation, variation or compromise of any provisions of this
Note Trust Deed or the Conditions or any arrangement in respect
of the obligations of the Issuer under or in respect of the
Notes;
17.1.3 (Other than as permitted under Clause 10.3 (Substitution) of
this Note Trust Deed) to approve the substitution of any person
for the Issuer (or any previous substitute) as principal obligor
under the Notes;
17.1.4 (Other than as permitted under Clause 10.1 (Waiver) of this Note
Trust Deed) to waive any breach or authorise any proposed breach
by the Issuer of its obligations under or in respect of this
Note Trust Deed or the Notes or any act or omission which might
otherwise constitute an Event of Default under the Notes;
17.1.5 to remove any Note Trustee;
17.1.6 to approve the appointment of a new Note Trustee;
17.1.7 to authorise the Note Trustee (subject to its being indemnified
and/or secured to its satisfaction) or any other person to
execute all documents and do all things necessary to give effect
to any Extraordinary Resolution;
17.1.8 to discharge or exonerate the Note Trustee from any liability in
respect of any act or omission for which it may become
responsible under the Security Documents;
17.1.9 to give any other authorisation or approval which under the
Security Documents is required to be given by Extraordinary
Resolution; and
17.1.10 to appoint any persons as a committee to represent the interests
of the Noteholders and to confer upon such committee any powers
which the Noteholders could themselves exercise by Extraordinary
Resolution.
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18. EXTRAORDINARY RESOLUTION BINDS ALL HOLDERS
An Extraordinary Resolution shall be binding, subject as provided by
Clause 22 (Several Series) and Clause 23 (Several Classes) below upon
all Noteholders and each of the 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 Noteholders and the
relevant Registrars with a copy to the Issuer, and the Note 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 Note Trust Deed, the
Note Trustee may without the consent of the Issuer or the Noteholders
prescribe such further regulations regarding the holding of Meetings of
Noteholders and attendance and voting at them as the Note Trustee may in
its sole discretion determine.
22. SEVERAL SERIES
The following provisions shall apply where outstanding Notes belong to
more than one Series:
22.1.1 Business which in the opinion of the Note Trustee affects the
Notes of only one Series shall be transacted at a separate
Meeting of the holders of the Notes of that Series.
22.1.2 Business which in the opinion of the Note Trustee affects the
Notes of more than one Series but does not give rise to an
actual or potential conflict of interest between the holder of
Notes or one such Series and the holders of Notes of any other
such Series shall be transacted either at separate Meetings of
the holders of the Notes of each such Series or at a single
Meeting of the holders of the Notes of all such Series, as the
Note Trustee shall in its absolute discretion determine.
22.1.3 Business which in the opinion of the Note Trustee affects the
Notes of more than one Series and gives rise to an actual or
potential conflict of interest between the holders of Notes of
one such Series and the holders of Notes of any other such
Series shall be transacted at separate Meetings of the holders
of the Notes of each such Series.
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22.1.4 The preceding paragraphs of this Schedule shall be applied as if
references to the Notes and Noteholders were to the Notes of the
relevant Series and to the holders of such Notes.
22.1.5 For the avoidance of doubt, any instruction to be given by the
Noteholders to the Note Trustee in respect of enforcing the
Security under Clause 11 (Enforcement) shall be given at a
single meeting of holders of the Notes of all Series.
22.1.6 In this paragraph, "BUSINESS" includes (without limitation) the
passing or rejection of any resolution.
23. SEVERAL CLASSES OR SUB-CLASSES
23.1 Without prejudice to Clause 22 (Several Series) The following provisions
shall apply where outstanding Notes belong to more than one Class or
Sub-Class:
23.1.1 Business which in the opinion of the Trustee affects the Notes
of only one Class or Sub-Class shall be transacted at a separate
Meeting of the holders of the Notes of that Class or Sub-Class;
23.1.2 Business which in the opinion of the Trustee affects the Notes
of more than one Class or Sub-Class but does not give rise to an
actual or potential conflict of interest between the holder of
Notes or one such Class or Sub-Class and the holders of Notes of
any other such Class or Sub-Class shall be transacted either at
separate Meetings of the holders of the Notes of each such Class
or Sub-Class or at a single Meeting of the holders of the Notes
of all such Classes or Sub-Classes, as the Trustee shall in its
absolute discretion determine.
23.1.3 Business which in the opinion of the Trustee affects the Notes
of more than one Class or Sub-Class and gives rise to an actual
or potential conflict of interest between the holders of Notes
of one such Class or Sub-Class and the holders of Notes of any
other such Class or Sub-Class shall be transacted at separate
Meetings of the holders of the Notes of each such Class or
Sub-Class.
23.1.4 The preceding paragraphs of this Schedule shall be applied as if
references to the Notes and Noteholders were to the Notes of the
relevant Class or Sub-Class and to the holders of such Notes.
23.1.5 In this paragraph, "BUSINESS" includes (without limitation) the
passing or rejection of any resolution.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
PART A
FORM OF REGULATION S TRANSFER CERTIFICATE
TURQUOISE CARD BACKED SECURITIES PLC
c/o Wilmington Trust Services SP (London) Limited,
Tower 42 (Level 11), International Financial Centre,
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
[HSBC BANK USA, NATIONAL ASSOCIATION]
[10 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇]
Reference is hereby made to the Note Trust Deed dated 23 May 2006 (the "NOTE
TRUST DEED") between Turquoise Card Backed Securities plc (the "ISSUER") and Law
Debenture Trust Company of New York (the "TRUSTEE"). Capitalised terms used but
not defined herein shall have the meanings given to them in the Note Trust Deed.
NOTE: INSERT [A] FOR TRANSFERS OF AN INTEREST IN A REGULATION S GLOBAL NOTE
CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF A REGULATION S
INDIVIDUAL NOTE CERTIFICATE DURING THE DISTRIBUTION COMPLIANCE PERIOD. INSERT
[B] FOR TRANSFERS OF A RULE 144A GLOBAL NOTE CERTIFICATE TO TRANSFEREES THAT
TAKE DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE
CERTIFICATE. INSERT [C] FOR TRANSFERS OF AN INTEREST IN A RULE 144A GLOBAL NOTE
CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF A REGULATION S
INDIVIDUAL NOTE CERTIFICATE. INSERT [D] FOR TRANSFERS OF A RULE 144A INDIVIDUAL
NOTE CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF A REGULATION S
INDIVIDUAL NOTE CERTIFICATE. INSERT [E] FOR TRANSFERS OF A RULE 144A INDIVIDUAL
NOTE CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF AN INTEREST IN
A REGULATION S GLOBAL NOTE CERTIFICATE. INSERT [F] FOR TRANSFERS OF A REGULATION
S INDIVIDUAL NOTE CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF A
REGULATION S INDIVIDUAL NOTE CERTIFICATE DURING THE DISTRIBUTION COMPLIANCE
PERIOD. INSERT [G] FOR TRANSFERS OF A REGULATION S INDIVIDUAL NOTE CERTIFICATE
TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF A REGULATION S GLOBAL NOTE
CERTIFICATE DURING THE DISTRIBUTION COMPLIANCE PERIOD. INSERT [H] FOR TRANSFERS
OF AN INTEREST IN A REGULATION S GLOBAL NOTE CERTIFICATE TO TRANSFEREES THAT
TAKE DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE
CERTIFICATE.
- 108 -
[A] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Regulation S Global Note
Certificate in the name of [insert name of transferor] (the Transferor) through
[Euroclear] [Clearstream] (ISIN No. __________), which in turn holds through
[HSBC Bank plc] (the Common Depositary). The Transferor has requested a transfer
of such beneficial interest in a Regulation S Global Note Certificate for a
Regulation S Individual Note Certificate of the same [Class/Sub-Class]
registered in the name of [insert name of transferee] (the Transferee).
Delivered herewith is a Transfer Certificate completed by the Transferor.
[B] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Rule 144A Global Note Certificate
in the name of [insert name of transferor] (the Transferor) through DTC (CUSIP
No. __________), which in turn holds through Cede & Co. The Transferor has
requested a transfer of the beneficial interest in such Notes for a beneficial
interest in a Regulation S Global Note Certificate of the same [Class/Sub-Class]
to be held by [insert name of transferee] (the Transferee) through [Euroclear]
[Clearstream] (ISIN No. __________), which in turn holds through the Common
Depositary. Delivered herewith is a Transfer Certificate completed by the
Transferor.
[C] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Rule 144A Global Note Certificate
in the name of [insert name of transferor] (the Transferor) through DTC (CUSIP
No. __________), which in turn holds through Cede & Co. The Transferor has
requested a transfer of such Notes for a Regulation S Individual Note
Certificate of the same [Class/Sub-Class] registered in the name of [insert name
of transferee] (the Transferee). Delivered herewith is a Transfer Certificate
completed by the Transferor.
[D] This letter relates to __________ principal amount of Notes that are
represented by a Rule 144A Individual Note Certificate registered in the name of
[insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Notes for a Regulation S Individual Note Certificate registered
in the name of [insert name of transferee] (the Transferee). Delivered herewith
is a Transfer Certificate completed by the Transferor.
[E] This letter relates to __________ principal amount of Notes that are
represented by a Rule 144A Individual Note Certificate registered in the name of
[insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Notes for a beneficial interest in a Regulation S Global Note
Certificate of the same [Class/Sub-Class] to be held by [insert name of
transferee] (the Transferee) through [Euroclear][Clearstream] (ISIN No. ______),
which in turn holds through the Common Depository. Delivered herewith is a
Transfer Certificate completed by the Transferor.
[F] This letter relates to __________ principal amount of Notes that are
represented by a Regulation S Individual Note Certificate registered in the name
of [insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Notes for a Regulation S Individual Note Certificate registered
in the name of [insert name of transferee] (the Transferee). Delivered herewith
is a Transfer Certificate completed by the Transferor.
[G] This letter relates to __________ principal amount of Notes that are
represented by a Regulation S Individual Note Certificate registered in the name
of [insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Notes for a beneficial interest
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in a Regulation S Global Note Certificate of the same [Class/Sub-Class] to be
held by [insert name of transferee] (the Transferee) through
[Euroclear][Clearstream] (ISIN No. ______), which in turn holds through the
Common Depository. Delivered herewith is a Transfer Certificate completed by the
Transferor.
[H] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Regulation S Global Note
Certificate in the name of [insert name of transferor] (the Transferor) through
[Euroclear] [Clearstream] (ISIN No. __________), which in turn holds through the
Common Depositary. The Transferor has requested a transfer of such Notes for a
beneficial interest in a Regulation S Global Note Certificate of the same
[Class/Sub-Class] to be held by [insert name of transferee] (the Transferee)
through [Euroclear] [Clearstream] (ISIN No. __________), which in turn holds
through the Common Depositary. Delivered herewith is a Transfer Certificate
completed by the Transferor.
In connection with such request and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected in accordance with the
transfer restrictions set forth in the Note Trust Deed and the Notes and
pursuant to and in accordance with Regulation S under the Securities Act, and
accordingly the Transferor does hereby certify that:
(1) It has notified the Transferee that (i) the Notes have not been and will
not be registered under the Securities Act and the Issuer has not been
and will not be registered as an "investment company" under the
Investment Company Act; (ii) neither the Notes nor any beneficial
interest therein may be re-offered, resold, pledged or otherwise
transferred absent an exemption from the registration requirements of
the Securities Act and applicable U.S. state securities laws; (iii) the
transferee will be required to notify any subsequent transferee of the
Notes of such transfer restrictions and (iv) during the Distribution
Compliance Period, the interests in the Regulation S Global Note
Certificate may only be held through Euroclear or Clearstream.
(2) At the time the buy order was originated, the Transferee was outside the
United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States.
(3) If the Transferee is acquiring the Note prior to the expiration of the
Distribution Compliance Period, the Transferor reasonably believes that
the Transferee is a non-U.S. person (within the meaning of Regulation S
under the Securities Act) who is purchasing the Note in an offshore
transaction.
(4) No directed selling efforts have been made in contravention of the
requirements of Rule 903(b) or 904(b) of Regulation S, as applicable.
(5) The transaction is not part of a plan or scheme to evade either alone or
in conjunction with any other person the registration requirements of
the Securities Act or the Investment Company Act.
(6) The Note is not being sold, pledged or otherwise transferred in a
denomination of less than (euro)50,000 (or the equivalent in another
currency).
(7) This certificate and the statements contained herein are made for your
benefit.
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[INSERT NAME OF TRANSFEROR]
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
Dated _____________, ___
- 111 -
PART B
FORM OF SEC-REGISTERED TRANSFER CERTIFICATE
TURQUOISE CARD BACKED SECURITIES PLC
c/o Wilmington Trust Services SP (London) Limited,
Tower 42 (Level 11), International Financial Centre,
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
[HSBC Bank USA, National Association]
[[10 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇]
Reference is hereby made to the Note Trust Deed dated 23 May 2006 (the "NOTE
TRUST DEED") between Turquoise Card Backed Securities plc (the "ISSUER") and Law
Debenture Trust Company of New York (the "TRUSTEE"). Capitalised terms used but
not defined herein shall have the meanings given to them in the Note Trust Deed.
[NOTE: INSERT [A] FOR TRANSFERS OF AN INTEREST IN A REGULATION S GLOBAL NOTE
CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF AN INTEREST IN A
RULE 144A GLOBAL NOTE CERTIFICATE. INSERT [B] FOR TRANSFERS OF AN INTEREST IN A
REGULATION S GLOBAL NOTE CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE
FORM OF A RULE 144A INDIVIDUAL NOTE CERTIFICATE. INSERT [C] FOR TRANSFERS OF A
REGULATION S INDIVIDUAL NOTE CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN
THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE CERTIFICATE. INSERT [D] FOR
TRANSFERS OF A REGULATION S INDIVIDUAL NOTE CERTIFICATE TO TRANSFEREES THAT TAKE
DELIVERY IN THE FORM OF A RULE 144A INDIVIDUAL NOTE CERTIFICATE. INSERT [E] FOR
TRANSFERS OF AN INTEREST IN A RULE 144A GLOBAL NOTE CERTIFICATE TO TRANSFEREES
THAT TAKE DELIVERY IN THE FORM OF A RULE 144A INDIVIDUAL NOTE CERTIFICATE.
INSERT [F] FOR TRANSFERS OF AN INTEREST IN A RULE 144A INDIVIDUAL NOTE
CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF AN INTEREST IN A
RULE 144A GLOBAL NOTE CERTIFICATE. INSERT [G] FOR TRANSFERS OF A RULE 144A
INDIVIDUAL NOTE CERTIFICATE TO TRANSFEREES THAT TAKE DELIVERY IN THE FORM OF A
RULE 144A INDIVIDUAL NOTE CERTIFICATE.
[A] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Regulation S Global Note
Certificate in the name of [insert name of transferor] (the Transferor) through
[Euroclear] [Clearstream] (ISIN No. __________), which in turn holds through the
Common Depositary. The Transferor has requested a transfer of such beneficial
interest in a Regulation S Global Note Certificate for a beneficial interest in
a Rule 144A Global Note Certificate of the same [Class/Sub-Class] registered in
the name of [insert name of transferee] (the Transferee) through DTC (CUSIP No.
__________), which in turn holds through Cede & Co. Delivered herewith is a
Transfer Certificate completed by the Transferor.
- 112 -
[B] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Regulation S Global Note
Certificate in the name of [insert name of transferor] (the Transferor) through
[Euroclear] [Clearstream] (ISIN No. __________), which in turn holds through the
Common Depositary. The Transferor has requested a transfer of such beneficial
interest in a Regulation S Global Note Certificate for a Rule 144A Individual
Note Certificate of the same [Class/Sub-Class] registered in the name of [insert
name of transferee] (the Transferee). Delivered herewith is a Transfer
Certificate completed by the Transferor.
[C] This letter relates to ______________ principal amount of Notes that are
represented by a Regulation S Individual Note Certificate registered in the name
of [insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Regulation S Individual Note Certificate for a beneficial
interest in a Rule 144A Global Note Certificate of the same [Class/Sub-Class]
registered in the name of [insert name of transferee] (the Transferee) through
DTC (CUSIP No. __________), which in turn holds through Cede & Co. Delivered
herewith is a Transfer Certificate completed by the Transferor.
[D] This letter relates to ______________ principal amount of Notes that are
represented by a Regulation S Individual Note Certificate registered in the name
of [insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Regulation S Individual Note Certificate for a Rule 144A
Individual Note Certificate of the same [Class/Sub-Class] registered in the name
of [insert name of transferee] (the Transferee). Delivered herewith is a
Transfer Certificate completed by the Transferor.
[E] This letter relates to ______________ principal amount of Notes that are
held in the form of a beneficial interest in a Rule 144A Global Note Certificate
(CUSIP No. _______________) in the name of [insert name of transferor] (the
Transferor) through DTC which in turn holds through Cede & Co. The Transferor
has requested a transfer of such beneficial interest in a Rule 144A Global Note
Certificate for a Rule 144A Individual Note Certificate of the same Class
registered in the name of [insert name of transferee] (the Transferee).
Delivered herewith is a Transfer Certificate completed by the Transferor.
[F] This letter relates to ______________ principal amount of Notes that are
represented by a Rule 144A Individual Note Certificate registered in the name of
[insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such beneficial interest in a Rule 144A Individual Note Certificate
for a beneficial interest in a Rule 144A Global Note Certificate of the same
[Class/Sub-Class] registered in the name of [insert name of transferee] (the
Transferee) through DTC (CUSIP No. __________) which in turn holds through Cede
& Co. Delivered herewith is a Transfer Certificate completed by the Transferor.
[G] This letter relates to ______________ principal amount of Notes that are
represented by a Rule 144A Individual Note Certificate registered in the name of
[insert name of transferor] (the Transferor). The Transferor has requested a
transfer of such Rule 144A Individual Note Certificate for a Rule 144A
Individual Note Certificate of the same [Class/Sub-Class] registered in the name
of [insert name of transferee] (the Transferee). Delivered herewith is a
Transfer Certificate completed by the Transferor.
In connection with such request, and in respect of such Notes, the Transferor
does hereby certify that such transfer has been effected in accordance with the
transfer restrictions set forth in the
- 113 -
Note Trust Deed and the Notes and pursuant to and in accordance with Rule 144A
under the Securities Act and any applicable securities laws of any state of the
United States or any other jurisdiction, and accordingly the Transferor does
hereby certify that:
(1) It has notified the Transferee that (i) the Notes have not been and will
not be registered under the Securities Act and the Issuer has not been
and will not be registered as an "investment company" under the
Investment Company Act; (ii) neither the Notes nor any beneficial
interest therein may be re-offered, resold, pledged or otherwise
transferred absent an exemption from the registration requirements of
the Securities Act and applicable state securities laws; (iii) the
transferee will be required to notify any subsequent transferee of the
Notes of such transfer restrictions and (iv) this sale is being made in
reliance on an exemption from the registration provisions of Section 5
of the Securities Act provided by Rule 144A.
(2) It reasonably believes that the Transferee (i) is purchasing the Notes
for its own account and that (ii) such Transferee is a "qualified
institutional buyer" within the meaning of Rule 144A.
(3) The transaction is not part of a plan or scheme to evade either alone or
in conjunction with any other person the registration requirements of
the Securities Act or the Investment Company Act.
(4) The Note is not being sold, pledged or otherwise transferred in a
denomination of less than (euro)50,000 (or the equivalent in another
currency).
(5) This certificate and the statements contained herein are made for your
benefit.
[INSERT NAME OF TRANSFEROR]
By:__________________________
Name:
Title:
By:__________________________
Name:
Title:
Dated _____________, ___
- 114 -
EXECUTION CLAUSES
NOTE TRUSTEE
LAW DEBENTURE TRUST
COMPANY OF NEW YORK AS NOTE TRUSTEE
By ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title VICE PRESIDENT
EXECUTED AS A DEED )
For and on behalf of )
TURQUOISE CARD BACKED SECURITIES PLC )
By ▇▇▇▇ ▇▇▇▇▇▇
Director
By ▇▇▇▇ ▇▇▇▇▇
Director
- 115 -