Exhibit 4.4.1
ISSUER DEED OF CHARGE
[*] 2006
BETWEEN
PERMANENT MASTER ISSUER PLC
(THE ISSUER)
HALIFAX PLC
(THE SELLER)
THE BANK OF NEW YORK
(THE ISSUER SECURITY TRUSTEE)
THE BANK OF NEW YORK
(THE NOTE TRUSTEE)
CITIBANK, N.A.
(THE PRINCIPAL PAYING AGENT, THE AGENT BANK AND THE REGISTRAR)
CITIBANK, N.A.
(THE US PAYING AGENT)
[*]
(THE ISSUER SWAP PROVIDER)
HALIFAX PLC
(THE SERVICER)
HALIFAX PLC
(THE ISSUER CASH MANAGER)
BANK OF SCOTLAND
(THE ISSUER ACCOUNT BANK)
AND
STRUCTURED FINANCE MANAGEMENT LIMITED
(THE ISSUER CORPORATE SERVICES PROVIDER)
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
CONTENTS
CLAUSE PAGE
1. Interpretation.........................................................2
2. Security Trust.........................................................3
3. Creation of Issuer Security............................................3
4. Acknowledgements and undertakings......................................5
5. Restrictions on Exercise of Certain Rights.............................6
6. Payments out of the Issuer Accounts Prior to Acceleration..............7
7. Payments out of the Issuer Accounts Upon Acceleration..................9
8. enforcement by the issuer security trustee............................14
9. Enforcement of Issuer Security........................................15
10. Receiver..............................................................16
11. Powers of Receiver....................................................18
12. Modification, Authorisation, Waiver, and consent......................20
13. Additional Provisions Regarding the Issuer Security Trustee...........21
14. Issuer Power of Attorney..............................................22
15. Further Assurances....................................................22
16. Additional Provisions Relating to the Issuer Security.................23
17. Set-off...............................................................24
18. Release...............................................................24
19. Issuer Representations................................................25
20. Evidence of Indebtedness..............................................26
21. Rights Cumulative.....................................................26
22. Severability..........................................................27
23. Counterparts..........................................................27
24. Notices...............................................................27
25. Language..............................................................28
26. Law and Jurisdiction..................................................29
27. Contracts (Rights of Third Parties) Act 1999..........................29
SCHEDULE
1. Form of Notice of Charge..............................................30
2. Form of Consent to Charge.............................................31
Signatories..................................................................32
THIS DEED is dated [*] 2006
(1) PERMANENT MASTER ISSUER PLC, a company incorporated in England and Wales
with limited liability (registered number 5922774), and having its
registered office at ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the ISSUER);
(2) HALIFAX PLC, a public limited company incorporated in England and Wales
with limited liability (registered number 02367076), and having its
registered office at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
SELLER);
(3) THE BANK OF NEW YORK, a New York banking corporation acting through its
offices at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its
capacity as the ISSUER SECURITY TRUSTEE, which expression includes such
company and all other persons or companies for the time being acting as
security trustee or security trustees under this Deed);
(4) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in
its capacity as the NOTE TRUSTEE, which expression includes such company
and all other persons or companies for the time being acting as trustee
or trustees for the Noteholders under the Note Trust Deed);
(5) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in
its capacity as the PRINCIPAL PAYING AGENT);
(6) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in
its capacity as the REGISTRAR);
(7) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in
its capacity as the AGENT BANK);
(8) CITIBANK N.A., a national association acting through its offices at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (acting in its
capacity as the U.S. PAYING AGENT);
(9) [*], a public limited company incorporated in England and Wales with
limited liability (registered number 02367076), and acting through its
office at [*] (the ISSUER SWAP PROVIDER);
(10) HALIFAX PLC, a public limited company incorporated in England and Wales
with limited liability (registered number 02367076), and having its
registered office at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
SERVICER);
(11) HALIFAX PLC, a public limited company incorporated in England and Wales
with limited liability (registered number 02367076), and having its
registered office at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(12) BANK OF SCOTLAND, a company established by an Act of the Parliament of
Scotland in 1695, and acting through its offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇ (the ISSUER ACCOUNT BANK); and
(13) STRUCTURED FINANCE MANAGEMENT LIMITED, a company incorporated in England
and Wales, with limited liability (registered number 3853947), and
having its registered office at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(▇▇▇ ISSUER CORPORATE SERVICES PROVIDER).
BACKGROUND:
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(A) On or about the date of this Deed, the Issuer will issue the Series [*]
Notes and the Issuer and the other parties will enter into the
Transaction Documents in order to consummate the transactions described
in the Prospectus.
(B) The Issuer has agreed to provide the Issuer Security to secure the
Issuer Secured Liabilities.
(C) The Issuer Security Trustee has agreed to hold the benefit of the Issuer
Security on trust for the benefit of the Issuer Secured Creditors
subject to the terms and conditions of this Deed.
(D) It is intended that this document takes effect as a deed notwithstanding
the fact that a Party may only execute this document under hand.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 CONSTRUCTION
(a) Capitalised terms defined in the Master Definitions and Construction
Schedule have, unless expressly defined in this Deed, the same meaning
in this Deed.
(b) This Deed will be construed in accordance with the rules of construction
set out in the Master Definitions and Construction Schedule.
(c) If there is any conflict between the provisions of the Master
Definitions and Construction Schedule and the provisions of this Deed,
the provisions of this Deed will prevail.
(d) The term THIS DEED means this Deed and any deed executed in accordance
with, or expressed to be supplemental to, this Deed.
(e) Any covenant of the Issuer under this Deed (other than a payment
obligation) shall remain in force during the Issuer Security Period.
(f) The terms of the other Transactions Documents are incorporated in this
Deed to the extent required to give effect thereto and/or to ensure that
any purported disposition contained in this Deed is a valid disposition
in accordance with Section 2(1) of the Law of Property (Miscellaneous
Provisions) ▇▇▇ ▇▇▇▇.
(g) Unless the context otherwise requires, a reference to an Issuer Charged
Asset includes the proceeds of sale of that Issuer Charged Asset.
(h) The term FULL TITLE GUARANTEE will be construed in accordance with the
LP (MP) Act but so that the covenants implied by the LP (MP) Act in
respect of the Issuer Security do not include:
(i) the words "other than any charges, encumbrances or rights which
that person does not and could not reasonably be expected to
know about" in section 3(1)(b) of the LP (MP) Act; and
(ii) section 6(2) of the LP (MP) Act.
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2. SECURITY TRUST
2.1 DECLARATION OF TRUST
The Issuer Security Trustee holds all of the covenants, undertakings,
Security Interests and other rights and benefits made or given under
this Deed and the other Transaction Documents on trust for itself and
the other Issuer Secured Creditors upon and subject to the terms and
conditions of this Deed.
3. CREATION OF ISSUER SECURITY
3.1 GENERAL
(a) All the Issuer Security:
(i) is created in favour of the Issuer Security Trustee for itself
and as trustee on behalf of the other Issuer Secured Creditors;
(ii) is created over the present and future assets of the Issuer;
(iii) is security for the payment or discharge of the Issuer Secured
Liabilities; and
(iv) is made with full title guarantee.
(b) The term ALL OF ITS RIGHTS as used in this Clause includes, unless the
context requires otherwise:
(i) the benefit of all covenants, undertakings, representations,
warranties and indemnities;
(ii) all powers and remedies of enforcement and/or protection;
(iii) all rights to receive payment of all amounts assured or payable
(or to become payable), all rights to serve notices and/or to
make demands and all rights to take such steps as are required
to cause payment to become due and payable; and
(iv) all causes and rights of action in respect of any breach and all
rights to receive damages or obtain other relief in respect
thereof,
in each case, in respect of the relevant Issuer Charged Asset.
3.2 CONTRACTS
The Issuer assigns by way of first fixed security (or, to the extent not
assignable, charges by way of a first fixed charge) all of its rights in
respect of the Issuer Charged Documents.
3.3 ISSUER ACCOUNTS
The Issuer charges by way of a first fixed charge all of its rights in
respect of:
(a) any amount standing from time to time to the credit of the
Issuer Accounts;
(b) all interest paid or payable in relation to those amounts; and
(c) all debts represented by those amounts.
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3.4 AUTHORISED INVESTMENTS
The Issuer charges by way of a first fixed charge all of its rights in
respect of:
(a) the Authorised Investments permitted to be made pursuant to the
Cash Management Agreement made or purchased from time to time by
or on behalf of the Issuer (whether owned by it or held by any
nominee on its behalf) using moneys standing to the credit of
the Issuer Accounts; and
(b) all interest, moneys and proceeds paid or payable in relation to
those Authorised Investments.
3.5 MISCELLANEOUS
The Issuer charges by way of a first fixed charge all of its rights in
respect of:
(a) the benefit of all authorisations (statutory or otherwise) held
in connection with its use of any Issuer Charged Asset; and
(b) any compensation which may be payable to it in respect of those
authorisations.
3.6 FLOATING CHARGE
(a) The Issuer charges by way of a first floating charge all of its
undertaking and all of its property and assets (including, without
limitation, its uncalled capital) other than any property or assets at
any time otherwise effectively charged or assigned by way of fixed
charge or assignment under this Clause.
(b) Except as provided below, the Issuer Security Trustee may by notice to
the Issuer convert the floating charge created under this Clause into a
fixed charge as regards any of the Issuer's assets subject to the
floating charge specified in that notice, if:
(i) an Issuer Event of Default is outstanding;
(ii) the Issuer Security Trustee considers those assets or any part
thereof to be in danger of being seized or sold under any form
of distress, attachment, execution or other legal process or to
be otherwise in jeopardy; and/or
(iii) a circumstance occurs which the Issuer Security Trustee
considers to (or to be likely to) prejudice, imperil or threaten
the Issuer Security.
(c) Except as provided below, the floating charge created by this Clause
will automatically convert into a fixed charge as regards:
(i) all of the Issuer's assets subject to the floating charge, upon
the service of a Note Acceleration Notice; and/or
(ii) any assets of the Issuer subject to the floating charge, if
those assets (contrary to the covenants and undertakings
contained in the Transaction Documents):
(A) are or become subject to a Security Interest in favour
of any person other than the Issuer Security Trustee; or
(B) are or become the subject of a sale, transfer or other
disposition,
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immediately prior to that Security Interest arising or that sale,
transfer or other disposition being made.
(d) The floating charge created by this Clause may not be converted into a
fixed charge solely by reason of:
(i) the obtaining of a moratorium; or
(ii) anything done with a view to obtaining a moratorium,
under the Insolvency ▇▇▇ ▇▇▇▇.
(e) The floating charge created by this Clause is a QUALIFYING FLOATING
CHARGE for the purpose of paragraph 14 of Schedule B1 to the Insolvency
▇▇▇ ▇▇▇▇.
4. ACKNOWLEDGEMENTS AND UNDERTAKINGS
4.1 ISSUER SECURITY
(a) This Deed constitutes notice in writing to each Issuer Secured Creditor
of the assignment of all of the Issuer's rights to the Issuer Charged
Documents under Clause 3.2 (Contracts).
(b) By executing this Deed, each Issuer Secured Creditor acknowledges and
consents to the assignment referred to in this Clause 4.1 and the other
Security Interests made or granted under this Deed and confirms that as
of the date of this Deed it has not received from any other person
notice of any assignment or charge of any Issuer Charged Asset.
(c) Immediately upon the execution of this Deed, the Issuer will deliver a
notice of assignment substantially in the form set out in Schedule 1
(Form of Notice of Charge) to each of the addressees named in the notice
and will use all reasonable endeavours to procure that delivery to the
Issuer Security Trustee on the date of this Deed of receipts from the
addressees of that notice substantially in the form attached to the
notice.
(d) Each Issuer Secured Creditor acknowledges the Issuer Security and
covenants to the Issuer Security Trustee not to do anything inconsistent
with the Issuer Security or knowingly to prejudice that security or any
of the Issuer Charged Assets (or the Issuer Security Trustee's interest
in those assets) provided that, subject to Clause 5 (Restrictions on
Exercise of Certain Rights), this Deed does not limit the rights of any
of the Issuer Secured Creditors under the Transaction Documents.
4.2 REGISTRATION OF ISSUER SECURITY
Within 21 calendar days of the date of creating the Issuer Security the
Issuer undertakes to file (or to procure that a filing is made) with the
Registrar of Companies pursuant to the provisions of Chapter I of Part
XII of the Companies ▇▇▇ ▇▇▇▇ a duly completed Form 395 in respect of
itself together with the required registration fee and an executed copy
of this Deed.
4.3 TRANSACTION DOCUMENTS
Each Issuer Secured Creditor acknowledges that it is bound by, and
deemed to have notice of, all of the provisions of the Transaction
Documents as if it was a party to each Transaction Document.
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4.4 PAYMENTS TO THE ISSUER
Notwithstanding the Issuer Security but subject as provided otherwise in
this Deed, each of the parties acknowledges that:
(a) each Issuer Secured Creditor and each other party to any
Transaction Document may continue to make all payments becoming
due to the Issuer under any Transaction Document in the manner
envisaged by that document until receipt of written notice from
the Issuer Security Trustee or any Receiver requiring payments
to be made otherwise; and
(b) until the Issuer Security has become enforceable, the Issuer
shall be entitled to exercise its rights, powers and discretions
and perform its obligations in relation to the Issuer Charged
Assets and under the Transaction Documents in accordance with
the terms and conditions of the Transaction Documents.
4.5 NEW ISSUER SECURED CREDITORS
In order to become a New Issuer Secured Creditor a creditor of the
Issuer must enter into an Accession Deed in the form or substantially in
the form set out in Schedule [*].
5. RESTRICTIONS ON EXERCISE OF CERTAIN RIGHTS
5.1 PAYMENTS TO ISSUER ACCOUNTS
At all times prior to the release, re-assignment and/or discharge under
Clause 18 (Release) of the Issuer Security, the Issuer will, save as
otherwise provided in the Transaction Documents or unless the Issuer
Security Trustee otherwise agrees in writing, procure that all amounts
received by the Issuer under or in respect of the Transaction Documents
will be credited to the Issuer Accounts in accordance with the terms of
the Transaction Documents.
5.2 NO WITHDRAWALS FROM ISSUER ACCOUNTS
No payment, transfer and/or withdrawal may be made from any of the
Issuer Accounts other than as expressly permitted under this Deed or the
Cash Management Agreement or with the prior written consent of the
Issuer Security Trustee.
5.3 NO ENFORCEMENT BY ISSUER SECURED CREDITORS
(a) Except as provided below, each of the Issuer Secured Creditors (other
than, in the case of paragraph (iii) below, the Note Trustee and the
Issuer Security Trustee) agrees with the Issuer and the Issuer Security
Trustee that:
(i) only the Issuer Security Trustee may enforce the Issuer Security
in accordance with the terms and conditions of this Deed;
(ii) it will not take any steps or proceedings to procure the winding
up, administration or liquidation of the Issuer; and
(iii) it will not take any other steps or action against the Issuer or
the Issuer Charged Assets for the purpose of recovering any of
the Issuer Secured Liabilities (including by exercising any
rights of set-off) or enforcing any rights arising out of the
Transaction Documents against the Issuer.
6
(b) If the Note Trustee has failed to serve a Note Acceleration Notice or to
give directions to the Issuer Security Trustee to enforce the Issuer
Security or the Issuer Security Trustee has failed to enforce the Issuer
Security, in each case, within 30 days of becoming bound under the terms
of the Conditions, the Note Trust Deed or this Deed, as the case may be,
so to do and that failure is continuing or if there are no Notes
outstanding, then each of the Issuer Secured Creditors will be entitled
to take any steps and proceedings against the Issuer for the purpose of
recovering any of the Issuer Secured Liabilities or enforcing any rights
arising out of the Transaction Documents as it considers necessary other
than any steps or proceedings:
(i) in respect of procuring the winding up, administration or
liquidation of the Issuer; and/or
(ii) which would result in the breach by it of Clause 6 (Payments out
of the Issuer Accounts Prior to Acceleration) and/or Clause 7
(Payments out of the Issuer Accounts Upon Acceleration) and/or
any term of the other Transaction Documents.
5.4 LIMITED RECOURSE
(a) Each of the Issuer Secured Creditors (except for the Noteholders )
hereby agrees that, notwithstanding any other provision of any
Transaction Document, all obligations of the Issuer to each Issuer
Secured Creditor (except for the Noteholders ) in respect of the Issuer
Secured Liabilities owing to each Issuer Secured Creditor (except for
the Noteholders) are limited in recourse as set out below:
(i) in the event of non-payment of any sum due and payable to an
Issuer Secured Creditor (except for the Noteholders), its only
remedy shall be enforcement of the Issuer Security in accordance
with the provisions of this Deed and the other Transaction
Documents; and
(ii) in the event that the net proceeds of enforcing and (as fully as
practicable and over whatever time period the Issuer Security
Trustee considers reasonably necessary) realising all the Issuer
Security are (after application of the proceeds in accordance
with the provisions of this Deed) insufficient to discharge in
full the amount of any Issuer Secured Liability owed to an
Issuer Secured Creditor (except for the Noteholders ), the
Issuer's obligation in respect of the unpaid amount shall be
automatically extinguished and such Issuer Secured Creditor
shall have no further claim against the Issuer in respect of
such unpaid amount.
(b) The provisions of this Clause 5.4 shall survive the termination of this
Deed.
5.5 AMOUNTS RECEIVED BY ISSUER SECURED CREDITORS
Each Issuer Secured Creditor agrees that if any amount is received by it
(including by way of set?off) in respect of any Issuer Secured Liability
owed to it other than in accordance with the provisions of this Deed,
then an amount equal to the difference between the amount so received by
it and the amount that it would have received had it been paid in
accordance with the provisions of this Deed shall be received and held
by it as trustee for the Issuer Security Trustee and shall be paid over
to the Issuer Security Trustee immediately upon receipt so that such
amount can be applied in accordance with the provisions of this Deed.
6. PAYMENTS OUT OF THE ISSUER ACCOUNTS PRIOR TO ACCELERATION
6.1 APPLICATION
No payment, transfer and/or withdrawal may be made from any of the
Issuer Accounts:
7
(a) at any time upon and after enforcement of the Issuer Security
without the prior written consent of the Issuer Security
Trustee; and/or
(b) under this Clause at any time upon and after a Note Acceleration
Notice has been served.
6.2 PRIORITY OF PAYMENTS FOR ISSUER REVENUE RECEIPTS - PRIOR TO ENFORCEMENT
AND ACCELERATION
Notwithstanding the Issuer Security but subject to Clause 6.1
(Application) and Clause 6.2 (Priority of payments of Issuer Principal
Receipts - prior to enforcement and acceleration), the Issuer Cash
Manager, on behalf of the Issuer and the Issuer Security Trustee or its
appointee, will withdraw funds standing to the credit of the Issuer
Transaction Account on each Interest Payment Date (or on another date in
respect of certain payments identified therein made to satisfy certain
liabilities of the type described therein below if those payments are
due on that other date) to be applied in accordance with the terms and
conditions of the Issuer Cash Management Agreement in the order of
priority (in each case, only to the extent that payments of a higher
order of priority have been made in full) as set out in paragraph 3 of
Schedule 2 of the Issuer Cash Management Agreement provided that any
amounts raised by the Issuer by way of an issuance of Further Notes,
Replacement Notes or New Notes and standing to the credit of the Issuer
Transaction Account will not be applied by the Issuer in accordance with
such priority and such amounts will be advanced on any day by the Issuer
to the Borrower as a Further Term Loan, Replacement Term Loan and/or a
New Term Loan (as the case may be).
6.3 PRIORITY OF PAYMENTS OF ISSUER PRINCIPAL RECEIPTS - PRIOR TO ENFORCEMENT
AND ACCELERATION
Notwithstanding the Issuer Security but subject to Clause 6.1
(Application) and Clause 6.5 (Priority of Payments - upon Enforcement
but Prior to Acceleration), the Issuer Cash Manager, on behalf of the
Issuer and the Issuer Security Trustee or its appointee, will withdraw
funds standing to the credit of the Issuer Transaction Account on each
Interest Payment Date to be applied in accordance with the terms and
conditions of the Issuer Cash Management Agreement in the order of
priority (in each case, only to the extent that payments of a higher
order of priority have been made in full) provided that any amounts
raised by the Issuer by way of an issuance of Further Notes, Replacement
Notes or New Notes and standing to the credit of the Issuer Transaction
Account will not be applied by the Issuer in accordance with such
priority and such amounts will be advanced on any day by the Issuer to
the Borrower as a Further Term Loan, Replacement Term Loan and/or a New
Term Loan (as the case may be) as set out in paragraph [*] of Schedule 2
of the Issuer Cash Management Agreement.
6.4 PAYMENT OF ISSUER REVENUE RECEIPTS AFTER SERVICE OF AN ISSUER NOTE
ACCELERATION NOTICE BUT PRIOR TO THE SERVICE OF AN INTERCOMPANY LOAN
ACCELERATION NOTICE
From and including the time when an Issuer Note Acceleration Notice has
been served on the Issuer but prior to the service of an Intercompany
Loan Acceleration Notice, all Issuer Revenue Receipts received or
recovered by the Issuer Security Trustee or any Receiver for the benefit
of the Issuer Secured Creditors in respect of the Issuer Secured
Obligations shall be held by the Issuer Security Trustee or any
Receiver, as the case may be, on trust to be applied in accordance with
Clause 6.2 (Priority of Payments for Issuer Revenue Receipts - prior to
enforcement and acceleration) but as if:
(a) each of the references in the Issuer Cash Management Agreement
to the Issuer Pre-Enforcement Revenue Priority of Payments to
the Issuer Security Trustee included a reference to any Receiver
appointed by the Issuer Security Trustee;
(b) any reference in the Issuer Cash Management Agreement to the
Issuer Pre-Enforcement Revenue Priority of Payments to an amount
payable by the Issuer which is not a Issuer Secured Obligation
were deleted; and
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(c) Clause 6.2 (Priority of Payments for Issuer Revenue Receipts -
prior to enforcement and acceleration) and the Issuer
Pre-Enforcement Revenue Priority of Payments were expressed to
be subject to the provisions of Clause 6.6 (Enforcement When Not
All Amounts Due and Payable).
6.5 AUTHORISED INVESTMENTS
(a) Notwithstanding the Issuer Security but subject to Clause 6.1
(Application), the Issuer Cash Manager, on behalf of the Issuer and the
Issuer Security Trustee or its appointee, may withdraw amounts standing
to the credit of the Issuer Accounts from time to time for the purpose
of acquiring Authorised Investments in accordance with the terms of the
Issuer Bank Agreement and the Issuer Cash Management Agreement. All
amounts received in respect of any Authorised Investments (including any
amounts received as a result of a disposal under paragraph (b) below)
will be deposited into the Issuer Account.
(b) Notwithstanding the Issuer Security, the Issuer Cash Manager, on behalf
of the Issuer and the Issuer Security Trustee or its appointee, may sell
or redeem or otherwise dispose of any Authorised Investments on any day
prior to the enforcement of the Issuer Security subject to the terms and
conditions of this Deed and the Issuer Cash Management Agreement.
6.6 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Issuer Security Trustee enforces the Issuer Security at a time
when either no amounts or not all amounts owing in respect of the Issuer
Secured Obligations have become due and payable, the Issuer Security
Trustee (or a Receiver) may, for so long as no such amounts or not all
such amounts have become due and payable, pay any monies referred to in
Clause 6 (Payments out of the Issuer Accounts Prior to Acceleration)
into, and retain such monies in, an interest-bearing account (a
RETENTION ACCOUNT) to be held by it as security and applied by it in
accordance with Clause 6 (Payments out of the Issuer Accounts Prior to
Acceleration) as and when any of the amounts referred to therein become
due and payable.
7. PAYMENTS OUT OF THE ISSUER ACCOUNTS UPON ACCELERATION
7.1 PRIORITY OF PAYMENTS OF ISSUER REVENUE RECEIPTS - AFTER NOTE
ACCELERATION BUT BEFORE INTERCOMPANY LOAN ACCELERATION
All moneys received or recovered by the Issuer Security Trustee or any
Receiver in respect of the Issuer Revenue Receipts following service of
a Note Acceleration Notice but before the service of an Intercompany
Loan Acceleration Notice will be held by it on trust to be applied by
the Issuer Security Trustee in the same order of priority as set out in
the Issuer Pre-enforcement Revenue Priority of Payment except that:
(a) in addition to the amounts due to the Security Trustee under
item (a) of the Issuer Pre-enforcement Revenue Priority of
Payments, Issuer Revenue Receipts will be applied to pay amounts
due to any Receiver appointed by the Issuer Security Trustee
together with interest and any amount in respect of VAT on those
amounts, and to provide for any amounts due or to become due to
the Receiver during the following interest period; and
(b) the Issuer Security Trustee will not be required to pay amounts
due to any entity which is not an Issuer Secured Creditor.
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7.2 PRIORITY OF PAYMENTS OF ISSUER PRINCIPAL RECEIPTS - AFTER NOTE
ACCELERATION BUT BEFORE INTERCOMPANY LOAN ACCELERATION
Following the service of a Note Acceleration Notice but prior to the
service of an Intercompany Loan Acceleration Notice on Funding 1, the
Issuer Security Trustee (or Receiver appointed on its behalf) will apply
Issuer Principal Receipts on each Monthly Payment Date to repay the
Notes in the following manner (the ISSUER POST-ENFORCEMENT PRINCIPAL
PRIORITY OF PAYMENTS):
(a) the Class A Notes: from principal amounts received by the Issuer
from Funding 1 in respect of each AAA Loan Tranche (and in
respect of (ii) below, the principal amounts received (if any)
from the Issuer Swap Providers under the relevant Issuer Swap
Agreements in respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such monthly payment date to the relevant Issuer Swap
Providers in respect of the related Series and Class of
Class A Notes in accordance with the terms of the
relevant Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Monthly Payment Date on the related
Series and Class of Class A Notes;
(b) the Class B Notes: from principal amounts received by the Issuer
from Funding 1 in respect of each AA Loan Tranche (and in
respect of (ii) below, the principal amounts received (if any)
from the Issuer Swap Providers under the relevant Issuer Swap
Agreements in respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Monthly Payment Date to the relevant Issuer Swap
Providers in respect of the related Series and Class of
Class B notes in accordance with the terms of the
relevant Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Monthly Payment Date on the related
Series and Class of Class B Notes;
(c) the Class M Notes: from principal amounts received by the Issuer
from Funding 1 in respect of each A Loan Tranche (and in respect
of (ii) below, the principal amounts received (if any) from the
Issuer Swap Providers under the relevant Issuer Swap Agreements
in respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Monthly Payment Date to the relevant Issuer Swap
Providers in respect of the related Series and Class of
Class M Notes in accordance with the terms of the
relevant Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Monthly Payment Date on the related
Series and Class of Class M Notes;
(d) the Class C Notes: from principal amounts received by the Issuer
from Funding 1 in respect of each BBB Loan Tranche (and in
respect of (ii) below, the principal amounts received (if any)
from the Issuer Swap Providers under the relevant Issuer Swap
Agreements in respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Monthly Payment Date to the relevant Issuer Swap
Providers in respect of the related Series and Class
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of Class C Notes in accordance with the terms of the
relevant Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Monthly Payment Date on the related
Series and Class of Class C Notes;
(e) the Class D Notes: from principal amounts received by the Issuer
from Funding 1 in respect of each BB Loan Tranche (and in
respect of (ii) below, the principal amounts received (if any)
from the Issuer Swap Providers under the relevant Issuer Swap
Agreements in respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Monthly Payment Date to the relevant Issuer Swap
Providers in respect of the related Series and Class of
Class D Notes in accordance with the terms of the
relevant Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Monthly Payment Date on the related
Series and Class of Class D Notes;
The amounts standing to the credit of any sub-ledger of the issuer
principal ledger (in respect of a series and class of notes) may only be
applied by the Issuer Cash Manager to pay the principal amounts due (if
any) in respect of such series and class of notes under the issuer
post-enforcement principal priority of payments.
7.3 PRIORITY OF PAYMENTS OF ISSUER PRINCIPAL RECEIPTS AND ISSUER REVENUE
RECEIPTS - AFTER NOTE ACCELERATION AND INTERCOMPANY LOAN ACCELERATION
(a) Following the service of a Note Acceleration Notice on the Issuer and
the service of an Intercompany Loan Acceleration Notice on Funding 1
(known as the ISSUER POST-ENFORCEMENT PRIORITY OF PAYMENTS), of amounts
received or recovered by the Issuer Security Trustee (or a receiver
appointed on its behalf shall be applied in accordance with the order of
priorities set out in paragraph (b) below).
(b) The Issuer Security Trustee will on each Monthly Payment Date, apply
amounts (other than amounts representing (i) any Excess Swap Collateral
which shall be returned directly to the relevant Issuer Swap Provider
and (ii) in respect of each Issuer Swap Provider, prior to the
designation of an Early Termination Date under the relevant Issuer Swap
Agreement and the resulting application of the collateral by way of
netting or set-off, an amount equal to the value of all collateral
(other than Excess Swap Collateral) provided by such Issuer Swap
Provider to the Issuing Entity pursuant to the relevant Issuer Swap
Agreement (and any interest or distributions in respect thereof))
received or recovered following enforcement of the Issuer Charged Assets
as follows:
(i) without priority among them but in proportion to the respective
amounts due, to pay amounts due to:
(A) the Issuer Security Trustee and any Receiver appointed
by the Issuer Security Trustee together with interest
and any amount in respect of VAT on those amounts and
any amounts then due or to become due to the Issuer
Security Trustee and the Receiver under the provisions
of this Deed;
(B) the Note Trustee together with interest and any amount
in respect of VAT on those amounts and any amounts then
due or to become due and payable to the Note Trustee
under the provisions of the Trust Deed; and
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(C) the Agent Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amount in
respect of VAT on those amounts and any costs, charges,
liabilities and expenses then due or to become due and
payable to them under the provisions of the Paying Agent
and Agent Bank Agreement;
(ii) without priority among them but in proportion to the respective
amounts due, towards payment of amounts (together with any
amount in respect of VAT on those amounts) due and payable to
the Issuer Cash Manager under the Issuer Cash Management
Agreement and to the Issuer Corporate Services Provider under
the Issuer Corporate Services Agreement and to the Issuer
Account Bank;
(iii) subject to item (iv) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Issuer Swap Providers for each Series of Class A Notes
(excluding any termination payment);
(iv) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class A Notes and to pay
any Swap Termination Payment due to the Issuer Swap Provider for
each Series of Class A Notes (but excluding any Issuer Swap
Excluded Termination Amount) provided that if the amounts
available for distribution under this item (iv) (on the
assumption that no amounts are due and payable under item (iii)
and no amounts are received from any Issuer Swap Provider) would
be insufficient to pay the sterling equivalent of the amounts
due and payable under this item (iv), the shortfall will be
divided amongst all such amounts on a pro rata basis and the
amount payable by the Issuer to the Issuer Swap Provider in
respect of any Series of Class A Notes under item (iii) above
will be reduced by the amount of the shortfall applicable to
that Series of Class A Notes;
(v) subject to item (vi) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Issuer Swap Providers for each Series of Class B Notes
(excluding any termination payment);
(vi) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class B Notes and to pay
any Swap Termination Payment due to the Issuer Swap Provider for
each Series of Class B Notes (but excluding any Issuer Swap
Excluded Termination Amount) provided that if the amounts
available for distribution under this item (vi) (on the
assumption that no amounts are due and payable under item (v)
and no amounts are received from any Issuer Swap Provider) would
be insufficient to pay the sterling equivalent of the amounts
due and payable under this item (vi), the shortfall will be
divided amongst all such amounts on a pro rata basis and the
amount payable by the Issuer to the Issuer Swap Provider in
respect of any Series of Class B Notes under item (v) above will
be reduced by the amount of the shortfall applicable to that
Series of Class B Notes;
(vii) subject to item (vii) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Issuer Swap Providers for each Series of Class M Notes
(excluding any termination payment);
(viii) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class M Notes and to pay
any Swap Termination Payment due to the Issuer Swap Provider for
each Series of Class M Notes (but excluding any Issuer Swap
Excluded Termination Amount) provided that if the amounts
available for distribution under this item (viii) (on the
assumption that no amounts are due and payable under item (vii)
above and no amounts are received from any
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Issuer Swap Provider) would be insufficient to pay the sterling
equivalent of the amounts due and payable under this item
(viii), the shortfall will be divided amongst all such amounts
on a pro rata basis and the amount payable by the Issuer to the
Issuer Swap Provider in respect of any Series of Class M Notes
under item (vii) above above will be reduced by the amount of
the shortfall applicable to that Series of Class M Notes;
(ix) subject to item (x) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Issuer Swap Providers for each Series of Class C Notes
(excluding any termination payment);
(x) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class C Notes and to pay
any Swap Termination Payment due to the Issuer Swap Provider for
each Series of Class C Notes (but excluding any Issuer Swap
Excluded Termination Amount) provided that if the amounts
available for distribution under this item (x) (on the
assumption that no amounts are due and payable under item (ix)
and no amounts are received from any Issuer Swap Provider) would
be insufficient to pay the sterling equivalent of the amounts
due and payable under this item (x), the shortfall will be
divided amongst all such amounts on a pro rata basis and the
amount payable by the Issuer to the Issuer Swap Provider in
respect of any Series of Class C Notes under item (ix) above
will be reduced by the amount of the shortfall applicable to
that Series of Class C Notes;
(xi) subject to item (xii) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Issuer Swap Providers for each Series of Class D Notes
(excluding any termination payment);
(xii) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class D Notes and to pay
any Swap Termination Payment due to the Issuer Swap Provider for
each Series of Class D Notes (but excluding any Issuer Swap
Excluded Termination Amount) provided that if the amounts
available for distribution under this item (xii) (on the
assumption that no amounts are due and payable under item (xi)
and no amounts are received from any Issuer Swap Provider) would
be insufficient to pay the sterling equivalent of the amounts
due and payable under this item (xii), the shortfall will be
divided amongst all such amounts on a pro rata basis and the
amount payable by the Issuer to the Issuer Swap Provider in
respect of any Series of Class D Notes under item (xi) above
will be reduced by the amount of the shortfall applicable to
that Series of Class D Notes;
(xiii) without priority among them but in proportion to the respective
amounts due, to pay any Issuer Swap Excluded Termination Amount
to the Issuer Swap Providers; and
(xiv) the balance to the Issuer.
Notwithstanding the above, amounts standing to the credit of any
Sub-ledger to the Issuer Revenue Ledger and/or the Issuer Principal
Ledger (in respect of a Series and Class of Notes) may only be applied
by the Issuer Security Trustee to pay the interest, principal and other
amounts due in respect of such Series and Class of Notes or any
shortfall in the amounts available to pay items (i) to (ii) under the
Issuer Post-enforcement Priority of Payments and may not be applied in
payment of interest, principal and other amounts due in respect of any
other Series and Class of Notes.
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8. ENFORCEMENT BY THE ISSUER SECURITY TRUSTEE
8.1 MANDATORY ENFORCEMENT
(a) Subject to Clause 8.2 (Administrative receiver), the Issuer Security
Trustee will not, and will not be bound to, take any steps, institute any
proceedings, exercise its rights and/or to take any other action under or
in connection with any of the Transaction Documents (including, without
limitation, enforcing the Issuer Security) unless the Issuer Security
Trustee:
(i) has been indemnified and/or secured to its satisfaction against
all Liabilities to which is may render itself liable or which it
may incur by so doing and, for this purpose, the Issuer Security
Trustee may demand, prior to taking any such action, that there
be paid to it in advance such sums as it considers (without
prejudice to any further demand) shall be sufficient so to
indemnify it; and
(ii) is directed to do so by:
(A) the Note Trustee; or
(B) if there are no Notes outstanding, all of the other
Issuer Secured Creditors,
(in each case, the INSTRUCTING PARTY), in which case the Issuer Security
Trustee will be bound to take such action in the manner instructed by
the Instructing Party, provided that the Issuer Security Trustee may at
all times, whether or not so instructed, take such action in respect of
any right, power or discretion which is personal to the Issuer Security
Trustee or is to preserve or protect the Issuer Security Trustee's
position or is of a purely administrative nature.
(b) The Issuer Security Trustee shall not be liable to any Issuer Secured
Creditor for any action it may take in accordance with any instructions
received pursuant to paragraph (a) above. The Issuer Security Trustee
shall be entitled to seek clarification from the relevant Instructing
Party with regard to such instructions and may in its discretion elect
not to act pending receipt of such clarification to its satisfaction
from such relevant Instructing Party.
(c) Upon being directed by the Note Trustee to enforce the Issuer Security
in accordance with paragraph (a)(i) above, the Issuer Security Trustee
will notify the Issuer and the Issuer Secured Creditors of such
direction.
8.2 ADMINISTRATIVE RECEIVER
(a) Notwithstanding any term of this Deed, subject to paragraph (b) below,
the Issuer Security Trustee must enforce the Issuer Security by
appointing an administrative receiver in respect of the Issuer if it has
actual notice of:
(i) an application for the appointment of an administrator in
respect of the Issuer; or
(ii) the giving of a notice of intention to appoint an administrator
in respect of the Issuer.
and that appointment shall take effect not later than the final day by
which it must take effect in order to prevent an administration
proceeding.
(b) The Issuer Security Trustee is not liable for any failure to appoint an
administrative receiver in respect of the Issuer, save in the case of
its own gross negligence, wilful default or fraud and, for the avoidance
of doubt:
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(i) nothing in this Clause 8.2 (Administrative receiver) shall
construed so as to impose on the Issuer Security Trustee any
obligation to indemnify any administrative receiver appointed by
it pursuant to this Clause 8.2 (Administrative receiver) except
to the extent of (and from) the cash and assets comprising the
Issuer Security held by the Issuer Security Trustee at such
time; and
(ii) the Issuer Security Trustee shall have no liability if, having
used its reasonable endeavours, it is unable to find a person
who is willing to be appointed as an administrative receiver on
the terms as to indemnification referred to in paragraph (b)(i)
above.
(c) The Issuer Security Trustee shall not be liable to any Issuer Secured
Creditor for any action it may take in accordance with paragraph (a)
above.
(d) The Issuer hereby waives any claims against the Issuer Security Trustee
in respect of any appointment made pursuant to this Clause 8.2.
9. ENFORCEMENT OF ISSUER SECURITY
9.1 GENERAL
(a) For the purposes of all powers implied by statute, the Issuer Secured
Liabilities are deemed to have become due and payable on the date of
this Deed.
(b) Section 103 of the 1925 Act (restricting the power of sale) and Section
93 of the 1925 Act (restricting the right of consolidation) do not apply
to the Security Interests comprised in the Issuer Security.
9.2 NOTE EVENT OF DEFAULT
The Issuer Security will become immediately enforceable upon the
occurrence of a Note Event of Default or, if there are no Notes
outstanding, upon failure by the Issuer to pay any other Issuer Secured
Liability on its due date (subject to any applicable grace period).
9.3 PRIVILEGES
The Issuer Security Trustee and each Receiver is entitled to all the
rights, powers, privileges and immunities conferred by the 1925 Act on
mortgagees and receivers duly appointed under the 1925 Act, except that
Section 103 of the 1925 Act does not apply.
9.4 POWER OF SALE
The power of sale and other powers conferred by Section 101 of the 1925
Act, as extended and varied by this Deed, will be immediately
exercisable at any time after the Issuer Security has become
enforceable.
9.5 EXTENSION OF THE 1925 ACT
(a) The statutory powers of leasing conferred on the Issuer Security Trustee
are extended so as to authorise the Issuer Security Trustee to lease,
make agreements for leases, accept surrenders of leases and grant
options as the Issuer Security Trustee may think fit and without the
need to comply with any provision of Section 99 or 100 of the ▇▇▇▇ ▇▇▇.
(b) The statutory powers of sale and the other powers conferred on the
Issuer Security Trustee by Section 101(1) and (2) of the 1925 Act are
extended so as to authorise the Issuer Security Trustee
15
(upon such terms as the Issuer Security Trustee may think fit and in
accordance with the terms of this Deed) to:
(i) make demand in the name of the other Issuer Secured Creditors or
in its own right for any moneys and liabilities in respect of
the Issuer Charged Assets; and
(ii) do all or any of the things or exercise all or any of the powers
referred to in Clause 11 (Powers of Receiver) as if each of them
was expressly conferred on the Issuer Security Trustee by this
Deed.
9.6 MORTGAGEE IN POSSESSION
(a) Neither the Issuer Security Trustee nor any Receiver will be liable, by
reason of the Issuer Security or entering into possession of an Issuer
Charged Asset, to account as mortgagee in possession or for any loss on
realisation or for any default or omission for which a mortgagee in
possession might be liable.
(b) Each of the Issuer Security Trustee, the other Issuer Secured Creditors
and any Receiver will not take any action (other than, in the case of
the other Issuer Secured Creditors, with the Issuer Security Trustee's
prior written consent) which would be likely to lead to the Issuer
Security Trustee or the other Issuer Secured Creditors becoming a
mortgagee in possession in respect of any Issuer Charged Asset.
9.7 PROTECTION OF THIRD PARTIES
No person (including a purchaser) dealing with the Issuer Security
Trustee or any Receiver or its or his agents will be concerned to
enquire:
(a) whether the Issuer Secured Liabilities remain outstanding or
have become payable;
(b) whether any power which the Issuer Security Trustee or that
Receiver is purporting to exercise has become exercisable or is
being properly exercised; or
(c) how any money paid to the Issuer Security Trustee or to that
Receiver is to be applied,
and the protections afforded to purchasers from a mortgagee by Section
104 and 107 of the 1925 Act and to persons dealing with an
administrative receiver by Section 42(3) of the Insolvency ▇▇▇ ▇▇▇▇ will
apply.
9.8 CONTINGENCIES
If the Issuer Security is enforced at a time when no amount is due in
respect of the Issuer Secured Liabilities or any of the Issuer Secured
Liabilities are contingent or future, the Issuer Security Trustee or any
Receiver may pay the proceeds of any recoveries effected by it into any
interest?bearing account to be held by it as security and applied in
accordance with the terms and conditions of this Deed and the Issuer
Cash Management Agreement.
10. RECEIVER
10.1 APPOINTMENT OF RECEIVER
(a) Except as provided below, the Issuer Security Trustee may appoint any
one or more persons to be a Receiver of all or any part of the Issuer
Charged Assets if the Issuer Security has become enforceable.
16
(b) Any appointment under paragraph (a) above may be by deed, under seal or
in writing under its hand.
(c) Except as provided below, any restriction imposed by law on the right of
a mortgagee to appoint a Receiver (including under section 109(1) of the
▇▇▇▇ ▇▇▇) does not apply to this Deed.
(d) The Issuer Security Trustee is not entitled to appoint a Receiver solely
as a result of:
(i) the obtaining of a moratorium; or
(ii) anything done with a view to obtaining a moratorium,
under the Insolvency ▇▇▇ ▇▇▇▇.
10.2 REMOVAL
The Issuer Security Trustee may by writing under its hand (subject to
any requirement for an order of the court in the case of an
administrative receiver) remove any Receiver appointed by it and may,
whenever it thinks fit, appoint a new Receiver in the place of any
Receiver whose appointment may for any reason have terminated. The
Issuer Security Trustee may apply to the court for an order removing an
administrative receiver.
10.3 REMUNERATION
The Issuer Security Trustee may fix the remuneration of any Receiver
appointed by it and the maximum rate specified in Section 109(6) of the
1925 Act will not apply. The Issuer will pay the remuneration of any
Receiver in accordance with the terms and in the manner agreed from time
to time between the relevant Receiver and the Issuer Security Trustee,
subject to the terms and conditions of this Deed.
10.4 AGENT OF THE ISSUER
(a) A Receiver will be deemed to be the agent of the Issuer for all purposes
and accordingly will be deemed to be in the same position as a Receiver
duly appointed by a mortgagee under the 1925 Act. The Issuer alone is
responsible for the contracts, engagements, acts, omissions, defaults
and losses of a Receiver and for liabilities incurred by a Receiver.
(b) If a liquidator of the Issuer is appointed, the Receiver will act as
principal and not as agent of the Issuer Security Trustee.
(c) The Issuer Security Trustee will not incur any liability (either to the
Issuer or to any other person) by reason of the appointment of a
Receiver.
10.5 RELATIONSHIP WITH ISSUER SECURITY TRUSTEE
To the fullest extent allowed by law, any right, power or discretion
conferred by this Deed (either expressly or impliedly) or by law on a
Receiver may after the Issuer Security becomes enforceable be exercised
by the Issuer Security Trustee in relation to any Issuer Charged Asset
without first appointing a Receiver and notwithstanding the appointment
of a Receiver.
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11. POWERS OF RECEIVER
11.1 GENERAL
(a) A Receiver has all of the rights, powers and discretions set out below in
this Clause in addition to those conferred on it by any law; this
includes:
(i) in the case of an administrative receiver, all the rights,
powers and discretions conferred on an administrative receiver
under the Insolvency ▇▇▇ ▇▇▇▇; and
(ii) otherwise, all the rights, powers and discretions conferred on a
receiver (or a receiver and manager) under the 1925 Act and the
Insolvency ▇▇▇ ▇▇▇▇.
(b) If there is more than one Receiver holding office at the same time, each
Receiver may (unless the document appointing him states otherwise)
exercise all of the powers conferred on a Receiver under this Deed
individually and to the exclusion of any other Receiver.
11.2 POSSESSION
A Receiver may take immediate possession of, get in and collect any
Issuer Charged Asset.
11.3 CARRY ON BUSINESS
A Receiver may carry on any business of the Issuer in any manner he
thinks fit.
11.4 EMPLOYEES
(a) A Receiver may appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes of this Deed
upon such terms as to remuneration or otherwise as he thinks fit.
(b) A Receiver may discharge any person appointed by the Issuer.
11.5 BORROW MONEY
A Receiver may raise and borrow money either unsecured or on the
security of any Issuer Charged Asset either in priority to the Issuer
Security or otherwise and generally on any terms and for whatever
purpose which he thinks fit.
11.6 SALE OF ASSETS
(a) A Receiver may sell, exchange, convert into money and realise any Issuer
Charged Asset by public auction or private contract and generally in any
manner and on any terms which he thinks fit.
(b) The consideration for any such transaction may consist of cash,
debentures or other obligations, shares, stock or other valuable
consideration and any such consideration may be payable in a lump sum or
by instalments spread over any period which he thinks fit.
(c) Fixtures, other than landlord's fixtures, may be severed and sold
separately from the property containing them without the consent of the
Issuer.
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11.7 LEASES
A Receiver may let any Issuer Charged Asset for any term and at any rent
(with or without a premium) which he thinks fit and may accept a
surrender of any lease or tenancy of any Issuer Charged Asset on any
terms which he thinks fit (including the payment of money to a lessee or
tenant on a surrender).
11.8 COMPROMISE
A Receiver may settle, adjust, refer to arbitration, compromise and
arrange any claim, account, dispute, question or demand with or by any
person who is or claims to be a creditor of the Issuer or relating in
any way to any Issuer Charged Asset, provided that, any such claim has
priority to or ranks pari passu with this Deed.
11.9 LEGAL ACTIONS
A Receiver may bring, prosecute, enforce, defend and abandon any action,
suit or proceedings in relation to any Issuer Charged Asset which he
thinks fit.
11.10 RECEIPTS
A Receiver may give a valid receipt for any moneys and execute any
assurance or thing which may be proper or desirable for realising any
Issuer Charged Asset.
11.11 SUBSIDIARIES
A Receiver may form a Subsidiary of the Issuer and transfer to that
Subsidiary any Issuer Charged Asset.
11.12 DELEGATION
A Receiver may delegate his powers in accordance with this Deed.
11.13 LENDING
A Receiver may lend money or advance credit to any customer of the
Issuer.
11.14 PROTECTION OF ASSETS
A Receiver may:
(a) effect any repair or insurance and do any other act which the
Issuer might do in the ordinary conduct of its business to
protect or improve any Issuer Charged Asset;
(b) commence and/or complete any building operation; and
(c) apply for and maintain any planning permission, building
regulation approval or any other authorisation,
in each case as he thinks fit.
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11.15 UNCALLED CAPITAL
A Receiver may call up or require the directors of the Issuer to call up
any uncalled capital of the Issuer.
11.16 PAYMENT OF EXPENSES
A Receiver may pay and discharge, out of the profits and income of the
Issuer Charged Assets and any moneys made by it in carrying on the
business of the Issuer, the expenses incurred by it in connection with
the carrying on and management of that business or in the exercise of
any of the powers conferred by this Clause or otherwise in respect of
the Issuer Charged Assets and all other expenses which it shall think
fit to pay and will apply the residue of those profits and income in
accordance with the terms and conditions of this Deed.
11.17 OTHER POWERS
A Receiver may:
(a) do all other acts and things which he may consider desirable or
necessary for realising any Issuer Charged Asset or incidental
or conducive to any of the rights, powers or discretions
conferred on a Receiver under or by virtue of this Deed or law;
(b) exercise in relation to any Issuer Charged Asset all the powers,
authorities and things which he would be capable of exercising
if he were the absolute beneficial owner of that Issuer Charged
Asset; and
(c) use the name of the Issuer for any of the above purposes.
12. MODIFICATION, AUTHORISATION, WAIVER, AND CONSENT
12.1 MODIFICATION
The Issuer Security Trustee shall concur (or direct the Funding 1
Security Trustee to concur) with the Issuer or any other person in
making any modification to any Transaction Document only if so directed
by the Note Trustee so long as there are any Notes outstanding.
12.2 AUTHORISATION OR WAIVER
The Issuer Security Trustee shall waive or authorise (or direct the
Funding 1 Security Trustee to waive or authorise) (without prejudice to
its rights in respect of any further or other breach) any breach or
proposed breach by the Issuer or any other person of any of the
covenants or provisions of any Transaction Document only if so directed
by the Note Trustee so long as there are any Notes outstanding.
12.3 REQUESTS FOR CONSENT OR APPROVAL
If a request is made to the Issuer Security Trustee by the Issuer or any
other person to give its consent or approval to any event, matter or
thing, then:
(a) if any Transaction Document specifies that the Issuer Security
Trustee is required to give its consent or approval to that
event, matter or thing if certain specified conditions are
satisfied in relation to that event, matter or thing, then the
Issuer Security Trustee will give its consent or approval to
that event, matter or thing upon being satisfied that those
specified conditions have been satisfied; and
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(b) in any other case, the Issuer Security Trustee shall give its
consent or approval to that event, matter or thing only if so
directed by the Note Trustee so long as there are any Notes
outstanding.
12.4 BINDING ON ISSUER SECURED CREDITORS
Any modification, authorisation, waiver, consent or approval provided
under this Clause will be binding on all of the Issuer Secured
Creditors.
12.5 ADDITIONAL TERMS AND CONDITIONS
Any modification, authorisation, waiver, consent or approval provided
under this Clause may be made or given on such terms and subject to such
conditions (if any) as the Note Trustee may direct so long as there are
any Notes outstanding.
12.6 NOTICE TO ISSUER SECURED CREDITORS
If required by the Issuer Security Trustee, the Issuer will as soon as
practicable notify:
(a) the Noteholders in accordance with the Conditions; and
(b) each of the other Issuer Secured Creditors in accordance with
this Deed,
in each case, of any modification, authorisation or waiver made under
this Clause.
13. ADDITIONAL PROVISIONS REGARDING THE ISSUER SECURITY TRUSTEE
13.1 INCORPORATION OF NOTE TRUST DEED PROVISIONS
(a) Without prejudice to the other provisions of this Deed and except as set
out below, the following Clauses of the Note Trust Deed are incorporated
in and will apply, mutatis mutandis, to this Deed (and for that purpose
references in that Clause to "these presents" or to "this Deed" will be
construed as references to this Issuer Deed of Charge and references in
that Clause to "the Note Trustee" will be construed as references to the
Issuer Security Trustee):
(i) Clause 13 (Investment by Note Trustee);
(ii) Clause 16 (Remuneration and indemnification of the Note
Trustee);
(iii) Clause 17 (Supplement to Trustee Acts);
(iv) Clause 18 (Note Trustee's liability);
(v) Clause 19 (Note Trustee contracting with Issuer and others);
(vi) Clause 27 (New Trustee);
(vii) Clause 29 (Note Trustee's retirement and removal); and
(viii) Clause 30 (Note Trustee's powers to be additional).
(b) Clause 16 (Remuneration and indemnification of the Note Trustee) of the
Note Trust Deed will be amended so that:
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(i) the last sentence of clause 16.1(a) is deleted and replaced by
the following:
"Such remuneration shall accrue from day to day and be payable
up to and including the date when the Issuer Security Period has
expired and the Issuer Security Trustee has released, reassigned
and/or discharged the Issuer Charged Assets from the Issuer
Security as provided under this Deed."; and
(ii) each of the references to the Issuer Security Trustee in clauses
16.5, 16.6 and 16.7 include a reference to any Receiver
appointed by the Issuer Security Trustee.
(c) The following words shall be added to the end of clause 17(w)(ii) before
the final full stop:
", provided that if the Issuer Security Trustee is required to appoint
an administrative receiver pursuant to clause 8.2 (Administrative
receiver) of the Issuer Deed of Charge, the Issuer Security Trustee
agrees that it is adequately indemnified and secured in respect of such
appointment by virtue of its rights against the Issuer under the Issuer
Deed of Charge and the security that it has in respect of such rights."
13.2 NO TRANSFER OF OBLIGATIONS
Notwithstanding anything else in this Deed, the Issuer Security Trustee
does not assume and will not be obliged to perform any obligations of
any other Party.
13.3 NO OBLIGATION TO INSURE
The Issuer Security Trustee shall not be under any obligation to insure
in respect of any of the Issuer Charged Assets or to require any other
person to maintain any such insurance.
14. ISSUER POWER OF ATTORNEY
The Issuer, by way of security, irrevocably and severally appoints the
Issuer Security Trustee, each Receiver and any of its delegates or
sub-delegates to be its attorney to take any action which the Issuer is
obliged to take under this Deed. The Issuer ratifies and confirms
whatever any attorney does or purports to do under its appointment under
this Clause.
15. FURTHER ASSURANCES
The Issuer must, at its own expense, take whatever action the Issuer
Security Trustee or a Receiver may require for:
(a) creating, perfecting or protecting any security intended to be
created by this Deed; or
(b) facilitating the realisation of any Issuer Charged Asset, or the
exercise of any right, power or discretion exercisable, by the
Issuer Security Trustee or any Receiver or any of its delegates
or sub-delegates in respect of any Issuer Charged Asset.
This includes:
(i) the execution of any transfer, conveyance, assignment or
assurance of any property, whether to the Issuer Security
Trustee or to its nominee; or
(ii) the giving of any notice, order or direction and the making of
any registration,
which, in any such case, the Issuer Security Trustee may think
expedient.
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16. ADDITIONAL PROVISIONS RELATING TO THE ISSUER SECURITY
16.1 CONTINUING SECURITY
The Issuer Security will remain in force as continuing security for the
Issuer Secured Liabilities notwithstanding any settlement of account or
the existence at any time of a credit balance on any Issuer Account or
other account or any other act, event or matter.
16.2 NO MERGER
The Issuer Security is in addition to, and will not be merged in, or in
any way exclude or prejudice any other Security Interest or other right
which the Issuer Security Trustee or any other Issuer Secured Creditor
may now or at any time have (or would apart from the Issuer Security
have) as regards the Issuer or any other person in respect of the Issuer
Secured Liabilities.
16.3 AVOIDANCE OF SECURITY OR PAYMENT
(a) If an amount paid to the Issuer Security Trustee, the Noteholders or any
of the other Issuer Secured Creditors under a Transaction Document is
capable of being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency or liquidation for the
time being in force or otherwise, then that amount will not be
considered to have been irrevocably paid for the purposes of this Deed.
(b) Any settlement, discharge or release between the Issuer and the Issuer
Security Trustee (or any Receiver) will be conditional upon no security
or payment granted or made to the Issuer Security Trustee (or any
Receiver, as the case may be) by the Issuer or any other person being
avoided or reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency or liquidation for the time being in force.
(c) If any security or payment is avoided or reduced in the circumstances
described in paragraph (a) above, then the Issuer Security Trustee (or
any Receiver, as the case may be) will be entitled to recover the value
or amount of such security or payment from the Issuer as if the relevant
settlement, discharge or release had not occurred.
16.4 RETENTION OF ISSUER SECURITY
(a) If the Issuer Security Trustee has grounds for believing that the Issuer
may be unable to pay its debts as they fall due as at the date of any
payment made by the Issuer to the Issuer Security Trustee, the
Noteholders or any of the other Issuer Secured Creditors, then the
Issuer Security Trustee may retain the Issuer Security until the expiry
of a period of (subject to paragraph (b) below) one month plus the
statutory period within which any assurance, security, guarantee or
payment can be avoided or invalidated after the payment and discharge in
full of all Issuer Secured Liabilities notwithstanding any release,
settlement, discharge or arrangement which may be given or made by the
Issuer Security Trustee on, or as a consequence of, such payment or
discharge of liability.
(b) If, at any time within the period referred to in paragraph (a) above,
any person presents a petition, or files documents with a court or any
registrar for the winding-up or administration of the Issuer or any
analogous proceedings are commenced by or against the Issuer, the Issuer
Security Trustee may continue to retain the Issuer Security for such
further period as it may determine and the Issuer Security will be
deemed to continue to be held as security for the payment and discharge
to the Issuer Security Trustee of all of the Issuer Secured Liabilities.
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16.5 CHANGE OF NAME, ETC.
This Deed will remain valid and enforceable notwithstanding any change
in the name, composition or constitution of the Issuer Security Trustee
or the Issuer or any merger, amalgamation or consolidation by the Issuer
Security Trustee or the Issuer with any other corporation.
16.6 NEGATIVE PLEDGE
The Issuer shall not, save for the Issuer Security, or with the prior
written consent of the Issuer Security Trustee, or unless otherwise
permitted under any of the Transaction Documents, create or permit to
subsist any Security Interest whatsoever, however created or arising
(unless arising by operation of law) over any of its property, assets or
undertakings present or future (including any uncalled capital) or any
interest, estate, right, title or benefit therein or use, invest or
dispose of, including by way of sale or the grant of any Security
Interest of whatsoever nature or otherwise deal with, or agree or
attempt or purport to sell or otherwise dispose of (in each case whether
by one or a series of transactions) or grant any option or right to
acquire any such property, assets or undertaking present or future.
17. SET-OFF
(a) The Issuer Security Trustee may at any time following an Issuer Event of
Default (without notice and notwithstanding any settlement of account or
other matter):
(i) combine or consolidate all or any existing accounts of the
Issuer whether in its own name or jointly with others and held
by it or any Issuer Secured Creditor;
(ii) set-off or transfer all or any part of any credit balance or any
sum standing to the credit of any account referred to in
paragraph (a) above (whether or not the same is due to the
Issuer from the Issuer Security Trustee or relevant Issuer
Secured Creditor and whether or not the credit balance and the
account in debit or the Issuer Secured Liabilities are expressed
in the same currency) in or towards satisfaction of any of the
Issuer Secured Liabilities; and/or
(iii) in its discretion, estimate the amount of any liability of the
Issuer which is contingent or unascertained and set-off such
estimated amount.
(b) No amount will be payable by the Issuer Security Trustee to the Issuer
unless and until all Issuer Secured Liabilities have been ascertained
and fully repaid or discharged.
18. RELEASE
18.1 UPON DISCHARGE OF ISSUER SECURED LIABILITIES
At the end of the Issuer Security Period, the Issuer Security Trustee
will, at the cost of the Issuer, take whatever action is necessary to
release the Issuer Charged Assets from the Issuer Security to, or to the
order of, the Issuer.
18.2 AUTHORISED INVESTMENTS
Upon the Issuer or the Issuer Cash Manager on its behalf making a
disposal of an Authorised Investment charged under this Deed and
provided that the proceeds of such disposal are paid into the Issuer
Transaction Account in accordance with the terms of this Deed and the
Issuer Cash Management Agreement,, such Authorised Investment will be
deemed to be released from the Issuer Security the Issuer Security
Trustee will, at the request and cost of the Issuer take whatever action
is necessary to release that Authorised Investment from the Issuer
Security.
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18.3 MORTGAGE LOANS
Upon the Issuer making a disposal of a Mortgage Loan and its Related
Security charged under this Deed by repurchase by the Seller in
accordance with the terms of the Mortgage Sale Agreement, the Issuer
Security Trustee will, at the request and cost of the Issuer, take
whatever action is necessary to release that Mortgage Loan and its
Related Security from the Issuer Security.
18.4 ISSUER ACCOUNTS
For the avoidance of doubt, all amounts which the Issuer Cash Manager
(on behalf of the Issuer and the Issuer Security Trustee or its
appointee) is permitted to withdraw from the Issuer Transaction Account
pursuant to Clause 6.2 (Priority of payments - prior to enforcement and
acceleration) will be deemed to be released from the Issuer Security
upon the relevant withdrawal provided that, where the relevant amount is
transferred to another Issuer Account, it will become subject to the
Issuer Security in respect of that other Issuer Account.
18.5 NO LIABILITY FOR LOSS
The Issuer Security Trustee will not be liable to the Issuer or any
other person for any loss, costs, claims or liabilities arising in
connection with its acting upon a request made under this Clause and/or
any release made under this Clause.
19. ISSUER REPRESENTATIONS
19.1 TITLE
The Issuer represents to the Issuer Security Trustee that it is the
beneficial owner of the Issuer Charged Assets and the Issuer Charged
Assets are free of any Security Interests (except for those created by
or under this Deed) and any other rights or interests (including any
licences) in favour of third parties.
19.2 NO RESTRICTION
As at the Closing Date, none of its property, assets and/or undertaking
are subject to any restriction (whether contractual or otherwise) that
may render the Security Interests granted by the Issuer under this Deed
ineffective or which otherwise prohibit the grant of such Security
Interests.
19.3 STEPS TAKEN
The Issuer represents to the Issuer Security Trustee that it has taken
all necessary steps to enable it to create the Issuer Security in
accordance with this Deed and has taken no actions or steps which will
or may prejudice its rights, title and interest in, to and under the
Issuer Charged Assets.
19.4 ISSUER CHARGED DOCUMENTS
The Issuer represents to the Issuer Security Trustee that:
(a) each Issuer Charged Document is its legally binding, valid, and
enforceable obligation;
(b) it is not in default of any of its obligations under any Issuer
Charged Document;
(c) there is no prohibition on assignment in any Issuer Charged
Document; and
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(d) its entry into and performance of this Deed will not conflict
with any term of any Issuer Charged Document.
19.5 NATURE OF SECURITY
The Issuer represents to the Issuer Security Trustee that this Deed
creates those Security Interests it purports to create and is not liable
to be amended or otherwise set aside on its liquidation or
administration or otherwise, except that Security Interests expressed to
be fixed may take effect as floating charge security.
19.6 CENTRE OF MAIN INTERESTS AND ESTABLISHMENT
(a) The Issuer represents to the Issuer Security Trustee that its "centre of
main interests" for the purposes of the Insolvency Regulation and the
UNCITRAL Implementing Regulations is in England and it does not have any
"establishment" (as defined in the Insolvency Regulation and the
UNCITRAL Implementing Regulations) other than in England.
(b) The Issuer undertakes to conduct its business and affairs such that, at
all relevant times, its "centre of main interests" for the purposes of
the Insolvency Regulation and the UNCITRAL Implementing Regulations will
be and remain in England and it will not have any "establishment" (as
defined in the Insolvency Regulation and the UNCITRAL Implementing
Regulations) other than in England.
19.7 TIMES FOR MAKING REPRESENTATIONS
(a) The representations set out in this Deed (including in this Clause) are
made on the date of this Deed.
(b) Unless a representation is expressed to be given at a specific date,
each representation under this Deed is deemed to be repeated by the
Issuer on each date during the Issuer Security Period.
(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
20. EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the Issuer
Security, any statement (which will contain information in reasonable
detail in support thereof) as to:
(a) any amount due to any Issuer Secured Creditor;
(b) all or any part of the Issuer Secured Liabilities; or
(c) any amounts which have been notified to the Issuer Security
Trustee as being amounts due to any Issuer Secured Creditor,
in each case, which is certified as being correct by an officer of the
Issuer Security Trustee or an officer of the relevant Issuer Secured
Creditor will be conclusive evidence that such amount is in fact due and
payable.
21. RIGHTS CUMULATIVE
The respective rights of the Issuer Security Trustee and any Receiver
under this Deed:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
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(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of that
right.
22. SEVERABILITY
If a term of this Deed is or becomes illegal, invalid or unenforceable
in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other term of this Deed; or
(b) the legality, validity or enforceability in any other
jurisdiction of that or any other term of this Deed.
23. COUNTERPARTS
This Deed may be executed and delivered in any number of counterparts
(including by facsimile), all of which, taken together, shall constitute
one and the same deed and any Party may enter into the same by executing
and delivering a counterpart (including by facsimile).
24. NOTICES
24.1 IN WRITING
Any communication in connection with this Deed must be in writing and,
unless otherwise stated, may be given in person, by post or by fax.
Unless it is agreed to the contrary, any consent or agreement required
under this Deed must be given in writing.
24.2 PARTY DETAILS
The contact details of each Party for all communications in connection
with this Deed are those set out below:
(a) ISSUER: ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: [Secretary]
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
(b) SELLER: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
For the attention of: Head of Mortgage Securisation
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(c) ISSUER SECURITY TRUSTEE 48th Floor, One Canada, Square,
AND NOTE TRUSTEE: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: Global Corporate Trust Administration
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/6399
(d) AGENT BANK/REGISTRAR AND Citigroup Centre, Canada Square,
PRINCIPAL PAYING AGENT: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: [*]
Facsimile: [*]
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(e) U.S. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor,
PAYING AGENT: ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For the attention of: [*]
Facsimile: [*]
(f) ISSUER SWAP PROVIDER: [*]
For the attention of: [*]
Facsimile: [*]
(g) SERVICER: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
For the attention of: Head of Mortgage Securisation
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(h) ISSUER CASH MANAGER: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: [*]
Facsimile: [*]
(i) ISSUER ACCOUNT BANK: ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: [*]
Telephone: [*]
Facsimile: [*]
(j) ISSUER CORPORATE SERVICES PROVIDER: ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: [*]
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
24.3 CHANGES
Any Party may change its contact details by giving five Business Days'
notice to the other Parties.
24.4 EFFECTIVENESS
(a) Except as provided below, any notice in connection with this Deed will
be deemed to be given as follows:
(i) if delivered in person, at the time of the delivery;
(ii) if posted, five days after being deposited in the post, postage
prepaid, in a correctly addressed envelope; and
(iii) if by fax, when received in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
25. LANGUAGE
(a) Any notice given in connection with this Deed must be in English.
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(b) Any other document provided in connection with this Deed must be:
(i) in English; or
(ii) accompanied by a certified English translation. In this case,
the English translation prevails unless the document is a
statutory or other official document.
26. LAW AND JURISDICTION
26.1 GOVERNING LAW
This Deed and all matters arising out of or in connection with it shall
be governed by, and construed in accordance with, English law.
26.2 SUBMISSION TO JURISDICTION
The Issuer irrevocably agrees for the benefit of the Issuer Security
Trustee and the other Issuer Secured Creditors that the English courts
have exclusive jurisdiction to settle any dispute which may arise out of
or in connection with this Deed and accordingly submits to the exclusive
jurisdiction of the English courts. The Issuer waives any objection to
the courts of England on the grounds that they are an inconvenient or
inappropriate forum. The Issuer Security Trustee and the other Issuer
Secured Creditors may take any suit, action or proceeding arising out of
or in connection with this Deed (together referred to as PROCEEDINGS)
against the Issuer in any other court of competent jurisdiction and
concurrent Proceedings in any number of jurisdictions.
26.3 WAIVER OF TRIAL BY JURY
Each party waives any right it may have to a jury trial of any claim or
cause of action in connection with any finance document or any
transaction contemplated by any finance document. This deed may be filed
as a written consent to trial by court.
27. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a Party has no rights under the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of these presents, but this
does not affect any right or remedy of a third party which exists or is
available apart from that Act.
THIS DEED has been executed as a deed by each of the Parties and delivered on
the date stated at the beginning of this Deed.
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SCHEDULE 1
FORM OF NOTICE OF CHARGE
From: Permanent Master Issuer plc (the ISSUER)
To: [Relevant party name[s]]
Copy: The Bank of New York (the ISSUER SECURITY TRUSTEE)
[date]
Dear Sirs,
We hereby give you notice that by a deed of charge dated [date] and made
between the Issuer, the Issuer Security Trustee and others (the ISSUER DEED OF
CHARGE), the Issuer charged to the Issuer Security Trustee all of its right,
title, interest and benefit, present and future, in, to and under the [insert
relevant agreement name[s]] dated [insert date] (each as defined in the Master
Definitions and Construction Schedule signed on the date hereof by, inter
alios, the Issuer and the [relevant party name[s]] and made, in each case,
between, amongst others, the Issuer and the [relevant party name[s]].
You are authorised and instructed henceforth to deal with the Issuer Security
Trustee in relation to our rights (but not our obligations) under the [insert
relevant agreement name[s]] without further reference to us.
This notice is irrevocable. Please acknowledge receipt of this notice to the
Issuer Security Trustee on the attached Consent to Charge.
Yours faithfully,
.........................
For and on behalf of
PERMANENT MASTER ISSUER PLC
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SCHEDULE 2
FORM OF CONSENT TO CHARGE
From: The Bank of New York
To: [Issuer Security Trustee name] (the ISSUER SECURITY TRUSTEE) Permanent
Master Issuer plc (the ISSUER)
[date]
Dear Sirs,
We hereby acknowledge receipt of the notice of charge dated [date] relating to
the Issuer Deed of Charge (as defined therein) as adequate notice of the charge
described therein.
We agree to deal only with the Issuer Security Trustee in relation to the
Issuer's rights (but not its obligations) under the [relevant agreement
name[s]] referred to, and as defined in, such notice without any reference to
the Issuer.
We have not received from any other person any notice of charge of or any
interest in the [relevant agreement name[s]].
Yours faithfully,
.........................
For and on behalf of
[Relevant party name]
.........................
For and on behalf of
[Relevant party name]
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SIGNATORIES
THE ISSUER
EXECUTED as a DEED by )
PERMANENT MASTER ISSUER PLC )
acting by )
Director
Director/Secretary
THE ISSUER SECURITY TRUSTEE
EXECUTED as a DEED as follows )
THE BANK OF NEW YORK )
signed for and on its behalf by one of its )
duly authorised attorneys/signatories )
By:
Duly authorised attorney/signatory
Name:
THE NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
signed for and on its behalf by one of its )
duly authorised attorneys/signatories )
By:
Duly authorised attorney/signatory
Name:
32
PRINCIPAL PAYING AGENT/AGENT BANK/REGISTRAR
EXECUTED as a DEED by )
CITIBANK N.A. )
signed for and on its behalf by one of its )
duly authorised attorneys/signatories )
By:
Duly authorised attorney/signatory
Name:
U.S. PAYING AGENT
EXECUTED as a DEED by )
CITIBANK N.A. )
signed for and on its behalf by one of its )
duly authorised attorneys/signatories )
By:
Duly authorised attorney/signatory
Name:
THE ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
[*] )
acting by its duly authorised attorney )
By:
Name:
THE SERVICER
EXECUTED as a DEED by )
HALIFAX PLC )
acting by its duly authorised attorney )
By:
Name:
THE ISSUER CASH MANAGER
EXECUTED as a DEED by )
HALIFAX )
acting by its duly authorised attorney )
By:
Name:
33
THE ISSUER ACCOUNT BANK
EXECUTED as a DEED by )
BANK OF SCOTLAND )
acting by its duly authorised attorney )
By:
Name:
THE ISSUER CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
STRUTURE FINANCE MANAGEMENT )
LIMITED )
acting by )
34