DRAFT
Exhibit 4.4
NINTH ISSUER DEED OF CHARGE
DATED [*], 2005
▇▇▇▇▇▇ FINANCING (NO. 9) PLC
AND
THE BANK OF NEW YORK, LONDON BRANCH
AND
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
AND
ABBEY NATIONAL PLC
AND
CITIBANK, N.A., LONDON BRANCH
AND
JPMORGAN CHASE BANK, N.A., NEW YORK BRANCH
AND
▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A.
AND
[*]
[INSERT SWAP PROVIDERS]
AND
SPV MANAGEMENT LIMITED
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation.........................................................3
2. Ninth Issuer's Covenant To Pay.........................................4
3. Security and Declaration of Trust......................................4
4. Release of Ninth Issuer Charged Property...............................6
5. Payments out of the Ninth Issuer Transaction Accounts, Authorised
Investments and Application of Cash Prior to Enforcement...............7
6. Payments out of the Ninth Issuer Bank
Accounts upon Enforcement..............................................9
7. Conflict..............................................................13
8. Modification..........................................................15
9. The Ninth Issuer Security Trustee's Powers............................15
10. Receiver..............................................................19
11. Protection of Third Parties...........................................22
12. Protection of Ninth Issuer Security Trustee and Receiver..............22
13. Expenses and Indemnity................................................23
14. Protection of Security................................................25
15. Crystallisation.......................................................25
16. Power of Attorney, etc................................................26
17. Other Security, etc...................................................27
18. Avoidance of Payments.................................................28
19. Set Off...............................................................28
20. Execution of Documents................................................29
21. Exercise of Certain Rights............................................29
22. Covenants and Warranties..............................................31
23. Provisions Supplemental to the Trustee Acts...........................34
24. Supplemental Provisions regarding the Ninth Issuer Security
Trustee...............................................................40
25. Remuneration and Indemnification of the Ninth Issuer Security
Trustee...............................................................42
26. Appointment of new Ninth Issuer Security Trustee and Removal of
Ninth Issuer Security Trustee.........................................44
27. Retirement of Ninth Issuer Security Trustee...........................45
28. Trust Indenture Act Prevails..........................................46
29. Notices and Demands...................................................46
30. Further Provisions....................................................48
31. Choice of Law.........................................................49
SCHEDULE
1. Power of Attorney.....................................................51
2. Forms of Notice of Assignment and Consent to Assignment...............53
3.
Signatories..................................................................56
THIS DEED OF CHARGE is made on [*], 2005
BETWEEN:
(1) ▇▇▇▇▇▇ FINANCING (NO. 9) PLC (registered number 5115696) a public
limited company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the NINTH ISSUER);
(2) THE BANK OF NEW YORK, LONDON BRANCH acting through its office at ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as the NINTH
ISSUER SECURITY TRUSTEE which expression shall include such person and
all other persons for the time being acting as the security trustee or
security trustees pursuant to this Deed);
(3) THE BANK OF NEW YORK, LONDON BRANCHacting through its office at ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as the NOTE
TRUSTEE which expression shall include such person and all other persons
for the time being acting as the note trustee or note trustees for the
Noteholders pursuant to the Ninth Issuer Trust Deed);
(4) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch) whose principal office is at Trinity
Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as the
AGENT BANK which expression shall include such person and all other
persons for the time being acting as agent bank for the time being
pursuant to the Ninth Issuer Paying Agent and Agent Bank Agreement);
(5) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch) whose principal office is at Trinity
Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as the
PRINCIPAL PAYING AGENT which expression shall include such person and
all other persons for the time being acting as principal paying agent
pursuant to the Ninth Issuer Paying Agent and Agent Bank Agreement);
(6) ABBEY NATIONAL PLC (registered number 02294747) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (in its capacity as cash manager under the Ninth Issuer Cash
Management Agreement, the NINTH ISSUER CASH MANAGER which expression
shall include such person and all other persons for the time being
acting as cash manager pursuant to the Ninth Issuer Cash Management
Agreement);
(7) ABBEY NATIONAL PLC (registered number 02294747), a public limited
company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ operating through its office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇ (in its capacity as the NINTH ISSUER STERLING ACCOUNT BANK
which expression shall include such person and all other persons for the
time being acting as sterling account bank to the Ninth Issuer pursuant
to the Ninth Issuer Bank Account Agreement);
(8) CITIBANK, N.A., LONDON BRANCH, whose principal office is at Citigroup
Centre, Canada Square, London E14 5LB (in its capacity as the NINTH
ISSUER NON-STERLING ACCOUNT BANK which expression shall include such
person and all other persons for the time being acting as non-sterling
account bank to the Ninth Issuer pursuant to the Ninth Issuer Bank
Account Agreement);
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(9) JPMORGAN CHASE BANK, N.A., NEW YORK BRANCH whose principal office is at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (in its capacity as the US
PAYING AGENT which expression shall include such person and all other
persons for the time being acting as US paying agent pursuant to the
Ninth Issuer Paying Agent and Agent Bank Agreement);
(10) ▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A., acting through its office at ▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg (in its capacity
as the REGISTRAR which expression shall include such person and all
other persons for the time being acting as the registrar or registrars
pursuant to the Ninth Issuer Paying Agent and Agent Bank Agreement);
(11) ▇.▇. ▇▇▇▇▇▇ BANK LUXEMBOURG S.A., acting through its office at ▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, Grand Duchy of Luxembourg (in its capacity
as the TRANSFER AGENT which expression shall include such person and all
other persons for the time being acting as the transfer agent or
transfer agents pursuant to the Ninth Issuer Paying Agent and Agent Bank
Agreement);
(12) [*]whose principal office is at [*] in its capacity as: (1) the Series 1
class A dollar currency swap counterparty under the Series 1 Class A
Dollar Currency Swap Agreement (the SERIES 1 CLASS A DOLLAR CURRENCY
SWAP PROVIDER);
(13) [*] whose principal office is at [*] in its capacity as: (1) the Series
2 class A dollar currency swap counterparty under the Series 2 Class A
Dollar Currency Swap Agreement (the SERIES 2 CLASS A DOLLAR CURRENCY
SWAP PROVIDER);
(14) [*] acting through its office at [*] in its capacity as the Series 3
class A1 euro currency swap counterparty under the Series 3 Class A1
Euro Currency Swap Agreement (the SERIES 3 CLASS A1 EURO CURRENCY SWAP
PROVIDER); and
(15) SPV MANAGEMENT LIMITED (registered number 2548079), whose registered
office is at Tower ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Centre, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as the corporate services provider to the Ninth
Issuer under the Ninth Issuer Corporate Services Agreement (the
CORPORATE SERVICES PROVIDER which expression shall include such person
and all other persons for the time being acting as corporate services
provider to the Ninth Issuer pursuant to the Ninth Issuer Corporate
Services Agreement).
WHEREAS:
(A) This Deed secures and will secure, inter alia, the Ninth Issuer Secured
Obligations.
(B) The Ninth Issuer will on the date of this Deed issue the Ninth Issuer
Notes pursuant to the Ninth Issuer Trust Deed.
(C) By the Ninth Issuer Paying Agent and Agent Bank Agreement, the Paying
Agents, the Registrar, the Transfer Agent and the Agent Bank have agreed
to provide certain agency services on behalf of the Ninth Issuer in
relation to the Ninth Issuer Notes for the benefit of the Noteholders.
(D) By the Ninth Issuer Cash Management Agreement, the Ninth Issuer Cash
Manager has agreed to act as cash manager and to provide certain
administration and cash management services to the Ninth Issuer.
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(E) By the Ninth Issuer Bank Account Agreement, the Ninth Issuer Sterling
Account Bank and the Ninth Issuer Non-Sterling Account Bank have agreed
to provide certain bank account services to the Ninth Issuer.
(F) By the Series 1 Class A Dollar Currency Swap Agreement, the Series 1
Class A Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Ninth Issuer in relation to the
Series 1 Class A Ninth Issuer Notes.
(G) By the Series 2 Class A Dollar Currency Swap Agreement, the Series 2
Class A Dollar Currency Swap Provider has agreed to enter into a
dollar/sterling currency swap with the Ninth Issuer in relation to the
Series 2 Class A Ninth Issuer Notes.
(H)
(I) By the Series 3 Class A1 Euro Currency Swap Agreement, the Series 3
Class A1 Euro Currency Swap Provider has agreed to enter into a
euro/sterling currency swap with the Ninth Issuer in relation to the
Series 3 Class A1 Ninth Issuer Notes.
(J) By the Ninth Issuer Corporate Services Agreement, the Corporate Services
Provider has agreed to act as corporate services provider to the Ninth
Issuer.
IT IS AGREED as follows:
1. INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule
and the Ninth Issuer Master Definitions and Construction Schedule signed
for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇
and May on [*], 2005 (as the same may be amended, varied or supplemented
from time to time with the consent of the parties hereto) are expressly
and specifically incorporated into this Deed and, accordingly, the
expressions defined in the Amended and Restated Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and
Construction Schedule (as so amended, varied or supplemented from time
to time) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Deed,
including the Recitals hereto and this Deed shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule and
Clause 2 of the Ninth Issuer Master Definitions and Construction
Schedule. In the event of a conflict between the Amended and Restated
Master Definitions and Construction Schedule and the Ninth Issuer Master
Definitions and Construction Schedule, the Ninth Issuer Master
Definitions and Construction Schedule shall prevail.
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2. NINTH ISSUER'S COVENANT TO PAY
The Ninth Issuer covenants with and undertakes to the Ninth Issuer
Security Trustee for itself and on trust for the Ninth Issuer Secured
Creditors that it will, subject to the provisions of the Transaction
Documents to which the Ninth Issuer is a party:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable to the Ninth
Issuer Security Trustee (whether for its own account or as
trustee for the Ninth Issuer Secured Creditors) or any of the
other Ninth Issuer Secured Creditors by the Ninth Issuer whether
actually or contingently, under this Deed or any other Ninth
Issuer Transaction Document; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any other Ninth Issuer
Transaction Document.
3. SECURITY AND DECLARATION OF TRUST
3.1 CONTRACTUAL RIGHTS
The Ninth Issuer, by way of first fixed security for the payment or
discharge of the Ninth Issuer Secured Obligations, subject to Clause 4
(Release of Ninth Issuer Charged Property), hereby charges, conveys,
transfers and assigns by way of security to the Ninth Issuer Security
Trustee all of its right, title, interest and benefit, present and
future, in, to and under the Ninth Issuer Transaction Documents
including, without limitation, all rights to receive payment of any
amounts which may become payable to the Ninth Issuer thereunder and all
payments received by the Ninth Issuer thereunder including, without
limitation, all rights to serve notices and/or make demands thereunder
and/or to take such steps as are required to cause payments to become
due and payable thereunder and all rights of action in respect of any
breach thereof and all rights to receive damages or obtain other relief
in respect thereof, TO HOLD the same unto the Ninth Issuer Security
Trustee absolutely.
3.2 NINTH ISSUER ACCOUNTS
The Ninth Issuer, by way of first fixed security for the payment or
discharge of the Ninth Issuer Secured Obligations, subject to Clause 4
(Release of Ninth Issuer Charged Property), hereby charges and assigns
by way of first fixed charge in favour of the Ninth Issuer Security
Trustee all its right, title, interest and benefit, present and future,
in and to all monies now or at any time hereafter standing to the credit
of (i) the Ninth Issuer Accounts, together with all interest accruing
from time to time thereon and the debt represented thereby and (ii) the
Ninth Issuer Collateral Ledger and the debt represented thereby but
excluding any and all interest accruing from time to time thereon TO
HOLD the same unto the Ninth Issuer Security Trustee absolutely.
3.3 AUTHORISED INVESTMENTS
The Ninth Issuer, by way of first fixed security for the payment or
discharge of the Ninth Issuer Secured Obligations, subject to Clause 4
(Release of Ninth Issuer Charged Property), hereby charges by way of
first fixed charge in favour of the Ninth Issuer Security Trustee all
its right, title, interest and benefit, present and future, in and to
such Authorised Investments to be made from time to time by or on behalf
of the Ninth Issuer using monies standing to the credit of the Ninth
Issuer Transaction Accounts and all monies, income and proceeds payable
thereunder or accrued thereon and the benefit of all covenants relating
thereto and all rights
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and remedies for enforcing the same, TO HOLD the same unto the Ninth
Issuer Security Trustee absolutely.
3.4 FLOATING CHARGE
(a) The Ninth Issuer, by way of security for the payment or discharge of the
Ninth Issuer Secured Obligations, subject to Clause 4 (Release of Ninth
Issuer Charged Property), hereby charges to the Ninth Issuer Security
Trustee by way of first floating charge the whole of its undertaking and
all its property and assets whatsoever and wheresoever, present and
future, including without limitation its uncalled capital, other than
any property or assets from time to time or for the time being by
Clauses 3.1 (Contractual Rights) to 3.3 (Authorised Investments)
(inclusive) effectively charged by way of fixed charge or otherwise
effectively assigned as security (but excepting from the foregoing
exclusion the undertaking, property and assets of the Ninth Issuer
situated in or governed by the law of Scotland, all of which are charged
by the floating charge hereby created).
(b) The floating charge created by paragraph (a) above is a qualifying
floating charge for the purpose of paragraph 14 of Schedule B1 of the
Insolvency Act 1986 and accordingly paragraph 14 of Schedule B1 of the
Insolvency Act 1986 is applicable to the floating charge.
3.5 FULL TITLE GUARANTEE
Each of the dispositions of or charges over property effected in or
pursuant to Clauses 3.1 (Contractual Rights) to 3.4 (Floating Charge)
(inclusive) is made with full title guarantee (or in relation to any
rights or assets situated in or governed by the law of Scotland, with
absolute warrandice).
3.6 ACKNOWLEDGEMENTS AND UNDERTAKINGS
Each of the Ninth Issuer Secured Creditors hereby acknowledges the
assignments, charges and other security interests made or granted by the
foregoing provisions of this Clause 3 (Security and Declaration of
Trust) and undertakes to the Ninth Issuer Security Trustee not to do
anything inconsistent with the security given under or pursuant to this
Deed or knowingly to prejudice the security granted to the Ninth Issuer
Security Trustee pursuant to this Clause 3 (Security and Declaration of
Trust) or the Ninth Issuer Charged Property or the Ninth Issuer Security
Trustee's interest therein provided that, without prejudice to Clause 10
(Receiver), nothing herein shall be construed as limiting the rights
exercisable by the aforesaid parties in accordance with the terms of
their respective agreements with the Ninth Issuer.
3.7 DECLARATION OF TRUST
Each of the Ninth Issuer Secured Creditors hereby declares the Ninth
Issuer Security Trustee, and the Ninth Issuer Security Trustee hereby
declares itself, trustee of all the covenants, undertakings, charges,
assignments, assignations and other security interests made or given or
to be made or given under or pursuant to this Deed and the other Ninth
Issuer Transaction Documents for the Ninth Issuer Secured Creditors in
respect of the Ninth Issuer Secured Obligations owed to each of them
respectively upon and subject to the terms and conditions of this Deed.
3.8 NINTH ISSUER SECURITY TRUSTEE'S DISCRETION
Subject to Clause 24.6 (Consent of Ninth Issuer Security Trustee),
without prejudice to the rights of the Ninth Issuer Security Trustee
after the security created under this Deed has become enforceable, the
Ninth Issuer hereby authorises the Ninth Issuer Security Trustee,
5
prior to the security created by this Deed becoming enforceable, to
exercise, or refrain from exercising, all rights, powers, authorities,
discretions and remedies under or in respect of the Ninth Issuer
Transaction Documents referred to in Clause 3.1 (Contractual Rights) in
such manner as in its absolute discretion it shall think fit. For the
avoidance of doubt, the Ninth Issuer Security Trustee shall not be
required to have regard to the interests of the Ninth Issuer in the
exercise or non-exercise of any such rights, powers, authorities,
discretions and remedies or to comply with any direction given by the
Ninth Issuer in relation thereto.
4. RELEASE OF NINTH ISSUER CHARGED PROPERTY
4.1 ON PAYMENT OR DISCHARGE OF NINTH ISSUER SECURED OBLIGATIONS
On the irrevocable and unconditional payment or discharge (or any
combination of the foregoing) of all the Ninth Issuer Secured
Obligations, the Ninth Issuer Security Trustee, at the written request
and cost of the Ninth Issuer, shall release, reassign or discharge the
Ninth Issuer Charged Property to, or to the order of, the Ninth Issuer.
4.2 ON DISPOSAL OF AUTHORISED INVESTMENTS
Upon the Ninth Issuer Cash Manager, on behalf of the Ninth Issuer and
the Ninth Issuer Security Trustee, making a disposal of an Authorised
Investment charged pursuant to Clause 3.3 (Authorised Investments), the
Ninth Issuer Security Trustee shall, if so requested by and at the sole
cost and expense of the Ninth Issuer, but without being responsible for
any loss, costs, claims or liabilities whatsoever occasioned by so
acting upon such request, release, reassign or discharge from the
encumbrances constituted by this Deed the relevant Authorised
Investment, provided that the proceeds of such disposal are paid into an
account charged by Clause 3.2 (Ninth Issuer Transaction Accounts) in
accordance with Clause 5.5 (Authorised Investments).
4.3 ON WITHDRAWALS FROM NINTH ISSUER BANK ACCOUNT
For the avoidance of doubt, from time to time there shall be deemed to
be released from the encumbrances constituted by this Deed:
(a) all amounts which the Ninth Issuer Cash Manager, on behalf of
the Ninth Issuer and the Ninth Issuer Security Trustee, is
permitted to withdraw from the Ninth Issuer Transaction Accounts
pursuant to Clauses 5.2 (Pre-Enforcement Priorities of Payment)
and 5.3 (Payments under Ninth Issuer Cash Management Agreement);
or
(b) all amounts standing to the credit of the Ninth Issuer
Collateral Ledger which shall be applied:
(i) first, in or towards payment to the relevant Ninth
Issuer Swap Provider any amount standing to the credit
of the Ninth Issuer Collateral Ledger in respect of such
Ninth Issuer Swap Agreement after the deduction of (A)
the applicable termination amount due, if any, or (B)
any amount which the Ninth Issuer is entitled to in
accordance with the terms of any credit support
agreement thereto, in each case, from the relevant Ninth
Issuer Swap Provider to the Ninth Issuer under such
Ninth Issuer Swap Agreement; and
(ii) second, following payment of the amount (if any) in (i)
above, in or towards the premium payable (if any) as a
result of entering into a replacement swap agreement,
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any such release to take effect immediately upon the
relevant withdrawal being made provided that where the
relevant amount is transferred to another bank account
of the Ninth Issuer, it shall thereupon become subject
to the encumbrances constituted by this Deed in respect
of such bank account.
5. PAYMENTS OUT OF THE NINTH ISSUER TRANSACTION ACCOUNTS, AUTHORISED
INVESTMENTS AND APPLICATION OF CASH PRIOR TO ENFORCEMENT
5.1 FOLLOWING SERVICE OF A NINTH ISSUER NOTE ENFORCEMENT NOTICE
No payment, transfer or withdrawal from the Ninth Issuer Transaction
Accounts may be made under this Clause 5 (Payments out of the Ninth
Issuer Transaction Accounts, Authorised Investments and application of
cash prior to enforcement) at any time after a Ninth Issuer Note
Enforcement Notice has been served in respect of the Ninth Issuer.
5.2 PRE-ENFORCEMENT PRIORITIES OF PAYMENT
Notwithstanding the security rights created by or pursuant to Clause 3
(Security and Declaration of Trust), but prior to the security created
by this Deed having become enforceable and the Ninth Issuer Security
Trustee having taken steps to enforce such security, the Ninth Issuer
Cash Manager, on behalf of the Ninth Issuer and the Ninth Issuer
Security Trustee, shall withdraw, or shall instruct the Ninth Issuer
Sterling Account Bank and/or, as appropriate, the Ninth Issuer
Non-Sterling Account Bank or cause the Ninth Issuer Sterling Account
Bank and/or, as appropriate, the Ninth Issuer Non-Sterling Account Bank
to be instructed, to withdraw (unless the intended recipient of the
relevant payment agrees otherwise) monies from the Ninth Issuer
Transaction Accounts (subject to Clause 5.9 (VAT) below) to be applied
in the order of priority on the specified dates (and in each case only
if and to the extent that payments or provisions of a higher order of
priority have been made in full) as set out in Schedule 2 of the Ninth
Issuer Cash Management Agreement (the NINTH ISSUER PRE-ENFORCEMENT
PRIORITY OF PAYMENTS).
5.3 PAYMENTS UNDER THE NINTH ISSUER CASH MANAGEMENT AGREEMENT
Notwithstanding the security rights created by or pursuant to Clause 3
(Security and Declaration of Trust), but prior to the security created
by this Deed having become enforceable and the Ninth Issuer Security
Trustee having taken any steps to enforce such security, the Ninth
Issuer Cash Manager, on behalf of the Ninth Issuer and the Ninth Issuer
Security Trustee, shall withdraw, or shall instruct the Ninth Issuer
Sterling Account Bank and/or, as appropriate, the Ninth Issuer
Non-Sterling Account Bank or cause the Ninth Issuer Sterling Account
Bank and/or, as appropriate, the Ninth Issuer Non-Sterling Account Bank
to be instructed, to withdraw (unless the intended recipient of the
relevant payment agrees otherwise) monies from the Ninth Issuer
Transaction Accounts (but only to the extent that such withdrawal does
not cause the Ninth Issuer Transaction Accounts to become overdrawn) for
application on any Business Day in making any payments due to be made
subject to and in accordance with the Ninth Issuer Cash Management
Agreement.
5.4 INVESTMENTS IN AUTHORISED INVESTMENTS
The Ninth Issuer Security Trustee may request the Ninth Issuer Cash
Manager to, in the names of the Ninth Issuer Security Trustee and the
Ninth Issuer, jointly, invest monies standing from time to time and at
any time standing to the credit of the Ninth Issuer Transaction Accounts
in Authorised Investments in accordance with the following provisions:
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(a) any costs properly and reasonably incurred in making and
changing investments will be reimbursed to the Ninth Issuer Cash
Manager and the Ninth Issuer Security Trustee; and
(b) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the relevant Ninth
Issuer Transaction Account from which the original drawing was
made to make the relevant Authorised Investment.
5.5 AUTHORISED INVESTMENTS
Notwithstanding the security rights created by or pursuant to Clause 3
(Security and Declaration of Trust), Authorised Investments may, on any
Business Day, be sold or redeemed or disposed of or realised or
otherwise deposited subject always to the other provisions hereof
(including without limitation Clause 3.3 (Authorised Investments)).
5.6 MANAGEMENT AND APPLICATION OF FUNDS
The Ninth Issuer shall take or cause to be taken such action as may from
time to time be necessary on its part to ensure that the Ninth Issuer
Transaction Accounts shall from time to time be credited with all
amounts received by the Ninth Issuer and falling within any of the
following categories:
(a) amounts received by the Ninth Issuer from or on behalf of
Funding pursuant to the provisions of the Ninth Issuer
Intercompany Loan Agreement;
(b) interest received on the Ninth Issuer Transaction Accounts;
(c) amounts received by the Ninth Issuer from the Dollar Currency
Swap Providers under the Dollar Currency Swap Agreements (other
than any collateral provided to the Ninth Issuer by the Dollar
Currency Swap Providers, which shall be credited to the relevant
Issuer Collateral Account (except where such collateral may be
applied in accordance with this Deed));
(d) amounts received by the Ninth Issuer from the Euro Currency Swap
Provider under the Euro Currency Swap Agreement (other than any
collateral provided to the Ninth Issuer by the Euro Currency
Swap Provider, which shall be credited to the relevant Issuer
Collateral Account (except where such collateral may be applied
in accordance with this Deed));
(e) income received by the Ninth Issuer in respect of the proceeds
of any Authorised Investments (other than any proceeds from the
Authorised Investments in which collateral provided to the Ninth
Issuer from any Ninth Issuer Swap Provider is invested in, which
shall be credited to the relevant Issuer Collateral Account
(except where such Collateral may be applied in accordance with
this Deed)); and
(f) amounts received by the Ninth Issuer from the Security Trustee
(as security trustee under the Funding Deed of Charge) or a
Receiver following the service of a Ninth Issuer Intercompany
Loan Enforcement Notice.
5.7 ENFORCEMENT PRIOR TO SERVICE OF A NINTH ISSUER NOTE ENFORCEMENT NOTICE
From and including the time when the security created by this Deed has
become enforceable and the Ninth Issuer Security Trustee has taken any
steps to enforce such security (but prior to the service of a Ninth
Issuer Note Enforcement Notice) all monies received or recovered by
8
the Ninth Issuer Security Trustee or a Receiver for the benefit of the
Ninth Issuer Secured Creditors in respect of the Ninth Issuer Secured
Obligations shall be held by it on trust to be applied in accordance
with Clauses 5.2 (Pre-Enforcement Priorities of Payment), 5.3 (Payments
under the Ninth Issuer Cash Management Agreement), 5.4 (Investments in
Authorised Investments), 5.5 (Authorised Investments), 5.6 (Management
and Application of Funds) and 5.8 (Enforcement When Not All Amounts Due
and Payable) but as if:
(a) each of the references in the Ninth Issuer Pre-Enforcement
Priority of Payments to the Ninth Issuer Security Trustee
included a reference to any Receiver appointed by the Ninth
Issuer Security Trustee;
(b) any reference in the Ninth Issuer Pre-Enforcement Priority of
Payments to an amount payable by the Ninth Issuer which is not a
Ninth Issuer Secured Obligation were deleted; and
(c) Clause 5.2 and the Ninth Issuer Pre-Enforcement Priority of
Payments were expressed to be subject to the provisions of
Clause 5.8 (Enforcement When Not All Amounts Due and Payable).
5.8 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Ninth Issuer Security Trustee enforces the Ninth Issuer Security
at a time when either no amounts or not all amounts owing in respect of
the Ninth Issuer Secured Obligations have become due and payable, the
Ninth 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 received or recovered by the Ninth Issuer Security Trustee or
the Receiver for the benefit of the Ninth Issuer Secured Creditors in
respect of the Ninth Issuer Secured Obligations into, and retain such
monies in, an interest bearing account to be held by it as security (a
RETENTION ACCOUNT) and applied by it in accordance with Clause 5.2
(Pre-Enforcement Priorities of Payment) on any subsequent Interest
Payment Dates or, following the service of a Ninth Issuer Note
Enforcement Notice, in accordance with Clause 6 (Payments out of the
Ninth Issuer Bank Accounts upon Enforcement).
5.9 VAT
If any sums which are payable by the Ninth Issuer under Clause 5.2
(Pre-Enforcement Priorities of Payment) or Clause 6 (Payments out of the
Ninth Issuer Bank Accounts upon Enforcement) of this Deed are subject to
VAT, the Ninth Issuer shall make payment of the amount in respect of VAT
to the relevant person in accordance with the order of priorities set
out in those clauses.
6. PAYMENTS OUT OF THE NINTH ISSUER BANK ACCOUNTS UPON ENFORCEMENT
6.1 AFTER A NINTH ISSUER NOTE EVENT OF DEFAULT
From and including the occurrence of a Ninth Issuer Note Event of
Default:
(a) no amount may be withdrawn from the Ninth Issuer Transaction
Accounts and/or the Issuer Collateral Account without the prior
written consent of the Ninth Issuer Security Trustee; and
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(b) if not already crystallised, any charge created by Clause 3
(Security and Declaration of Trust), which is a floating charge,
shall crystallise upon service of a notice from the Ninth Issuer
Security Trustee to the Ninth Issuer.
6.2 PAYMENT OF THE NINTH ISSUER REVENUE RECEIPTS AFTER SERVICE OF A NINTH
ISSUER NOTE ENFORCEMENT NOTICE BUT PRIOR TO THE SERVICE OF A NINTH
ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
From and including the time when the Ninth Issuer Security Trustee has
served a Ninth Issuer Note Enforcement Notice but prior to the service
by the Ninth Issuer Security Trustee of a Ninth Issuer Intercompany Loan
Enforcement Notice, all Ninth Issuer Revenue Receipts received or
recovered by the Ninth Issuer Security Trustee or the Receiver for the
benefit of the Ninth Issuer Secured Creditors in respect of the Ninth
Issuer Secured Obligations shall be held by it on trust to be applied,
subject to Clause 6.5 (Collateral provided to the Ninth Issuer by the
Ninth Issuer Swap Providers pursuant to the Ninth Issuer Swap
Agreements), in accordance with Clauses 5.2 (Pre-Enforcement Priorities
of Payment), 5.3 (Payments under Ninth Issuer Cash Management
Agreement), 5.4 (Investments in Authorised Investments), 5.5 (Authorised
Investments), 5.6 (Management and Application of Funds), and 5.8
(Enforcement When Not All Amounts Due and Payable) but as if:
(a) each of the references in the Ninth Issuer Pre-Enforcement
Revenue Priority of Payments to the Ninth Issuer Security
Trustee included a reference to any Receiver appointed by the
Ninth Issuer Security Trustee;
(b) any reference in the Ninth Issuer Pre-Enforcement Revenue
Priority of Payments to an amount payable by the Ninth Issuer
which is not a Ninth Issuer Secured Obligation were deleted; and
(c) Clause 5.2 (Pre-Enforcement Priorities of Payment) and the Ninth
Issuer Pre-Enforcement Revenue Priority of Payments were
expressed to be subject to the provisions of Clause 5.8
(Enforcement When Not All Amounts Due and Payable).
6.3 PAYMENT OF THE NINTH ISSUER PRINCIPAL RECEIPTS AFTER SERVICE OF A NINTH
ISSUER NOTE ENFORCEMENT NOTICE BUT PRIOR TO THE SERVICE OF A NINTH
ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
From and including the time when the Ninth Issuer Security Trustee has
served a Ninth Issuer Note Enforcement Notice but prior to the service
by the Ninth Issuer Security Trustee of a Ninth Issuer Intercompany Loan
Enforcement Notice, all Ninth Issuer Principal Receipts received or
recovered by the Ninth Issuer Security Trustee or a Receiver for the
benefit of the Ninth Issuer Secured Creditors in respect of the Ninth
Issuer Secured Obligations shall be held by it on trust to be applied on
each Interest Payment Date in the following order of priority (in each
case only if and to the extent that payments or provisions of a higher
order of priority have been made in full):
(a) first, pro rata and pari passu to repay:
(i) the Series 1 Class A Ninth Issuer Notes (after
converting the relevant portion of the Ninth Issuer
Principal Receipts into Dollars at the Dollar Currency
Swap Rate applicable to the Series 1 Class A Ninth
Issuer Notes);
(ii) the Series 2 Class A Ninth Issuer Notes (after
converting the relevant portion of the Ninth Issuer
Principal Receipts into Dollars at the Dollar Currency
Swap Rate applicable to the Series 2 Class A Ninth
Issuer Notes);
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(iii) the Series 3 Class A1 Ninth Issuer Notes (after
converting the relevant portion of the Ninth Issuer
Principal Receipts into Euros at the Euro Currency Swap
Rate applicable to the Series 3 Class A1 Ninth Issuer
Notes);
(iv) the Series 3 Class A2 Ninth Issuer Notes; and
(v) the Series 4 Class A Ninth Issuer Notes.
(v)
6.4 PAYMENT OF NINTH ISSUER REVENUE RECEIPTS AND NINTH ISSUER PRINCIPAL
RECEIPTS AFTER SERVICE OF A NINTH ISSUER NOTE ENFORCEMENT NOTICE AND
SERVICE OF A NINTH ISSUER INTERCOMPANY LOAN ENFORCEMENT NOTICE
All Ninth Issuer Revenue Receipts and Ninth Issuer Principal Receipts
received or recovered by the Ninth Issuer Security Trustee or the
Receiver, after the service of a Ninth Issuer Note Enforcement Notice
and after the service of a Ninth Issuer Intercompany Loan Enforcement
Notice, for the benefit of the Ninth Issuer Secured Creditors in respect
of the Ninth Issuer Secured Obligations, shall be held by it in the
Ninth Issuer Transaction Accounts on trust to be applied:
(a) on each Interest Payment Date; or
(b) in respect of amounts due to the Ninth Issuer Transaction
Account Banks under paragraph (c) below, when due,
subject to Clause 6.5 (▇▇▇▇▇▇▇▇▇▇ provided to the Ninth Issuer by the
Ninth Issuer Swap Providers pursuant to the Ninth Issuer Swap
Agreements), in the following order of priority (and, in each case, only
if and to the extent that payments or provisions of a higher order of
priority have been made in full):
(a) firstly, in no order of priority between them but in proportion
to the respective amounts due, to pay amounts due to:
(i) the Ninth Issuer Security Trustee and any Receiver
appointed by the Ninth Issuer Security Trustee together
with interest and any amounts in respect of VAT on those
amounts and any amounts then due or to become due in the
immediately succeeding Interest Period to the Ninth
Issuer Security Trustee and the Receiver under the
provisions of this Ninth Issuer Deed of Charge;
(ii) the Note Trustee together with interest and any amounts
in respect of VAT on those amounts and any amounts then
due or to become due and payable in the immediately
succeeding Interest Period to the Note Trustee under the
provisions of the Ninth Issuer Trust Deed; and
(iii) the Agent Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amounts in
respect of VAT on those amounts, and any costs, charges,
liabilities and expenses then due or to become due and
payable in the immediately succeeding Interest Period to
them under the provisions of the Ninth Issuer Paying
Agent and Agent Bank Agreement;
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(b) secondly, to pay pro rata and pari passu according to the
respective amounts thereof (together with any amounts in respect
of VAT on those amounts) (i) due and payable to the Ninth Issuer
Cash Manager under the Ninth Issuer Cash Management Agreement
and (ii) amounts due and payable to the Corporate Services
Provider under the Ninth Issuer Corporate Services Agreement and
(iii) amounts due and payable to the Ninth Issuer Account Banks
under the Ninth Issuer Bank Account Agreement;
(c) thirdly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Ninth Issuer to the
Series 1 Class A Dollar Currency Swap Provider pursuant
to the Series 1 Class A Dollar Currency Swap Agreement
(except for any termination payment due and payable by
the Ninth Issuer following a Ninth Issuer Swap Provider
Default by the Series 1 Class A Dollar Currency Swap
Provider or a Ninth Issuer Downgrade Termination
Payment), and from amounts received from the Series 1
Class A Dollar Currency Swap Provider to pay interest
and principal due and payable on the Series 1 Class A
Ninth Issuer Notes;
(ii) those amounts due and payable by the Ninth Issuer to the
Series 2 Class A Dollar Currency Swap Provider pursuant
to the Series 2 Class A Dollar Currency Swap Agreement
(except for any termination payment due and payable by
the Ninth Issuer following a Ninth Issuer Swap Provider
Default by the Series 2 Class A Dollar Currency Swap
Provider or a Ninth Issuer Downgrade Termination
Payment), and from amounts received from the Series 2
Class A Dollar Currency Swap Provider to pay interest
and principal due and payable on the Series 2 Class A
Ninth Issuer Notes;
(iii) those amounts due and payable by the Ninth Issuer to the
Series 3 Class A1 Euro Currency Swap Provider pursuant
to the Series 3 Class A1 Euro Currency Swap Agreement
(except for any termination payment due and payable by
the Ninth Issuer following a Ninth Issuer Swap Provider
Default by the Series 3 Class A1 Euro Currency Swap
Provider or any Downgrade Termination Payment), and from
amounts received from the Series 3 Class A1 Euro
Currency Swap Provider to pay interest and principal due
and payable on the Series 3 Class A1 Ninth Issuer Notes;
(iv) interest and principal due and payable on the Series 3
Class A2 Ninth Issuer Notes;
(v) interest and principal due and payable on the Series 4
Class A Ninth Issuer Notes.
(vi)
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(d) fourthly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any termination payment due to the Series 1 Class A
Dollar Currency Swap Provider, following the occurrence
of a Ninth Issuer Swap Provider Default by the Series 1
Class A Dollar Currency Swap Provider or a Ninth Issuer
Downgrade Termination Payment;
(ii) any termination payment due to the Series 2 Class A
Dollar Currency Swap Provider, following the occurrence
of a Ninth Issuer Swap Provider Default by the Series 2
Class A Dollar Currency Swap Provider or a Ninth Issuer
Downgrade Termination Payment; and
(iii) any termination payment due to the Series 3 Class A1
Euro Currency Swap Provider, following the occurrence of
a Ninth Issuer Swap Provider Default by the Series 3
Class A1 Euro Currency Swap Provider or a Ninth Issuer
Downgrade Termination Payment.
(iv)
(v)
6.5 COLLATERAL PROVIDED TO THE NINTH ISSUER BY THE NINTH ISSUER SWAP
PROVIDERS PURSUANT TO THE NINTH ISSUER SWAP AGREEMENTS
(a) After the service of a Ninth Issuer Note Enforcement Notice, the
aggregate value of all collateral transferred to the Ninth Issuer under
any mark-to-market collateral agreement entered into in connection with
the Ninth Issuer Swap Agreements by a Ninth Issuer Swap Provider (or any
proceeds thereof) will, subject to the deduction of the net amount (if
any) due from the relevant Ninth Issuer Swap Provider to the Ninth
Issuer under such Ninth Issuer Swap Agreement or any other amount due to
the Ninth Issuer under such Ninth Issuer Swap Agreement as a result of
the termination of such Ninth Issuer Swap Agreement, be paid to the
relevant Ninth Issuer Swap Provider in accordance with the terms of the
relevant Ninth Issuer Swap Agreement and, for the avoidance of doubt,
will not be available to the other Ninth Issuer Secured Creditors.
(b) After the service of a Ninth Issuer Note Enforcement Notice, all amounts
standing to the credit of the Ninth Issuer Collateral Ledger after the
payment of surplus amounts, if any, due to the relevant Ninth Issuer
Swap Provider as a result of the application of Clause 6.5(a) may be
applied: (i) by the Ninth Issuer in or towards the premium payable as a
result of entering into a replacement swap agreement; or (ii) by the
Ninth Issuer Security Trustee as Ninth Issuer Revenue Receipts in
accordance with the relevant Ninth Issuer Post-Enforcement Priority of
Payments.
7. CONFLICT
7.1 NINTH ISSUER SECURED CREDITORS
Subject to Clause 7.2 (Noteholders and other Ninth Issuer Secured
Creditors) and except as otherwise expressly provided in this Deed, the
Ninth Issuer Security Trustee shall have regard
13
to the interests of the Ninth Issuer Secured Creditors only as regards
the exercise and performance of all powers, rights, trusts, authorities,
duties and discretions of the Ninth Issuer Security Trustee in respect
of the Ninth Issuer Charged Property, under this Deed or any other Ninth
Issuer Transaction Document to which the Ninth Issuer Security Trustee
is a party or the rights or benefits in respect of which are comprised
in the Ninth Issuer Charged Property (except where specifically provided
otherwise).
7.2 NOTEHOLDERS AND OTHER NINTH ISSUER SECURED CREDITORS
(a) If (in the Ninth Issuer Security Trustee's sole opinion) there is or may
be a conflict of interest between the Class A Ninth Issuer Noteholders
and any other Ninth Issuer Secured Creditor (including the Ninth Issuer
Swap Providers), then, subject to Condition 11 of the Ninth Issuer
Notes, the Ninth Issuer Security Trustee will have regard to the
interests of the Class A Ninth Issuer Noteholders only;
(b) subject to paragraph 7.2(a), above and paragraphs 7.2(c) and 7.2(d), if
(in the Ninth Issuer Security Trustee's sole opinion) there is or may be
a conflict between the respective interests of (i) the Ninth Issuer Swap
Providers and (ii) any of the other Ninth Issuer Secured Creditors,
other than the Ninth Issuer Noteholders, the Ninth Issuer Security
Trustee will have regard to the interests of the Ninth Issuer Swap
Providers;
(c) subject to paragraph (d) if, in the Ninth Issuer Security Trustee's sole
opinion, there is a conflict among the respective interests of the
Dollar Currency Swap Providers and the Euro Currency Swap Provider, then
the Ninth Issuer Security Trustee will have regard to the interests of
the highest ranking swap providers (being the Series 1 Class A Dollar
Currency Swap Provider, the Series 2 Class A Dollar Currency Swap
Provider and the Series 3 Class A1 Euro Currency Swap Provider, ;
(d) if, in the Ninth Issuer Security Trustee's sole opinion, there is a
conflict between the respective interests of the Ninth Issuer Swap
Providers with the equal ranking as set out in paragraph (c), then the
Ninth Issuer Security Trustee will have regard to the interests of the
relevant Ninth Issuer Swap Provider or Ninth Issuer Swap Providers in
respect of the Ninth Issuer Notes with the greatest principal amount
outstanding; and
(e) subject to paragraphs (a) to (d), if (in the Ninth Issuer Security
Trustee's sole opinion) there is or may be a conflict between the
respective interests of any of the Ninth Issuer Secured Creditors, other
than the Ninth Issuer Noteholders and the Ninth Issuer Swap Providers,
the Ninth Issuer Security Trustee will have regard to the interests of
the Ninth Issuer Secured Creditor who ranks highest in the order of
priority of payments set out in Clause 6.4 above.
7.3 ACKNOWLEDGEMENT
Each of the Ninth Issuer Secured Creditors hereby acknowledges and
concurs with the provisions of Clauses 7.1 (Ninth Issuer Secured
Creditors) and 7.2 (Noteholders and other Ninth Issuer Secured
Creditors) and each of them agrees that it shall have no claim against
the Ninth Issuer Security Trustee as a result of the application
thereof.
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8. MODIFICATION
8.1 NINTH ISSUER SWAP PROVIDERS
In the event of a proposed waiver or authorisation of any breach or
proposed breach of any of the provisions of, or modification to, any of
the Transaction Documents in accordance with Clause 24.8 (Modification
to Transaction Documents) or Clause 24.9 (Authorisation or Waiver of
Breach), the Ninth Issuer Security Trustee will use its reasonable
endeavours to determine, within five Business Days of receipt of details
thereof, whether such proposed waiver, authorisation or modification
will, in its opinion acting reasonably, not be materially prejudicial to
the interests of any of the Ninth Issuer Swap Providers.
8.2 REQUEST FOR CONSENT
(a) If the Ninth Issuer Security Trustee determines within the five Business
Day period referred to in Clause 8.1 that the proposed waiver,
authorisation or modification would not in its opinion, be materially
prejudicial to the interests of any of the Ninth Issuer Swap Providers
then the Ninth Issuer Security Trustee shall not be obliged to seek the
consent of the Ninth Issuer Swap Providers thereto, or to take any
further action pursuant to this Clause 8.2 (Request for Consent).
(b) If the Ninth Issuer Security Trustee has not, within such period of five
Business Days, determined that such proposed waiver, authorisation or
modification would not, in its opinion, be materially prejudicial to the
interests of any of the Ninth Issuer Swap Providers, then the Ninth
Issuer Security Trustee shall give, as soon as is practicable, written
notice to the relevant Ninth Issuer Swap Providers (as appropriate),
setting out the relevant details and requesting its or their consent
thereto.
8.3 NOTICE
Each of the Dollar Currency Swap Provider and, the Euro Currency Swap
Provider (as appropriate) shall within ten Business Days of receipt of
the notice referred to in Clause 8.2 (Request for Consent) (the RELEVANT
PERIOD) notify the Ninth Issuer Security Trustee of:
(a) its consent (such consent not to be unreasonably withheld or
delayed) to such proposed waiver, authorisation or modification;
or
(b) subject to paragraph (a), its refusal of such consent and
reasons for refusal (such refusal not to be unreasonably made
and to be considered in the context of the security position of
the Dollar Currency Swap Provider and, the Euro Currency Swap
Provider respectively under this Deed).
Any failure by the relevant Ninth Issuer Swap Providers to notify the
Ninth Issuer Security Trustee as aforesaid within the Relevant Period
shall be deemed to be a consent by the relevant Ninth Issuer Swap
Providers (as applicable) to such proposed waiver, authorisation or
modification.
9. THE NINTH ISSUER SECURITY TRUSTEE'S POWERS
9.1 PRIOR NOTIFICATION
The Ninth Issuer Security Trustee shall, if reasonably practicable, give
prior notification to the Seller of the Ninth Issuer Security Trustee's
intention to enforce the security created by this Deed, however, the
failure of the Ninth Issuer Security Trustee to provide such
15
notification shall not prejudice the ability of the Ninth Issuer
Security Trustee to enforce the security created by this Deed.
9.2 ENFORCEABLE
The security created under this Deed shall become immediately
enforceable and the power of sale and other powers conferred by Section
101 of the Law of Property Act 1925 (the 1925 ACT), as varied or amended
by this Deed, shall be exercisable by the Ninth Issuer Security Trustee
at any time following the occurrence of a Ninth Issuer Note Event of
Default or, if there are no Ninth Issuer Notes outstanding, following a
default in payment on its due date of any other Ninth Issuer Secured
Obligations. Without prejudice to the effectiveness of any service of
the Ninth Issuer Note Enforcement Notice, the Ninth Issuer Security
Trustee shall serve a copy of any Ninth Issuer Note Enforcement Notice
on:
(a) Funding;
(b) each of the Rating Agencies;
(c) the Ninth Issuer Account Banks and the Ninth Issuer Cash
Manager;
(d) the Paying Agents, the Registrar, the Transfer Agent and the
Agent Bank;
(e) the Dollar Currency Swap Providers and the Euro Currency Swap
Provider;
(f) the Corporate Services Provider; and
(g) the Note Trustee.
9.3 AMOUNTS DUE
The Ninth Issuer Secured Obligations shall become due for the purposes
of Section 101 of the 1925 Act and the statutory power of sale and of
appointing a Receiver which are conferred on the Ninth Issuer Security
Trustee under the 1925 Act (as varied or extended by this Deed) only
(and for no other purpose) and all other powers shall be deemed to arise
immediately after execution of this Deed.
9.4 POWER OF SALE
Section 103 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed and the statutory power of sale (as
extended by this Deed) and all other powers shall be exercisable at any
time after the occurrence of a Ninth Issuer Note Event of Default.
9.5 LAW OF PROPERTY ACT 1925
The provisions of the 1925 Act relating to the power of sale and the
other powers conferred by Section 101(1) and (2) are hereby extended in
relation to the Ninth Issuer (as if such extensions were contained
therein) to authorise the Ninth Issuer Security Trustee at its absolute
discretion at any time following the occurrence of a Ninth Issuer Note
Event of Default and subject to the Ninth Issuer Security Trustee being
satisfied as to the indemnification available to it in relation to the
exercise of such powers:
(a) to make demand in the name of the Ninth Issuer Secured Creditors
or in its own right for any monies and liabilities in respect of
the Ninth Issuer Charged Property;
16
(b) to sell the Ninth Issuer's title to or interest in the Ninth
Issuer Charged Property, and to do so for any shares, debentures
or other securities whatsoever, or in consideration of an
agreement to pay all or part of the purchase price at a later
date or dates, or an agreement to make periodical payments,
whether or not the agreement is secured by an Encumbrance or a
guarantee, or for such other consideration whatsoever as the
Ninth Issuer Security Trustee may think fit, and also to grant
any option to purchase, and to effect exchanges of, any of the
Ninth Issuer Charged Property;
(c) with a view to or in connection with the sale of the Ninth
Issuer Charged Property, to carry out any transaction, scheme or
arrangement which the Ninth Issuer Security Trustee may, in its
absolute discretion, consider appropriate;
(d) to insure the Ninth Issuer Charged Property against such risks
and for such amounts as the Ninth Issuer Security Trustee may
consider prudent; and
(e) to do all or any of the things or exercise all or any of the
powers which are mentioned or referred to in Clause 10.6
(Powers) as if each of them was expressly conferred on the Ninth
Issuer Security Trustee by this Deed and which may not be
included in paragraphs (a) to (d).
9.6 DELEGATION TO RECEIVER
In addition and without prejudice to any of its statutory powers, the
Ninth Issuer Security Trustee may at any time by deed delegate to the
Receiver all or any of the extended powers of leasing, surrendering or
accepting surrenders of leases conferred on the Ninth Issuer Security
Trustee by this Deed.
9.7 ADDITIONAL POWERS
The Ninth Issuer Security Trustee shall have the power to insure against
any liabilities or obligations arising:
(a) as a result of the Ninth Issuer Security Trustee acting or
failing to act in a certain way (other than which may arise from
its negligence or wilful default or that of its officers or
employees);
(b) as a result of any act or failure to act by any person or
persons to whom the Ninth Issuer Security Trustee has delegated
any of its trusts, rights, powers, duties, authorities or
discretions, or appointed as its agent (other than which may
arise from such person's negligence or wilful default);
(c) in connection with the Ninth Issuer Charged Property; or
(d) in connection with or arising from the enforcement of the
security created by this Deed.
The Ninth Issuer Security Trustee shall not be under any obligation to
insure in respect of such liabilities and/or obligations or to require
any other person to maintain insurance, but to the extent that it does
so, the Ninth Issuer shall quarterly and on written request pay all
insurance premiums and expenses which the Ninth Issuer Security Trustee
may properly incur in relation to such insurance. If the Ninth Issuer
fails to reimburse the Ninth Issuer Security Trustee, the Ninth Issuer
Security Trustee shall be entitled to be indemnified out of the Ninth
Issuer Charged Property in respect thereof and, in the case of a Ninth
Issuer Note Enforcement Notice having been served, the indemnification
of all such insurance premiums
17
and expenses shall be payable in priority to payments to the Ninth
Issuer Noteholders and all other Ninth Issuer Secured Creditors and
otherwise in accordance with this Deed.
9.8 APPLICATION TO COURT
The Ninth Issuer Security Trustee may at any time after the occurrence
of a Ninth Issuer Note Event of Default apply to the Court for an order
that the powers and trusts of this Deed be exercised or carried into
execution under the direction of the Court and for the appointment of a
Receiver of the Ninth Issuer Charged Property or any part thereof and
for any other order in relation to the execution and administration of
the powers and trusts hereof as the Ninth Issuer Security Trustee shall
deem expedient, and it may assent to or approve any application to the
Court made at the instance of any of the Ninth Issuer Noteholders.
9.9 AUTHORISED INVESTMENTS
Any monies which under the trusts of this Deed ought to or may be
invested by the Ninth Issuer Security Trustee after the occurrence of a
Ninth Issuer Note Event of Default may be invested in the name or under
the control of the Ninth Issuer Security Trustee in any Authorised
Investments and the Ninth Issuer Security Trustee may at any time vary
or transfer any of such Authorised Investments for or into other such
Authorised Investments as the Ninth Issuer Security Trustee at its
absolute discretion may determine, and shall not be responsible (save
where any loss results from the Ninth Issuer Security Trustee's fraud,
wilful default or negligence or that of its officers or employees) for
any loss occasioned by reason of any such investments whether by
depreciation in value or otherwise, provided that such Authorised
Investments were made in accordance with the foregoing provisions.
9.10 DEFICIENCY OR ADDITIONAL PAYMENT
The Ninth Issuer Security Trustee shall have no responsibility
whatsoever to any Ninth Issuer Secured Creditor as regards any
deficiency or additional payment, as the case may be, which might arise
because the Ninth Issuer Security Trustee is subject to any Tax in
respect of the Ninth Issuer Charged Property or any part thereof or any
income therefrom or any proceeds thereof or is required to make any
withholding or deduction from any payment to any Ninth Issuer Secured
Creditor.
9.11 APPLICATION OF FUNDS
If, after the service of a Ninth Issuer Note Enforcement Notice, the
amount of the monies at any time available for payment of principal and
interest in respect of any Ninth Issuer Notes under Clause 6 (Payments
out of Ninth Issuer Bank Accounts upon Enforcement) shall be less than
one-tenth of the Principal Amount Outstanding of all the Ninth Issuer
Notes then outstanding, the Ninth Issuer Security Trustee may, at its
absolute discretion, invest such monies to the extent that it is
permitted to do so under the Financial Services and Markets Act 2000 in
any Authorised Investments and the Ninth Issuer Security Trustee may at
any time vary or transfer any of such Authorised Investments for or into
other such Authorised Investments as the Ninth Issuer Security Trustee
at its absolute discretion may determine; and such investments 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 Ninth Issuer Security Trustee and applicable for the purpose, shall
amount to a sum equal to at least one-tenth of the Principal Amount
Outstanding of all the Ninth Issuer Notes then outstanding and such
accumulations and funds shall then be applied in accordance with Clause
6 (Payments out of the Ninth Issuer Bank Accounts upon Enforcement).
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10. RECEIVER
10.1 APPOINTMENT
(a) Subject to paragraph (b) below at any time following the occurrence of a
Ninth Issuer Note Event of Default, the Ninth Issuer Security Trustee
may, at its absolute discretion, appoint, by writing or by deed, such
person or persons (including an officer or officers of the Ninth Issuer
Security Trustee) as the Ninth Issuer Security Trustee thinks fit, to be
Receiver, of the Ninth Issuer Charged Property of the Ninth Issuer or
any part thereof and, in the case of an appointment of more than one
person, to act together or independently of the other or others.
(b) Notwithstanding any provision of this Deed, the Ninth Issuer Security
Trustee may not appoint a Receiver pursuant to paragraph (a) solely as a
result of obtaining a moratorium (or anything done with a view to
obtaining a moratorium) under the Insolvency Act 2000 except with leave
of the court.
10.2 REMOVAL AND REPLACEMENT
Except as otherwise required by statute, the Ninth Issuer Security
Trustee may by writing or by deed remove a Receiver and appoint another
in its place or to act with a Receiver and the Ninth Issuer Security
Trustee may apply to the court for an order removing an administrative
receiver.
10.3 EXTENT OF APPOINTMENT
The exclusion of any part of the Ninth Issuer Charged Property from the
appointment of the Receiver shall not preclude the Ninth Issuer Security
Trustee from subsequently extending its appointment (or that of the
Receiver replacing it) to that part of the Ninth Issuer Charged Property
or appointing another Receiver over any other part of the Ninth Issuer
Charged Property.
10.4 AGENT OF THE NINTH ISSUER
The Receiver shall be the agent of the Ninth Issuer and the Ninth Issuer
alone shall be responsible for the Receiver's contracts, engagements,
acts, omissions, misconduct, negligence or default and for liabilities
incurred by him and in no circumstances whatsoever shall the Ninth
Issuer Security Trustee be in any way responsible for or incur any
liability in connection with his contracts, engagements, acts,
omissions, misconduct, negligence or default, and if a liquidator of the
Ninth Issuer shall be appointed, the Receiver shall act as principal and
not as agent for the Ninth Issuer Security Trustee. Notwithstanding the
generality of the foregoing, such Receiver shall in the exercise of his
powers, authorities and discretions conform to the regulations (if any)
from time to time made and given in writing by the Ninth Issuer Security
Trustee.
10.5 REMUNERATION
The remuneration of the Receiver shall be fixed by the Ninth Issuer
Security Trustee and may be or include a commission calculated by
reference to the gross amount of all monies received or otherwise and
may include remuneration in connection with claims, actions or
proceedings made or brought against the Receiver by the Ninth Issuer or
any other person or the performance or discharge of any obligation
imposed upon him by statute or otherwise, but subject to Clause 6
(Payments out of the Ninth Issuer Bank Accounts upon Enforcement), such
remuneration shall be payable hereunder by the Ninth Issuer. The amount
of such
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remuneration shall be paid in accordance with the terms and conditions
and in the manner agreed from time to time between the Receiver and the
Ninth Issuer Security Trustee.
10.6 POWERS
The Receiver of the Ninth Issuer, in addition to any powers conferred on
a Receiver by statute or common law, shall have the following powers:
(a) to take possession of, get in and collect the Ninth Issuer
Charged Property (or such part thereof in respect of which it
may be appointed) or any part thereof including income whether
accrued before or after the date of his appointment;
(b) to carry on, manage, concur in or authorise the management of,
or appoint a manager of, the whole or any part of the business
of the Ninth Issuer;
(c) to sell, exchange, license, surrender, release, disclaim,
abandon, return or otherwise dispose of or in any way whatsoever
deal with the Ninth Issuer Charged Property or any interest in
the Ninth Issuer Charged Property or any part thereof for such
consideration (if any) and upon such terms (including by
deferred payment or payment by instalments) as it may think fit
and to concur in any such transaction;
(d) to sell or concur in selling the whole or any part of the Ninth
Issuer's business whether as a going concern or otherwise;
(e) to appoint, engage, dismiss or vary the terms of employment of
any employees, officers, managers, agents and advisers of the
Ninth Issuer upon such terms as to remuneration and otherwise
and for such periods as he may determine;
(f) to insure, protect, maintain, repair, alter, improve, replace,
exploit, add to and develop or concur in so doing, the Ninth
Issuer Charged Property or any part thereof in any manner and
for any purpose whatsoever;
(g) in connection with the exercise or the proposed exercise of any
of its powers or in order to obtain payment of its remuneration
(whether or not it is already payable), to borrow or raise money
from any person without security or on the security of any of
the Ninth Issuer Charged Property and generally in such manner
and on such terms as it may think fit;
(h) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings
concerning the Ninth Issuer Charged Property or any part
thereof;
(i) to transfer all or any of the Ninth Issuer Charged Property
and/or any of the liabilities of the Ninth Issuer to any other
company or body corporate, whether or not formed or acquired for
the purpose and to form a subsidiary or subsidiaries of the
Ninth Issuer;
(j) to call up or require the directors of the Ninth Issuer to call
up all or any portion of the uncalled capital for the time being
of the Ninth Issuer and to enforce payment of any call by action
(in the name of the Ninth Issuer or the Receiver as may be
thought fit);
(k) to redeem, discharge or compromise any Encumbrance from time to
time having priority to or ranking pari passu with this Deed;
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(l) to effect or maintain indemnity insurance and other insurance
(including without limitation the Insurance Policies) and obtain
bonds and performance guarantees;
(m) in connection with the exercise of any of its powers, to execute
or do, or cause or authorise to be executed or done, on behalf
of or in the name of the Ninth Issuer or otherwise, as it may
think fit, all documents, receipts, registrations, acts or
things which it may consider appropriate;
(n) to exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Ninth Issuer
Charged Property or incidental to the ownership of or rights in
or to any of the Ninth Issuer Charged Property and to complete
or effect any transaction entered into by the Ninth Issuer and
complete, disclaim, abandon or modify all or any of the
outstanding contracts or arrangements of the Ninth Issuer
relating to or affecting the Ninth Issuer Charged Property;
(o) to exercise all powers as are described in Schedule 1 to the
Insolvency Act 1986, whether or not the Receiver is an
"administrative receiver" as defined in that Act;
(p) to delegate its powers by way of power of attorney or in any
other manner to any person any right, power or discretion
exercisable by it under this Deed on the terms (including the
power to sub-delegate) and subject to any regulations which such
Receiver may think fit and such Receiver shall not be liable or
responsible in any way to the Ninth Issuer or the Ninth Issuer
Security Trustee for any loss or liability arising from any act,
default, omission or misconduct on the part of any such delegate
or sub-delegate;
(q) generally to carry out, or cause or authorise to be carried out,
any transaction, scheme or arrangement whatsoever, whether
similar or not to any of the foregoing, in relation to the Ninth
Issuer Charged Property which it may consider expedient as
effectually as if he were solely and absolutely entitled to the
Ninth Issuer Charged Property;
(r) in addition:
(i) to do all other acts and things which it may consider
desirable or necessary for realising any Ninth Issuer
Charged Property or incidental or conducive to any of
the rights, powers or discretions conferred on a
Receiver under or by virtue of this Deed; and
(ii) to exercise in relation to any Ninth Issuer Charged
Property all the powers, authorities and things which it
would be capable of exercising if he were the absolute
beneficial owner of the same,
and may use the name of the Ninth Issuer for any of the above
purposes; and
(s) to pay and discharge out of the profits and income of the
relevant Ninth Issuer Charged Property and the monies to be made
by it in carrying on the business of the Ninth Issuer the
expenses incurred in and about the carrying on and management of
the business or in the exercise of any of the powers conferred
by this Clause 10.6 (Powers) or otherwise in respect of such
Ninth Issuer Charged Property and all outgoings which it shall
think fit to pay and to apply the residue of the said profits,
income or monies in the manner provided by Clause 6 (Payments
out of the Ninth Issuer Bank Accounts upon Enforcement) hereof.
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The Ninth Issuer Security Trustee may pay over to the Receiver any
monies constituting part of the Ninth Issuer Charged Property to the
intent that the same may be applied for the purposes referred to in
Clause 6 (Payments out of the Ninth Issuer Bank Accounts upon
Enforcement) by such Receiver and the Ninth Issuer Security Trustee may
from time to time determine what funds the Receiver shall be at liberty
to keep in hand with a view to the performance of his duties as such
Receiver.
11. PROTECTION OF THIRD PARTIES
11.1 ENQUIRY
No purchaser from, or other person dealing with, the Ninth Issuer
Security Trustee or a Receiver shall be concerned to enquire whether any
of the powers exercised or purported to be exercised has arisen or
become exercisable, whether the Ninth Issuer Secured Obligations remain
outstanding or have become payable, whether the Receiver is authorised
to act or as to the propriety or validity of the exercise or purported
exercise of any power; and the title of such a purchaser and the
position of such a person shall not be impeachable by reference to any
of those matters and the protections contained in Sections 104 to 107 of
the 1925 Act shall apply to any person purchasing from or dealing with a
Receiver or the Ninth Issuer Security Trustee.
11.2 RECEIPTS
The receipt of the Ninth Issuer Security Trustee or the Receiver shall
be an absolute and a conclusive discharge to a purchaser and shall
relieve him of any obligation to see to the application of any monies
paid to or by the direction of the Ninth Issuer Security Trustee or the
Receiver.
12. PROTECTION OF NINTH ISSUER SECURITY TRUSTEE
12.1 LIABILITY
Neither the Ninth Issuer Security Trustee nor the Receiver of the Ninth
Issuer shall be liable to the Ninth Issuer in the absence of breach of
the terms of this Deed by them, or wilful default, fraud, negligence or
wilful misconduct on their part or that of their officers, employees or
agents in respect of any loss or damage which arises out of the exercise
or the attempted or purported exercise of or failure to exercise any of
their respective powers.
12.2 POSSESSION
Without prejudice to the generality of Clause 12.3 (Mortgagee in
Possession), entry into possession of the Ninth Issuer Charged Property
of the Ninth Issuer shall not render the Ninth Issuer Security Trustee
or the Receiver of that company liable to account as mortgagee or
creditor in possession. If and whenever the Ninth Issuer Security
Trustee or the Receiver enters into possession of the Ninth Issuer
Charged Property, it shall be entitled at any time to go out of such
possession.
12.3 MORTGAGEE IN POSSESSION
Neither the Ninth Issuer Security Trustee nor the Ninth Issuer Secured
Creditors shall, by reason of any assignment or other security made
under this Deed, be or be deemed to be a mortgagee or creditor in
possession nor shall they take any action (other than, in the case of
the Ninth Issuer Secured Creditors, with the Ninth Issuer Security
Trustee's prior written consent) which would be likely to lead to the
Ninth Issuer Secured Creditors or the Ninth
22
Issuer Security Trustee becoming a mortgagee or creditor in possession
in respect of any property referred to in this Deed. The Ninth Issuer
Security Trustee, in its absolute discretion, may at any time, serve a
written notice on the Ninth Issuer Secured Creditors requiring the Ninth
Issuer Secured Creditors from the date such notice is served to obtain
the Ninth Issuer Security Trustee's prior written consent before taking
any action which would be likely to lead to the Ninth Issuer Secured
Creditors or the Ninth Issuer Security Trustee becoming a mortgagee or
creditor in possession in respect of any property referred to in this
Deed.
13. EXPENSES AND INDEMNITY
13.1 EXPENSES
The Ninth Issuer covenants with and undertakes to the Ninth Issuer
Security Trustee to reimburse or pay to the Ninth Issuer Security
Trustee or the Receiver of the Ninth Issuer (on the basis of a full
indemnity) the amount of all costs (including legal costs), charges and
expenses (including insurance premiums) properly incurred or sustained
by the Ninth Issuer Security Trustee or the Receiver (including, for the
avoidance of doubt, any such costs, charges and expenses arising from
any act or omission of, or proceedings involving, any third person) in
connection with:
(a) the exercise or the attempted exercise, or the consideration of
the exercise by or on behalf of the Ninth Issuer Security
Trustee or the Receiver of any of the powers of the Ninth Issuer
Security Trustee or the Receiver, and the enforcement,
preservation or attempted preservation of this Deed (or any of
the charges contained in or granted pursuant to it) or any of
the Ninth Issuer Charged Property or any other action taken by
or on behalf of the Ninth Issuer Security Trustee or the
Receiver with a view to or in connection with the recovery by
the Ninth Issuer Security Trustee or the Receiver of the Ninth
Issuer Secured Obligations from the Ninth Issuer or any other
person; or
(b) the carrying out of any other act or matter which the Ninth
Issuer Security Trustee or the Receiver may reasonably consider
to be necessary for the preservation, improvement or benefit of
the Ninth Issuer Charged Property.
13.2 INDEMNITY
The Ninth Issuer agrees to indemnify the Ninth Issuer Security Trustee,
any Appointee and the Receiver of the Ninth Issuer, on an after-Tax
basis, from and against all losses, actions, claims, costs (including
legal costs on a full indemnity basis), expenses (including insurance
premiums), demands and liabilities whether in contract, tort, delict or
otherwise now or hereafter properly sustained or incurred by the Ninth
Issuer Security Trustee or the Receiver or by any person for whose
liability, act or omission the Ninth Issuer Security Trustee or the
Receiver may be answerable, in connection with anything done or omitted
to be done under or pursuant to this Deed or any other Transaction
Document to which such entity is a party, or in the exercise or
purported exercise of the powers herein contained, or occasioned by any
breach by the Ninth Issuer of any of its covenants or other obligations
to the Ninth Issuer Security Trustee, or in consequence of any payment
in respect of the Ninth Issuer Secured Obligations (whether made by the
Ninth Issuer or a third person) being declared void or impeached for any
reason whatsoever save where the same arises as the result of the fraud,
negligence or wilful default of the Ninth Issuer Security Trustee or the
Receiver or their respective officers or employees or breach by the
Ninth Issuer Security Trustee or the Receiver or their respective
officers or employees of the terms of this Deed.
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13.3 TAXES
All sums payable by the Ninth Issuer under this Deed are deemed to be
exclusive of any amount in respect of VAT. If, pursuant to any provision
of this Deed, the Ninth Issuer Security Trustee or the Receiver of the
Ninth Issuer makes any taxable or deemed taxable supply to the Ninth
Issuer, then the Ninth Issuer shall pay to the Ninth Issuer Security
Trustee or the Receiver of the Ninth Issuer (as the case may be) (in
addition to the consideration for the supply) an amount equal to the VAT
charged in respect of such taxable or deemed taxable supply against
production of a valid VAT invoice.
If the Ninth Issuer Security Trustee or the Receiver of the Ninth Issuer
shall make any payment for a taxable or deemed taxable supply to it
pursuant to or in connection with this Deed and any such payment shall
bear VAT which is Irrecoverable VAT the Ninth Issuer shall indemnify the
Ninth Issuer Security Trustee or the Receiver of the Ninth Issuer (as
the case may be) on demand for an amount equal to such Irrecoverable VAT
so far as it has not been taken into account in computing the amount of
any payment made by the Ninth Issuer to the Ninth Issuer Security
Trustee or the Receiver of the Ninth Issuer under any other indemnity
contained in this Deed.
13.4 INTEREST
All sums payable by the Ninth Issuer under Clauses 25.3 (Disputes), 25.4
(Expenses) and 25.5 (Indemnity) shall be payable on demand and:
(a) in the case of payments actually made by the Ninth Issuer
Security Trustee prior to the demand, shall carry interest at
the rate per annum which is 1 per cent. per annum higher than
the base rate of the Agent Bank for the time being from the
first Business Day following the date of the same being demanded
to the date of actual payment (provided that such demand shall
be made on a Business Day, otherwise interest shall be payable
from the second Business Day following the date of the demand to
the date of actual payment); and
(b) in all other cases, shall carry interest at such rate from the
date 14 days after the date of the same being demanded or (where
the demand specifies that payment by the Ninth Issuer Security
Trustee will be made on an earlier date provided such earlier
date is a business day) from such earlier date (not being
earlier than the Business Day following the date of such demand)
to the date of actual payment.
Any amounts payable pursuant to Clauses 25.1 (Remuneration) and 25.2
(Additional Remuneration) shall carry interest at the aforesaid rate
from the due date thereof to the date of actual payment.
13.5 STAMP DUTIES
The Ninth Issuer shall, to the extent permitted by applicable United
Kingdom law, pay all stamp duties and other duties or documentary Taxes
of a similar nature, including for the avoidance of doubt any duty
levied under the Stamp Act 1891 as amended and supplemented, (if any)
payable on or arising out of or in consequence of:
(a) the creation of the security constituted by or pursuant to this
Deed; and
(b) the execution and delivery of this Deed and documents executed
pursuant hereto and the other Ninth Issuer Transaction Documents
(except where such obligation to pay such stamp duties and other
duties or documentary Taxes of a similar nature is
24
expressed to be the obligation of any other party to the Ninth
Issuer Transaction Documents).
14. PROTECTION OF SECURITY
The Ninth Issuer further covenants with and undertakes to the Ninth
Issuer Security Trustee from time to time (and, for the purposes
mentioned in paragraph (a) below, notwithstanding that the Ninth Issuer
Security Trustee may not have served a Ninth Issuer Note Enforcement
Notice) upon demand to execute, at the Ninth Issuer's own cost any
document or do any act or thing (other than any amendment hereto) which
the Ninth Issuer Security Trustee may specify:
(a) with a view to registering or perfecting any charge or other
security created or intended to be created by or pursuant to
this Deed (including the perfecting of the conversion of any
floating charge to a fixed charge pursuant to Clause 15.1
(Notice) or 15.2 (Automatic Crystallisation)); or
(b) with a view to facilitating the exercise or the proposed
exercise of any of their powers or the realisation of any of the
Ninth Issuer Charged Property; or
(c) with a view to protecting the encumbrances created by or
pursuant to this Deed,
provided that the Ninth Issuer shall not be obliged to execute any
further documentation or take any other action or steps to the extent
that it would breach a restriction in any such agreement to which it is
party relating to assignment, transferring, charging or sharing of
possession/rights of such benefit.
15. CRYSTALLISATION
15.1 NOTICE
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charge created by this Deed or any other
right the Ninth Issuer Security Trustee may have, the Ninth Issuer
Security Trustee may, at any time, if:
(a) a Potential Ninth Issuer Note Event of Default is subsisting and
has not been waived; or
(b) the Ninth Issuer Security Trustee reasonably believes that the
Ninth Issuer Charged Property or any part thereof is in danger
of being seized or sold under any form of distress or execution
levied or threatened or is otherwise in jeopardy or imperilled
or any circumstance shall occur which in the reasonable opinion
of the Ninth Issuer Security Trustee, imperils or will imperil
the security created by this Deed or the Ninth Issuer takes or
threatens to take any action that would be prejudicial to the
security or would be inconsistent with the security created
hereby,
by notice in writing to the Ninth Issuer declare that the floating
charge hereby created shall be converted into a first specific fixed
charge as to all of the undertaking, property and assets or such of them
as may be specified in the notice, and by way of further assurance, the
Ninth Issuer, at its own expense, shall execute all documents in such
form as the Ninth Issuer Security Trustee shall require and shall
deliver to the Ninth Issuer Security Trustee all conveyances, deeds,
certificates and documents which may be necessary to perfect such first
specific fixed charge.
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15.2 AUTOMATIC CRYSTALLISATION
Subject as set out below, in addition and without prejudice to any other
event resulting in a crystallisation of the floating charge, the
floating charge contained herein shall automatically be converted into a
fixed charge over all property, assets or undertaking of the Ninth
Issuer subject to the floating charge, if and when:
(a) a Ninth Issuer Event of Default occurs;
(b) the Ninth Issuer ceases to carry on all or a substantial part of
its business or ceases to be a going concern or thereafter to do
any of the foregoing;
(c) the Ninth Issuer stops making payments to its creditors or gives
notice to creditors that it intends to stop payment;
(d) the holder of any other Encumbrance in relation to the Ninth
Issuer, whether ranking in priority to or pari passu with or
after the charges contained in this Deed, appoints a Receiver;
or
(e) any floating charge granted by the Ninth Issuer to any other
person (whether permitted by the Ninth Issuer Transaction
Documents or not) crystallises for any reason whatsoever.
The floating charge created by ▇▇▇▇▇▇ 3 of this Deed may not be
converted into a fixed charge solely as a result of the obtaining of a
moratorium (or anything done with a view to obtaining a moratorium)
under the Insolvency Act 2000 except with leave of the court.
15.3 FAILURE OF PETITION FOR ADMINISTRATION OR WINDING-UP
If any petition for the administration or winding-up of the Ninth Issuer
or filing of documents with the court for the administration or service
of a notice of intention to appoint an administrator in relation to the
Ninth Issuer is dismissed or withdrawn or a resolution for winding-up
the Ninth Issuer is not passed by the necessary majority, then without
prejudice to any rights exercisable otherwise than in consequence of the
presentation of such petition or the filing of documents or the service
of a notice or resolution and subject to anything done in the meantime
in pursuance of the powers given by this Deed and subject to the
provisions contained in this Deed as to costs charges and expenses
incurred and payments made, possession of the Ninth Issuer Charged
Property will be restored to the Ninth Issuer, and the Ninth Issuer and
all persons concerned will be remitted to their original rights provided
that the Ninth Issuer Security Trustee is satisfied that its security
position at that time is not materially different to that as at the date
of this Deed.
16. POWER OF ATTORNEY, ETC.
16.1 EXECUTION OF POWER OF ATTORNEY
Immediately upon execution of this Deed, the Ninth Issuer shall execute
and deliver to the Ninth Issuer Security Trustee the power of attorney
in or substantially in the form set out in Schedule 1. For the avoidance
of doubt, the Ninth Issuer Security Trustee confirms that it may only
exercise the powers conferred under the power of attorney in the
circumstances set out in paragraph 1 of the power of attorney.
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16.2 NINTH ISSUER CHARGED PROPERTY ON TRUST
To the extent permitted to do so under the Transaction Documents, for
the purpose of giving effect to this Deed, the Ninth Issuer hereby
declares that, after service of a Ninth Issuer Note Enforcement Notice,
it will hold all of its Ninth Issuer Charged Property (subject to the
right of redemption) upon trust to convey, assign or otherwise deal with
such Ninth Issuer Charged Property in such manner and to such person as
the Ninth Issuer Security Trustee shall direct, and declares that it
shall be lawful for the Ninth Issuer Security Trustee to appoint a new
trustee or trustees of the Ninth Issuer Charged Property in place of the
Ninth Issuer.
17. OTHER SECURITY, ETC.
17.1 NO MERGER
The charges contained in or created pursuant to this Deed are in
addition to, and shall neither be merged in, nor in any way exclude or
prejudice any other Encumbrance, right of recourse, set-off or other
right whatsoever which the Ninth Issuer Security Trustee or any Ninth
Issuer Secured Creditor may now or at any time hereafter hold or have
(or would apart from this Deed or any charge contained or created
pursuant to this Deed hold or have) as regards the Ninth Issuer or any
other person in respect of the Ninth Issuer Secured Obligations, and
neither the Ninth Issuer Security Trustee nor any Ninth Issuer Secured
Creditor shall be under any obligation to take any steps to call in or
to enforce any security for the Ninth Issuer Secured Obligations, and
shall not be liable to the Ninth Issuer for any loss arising from any
omission on the part of the Ninth Issuer Security Trustee or any Ninth
Issuer Secured Creditor to take any such steps or for the manner in
which the Ninth Issuer Security Trustee or any Ninth Issuer Secured
Creditor shall enforce or refrain from enforcing any such security.
17.2 CONSOLIDATION
Section 93 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed.
17.3 RULING OFF
If the Ninth Issuer Security Trustee receives notice of any encumbrance
affecting the Ninth Issuer Charged Property in contravention of the
provisions hereof:
(a) the Ninth Issuer Security Trustee may open a new account in
respect of the Ninth Issuer and, if it does not, it shall
nevertheless be deemed to have done so at the time it received
such notice; and
(b) all payments made by the Ninth Issuer to the Ninth Issuer
Security Trustee after the Ninth Issuer Security Trustee
receives such notice shall be credited or deemed to have been
credited to the new account, and in no circumstances whatsoever
shall operate to reduce the Ninth Issuer Secured Obligations as
at the time the Ninth Issuer Security Trustee received such
notice.
17.4 CHANGE OF NAME, ETC.
This Deed shall remain valid and enforceable notwithstanding any change
in the name, composition or constitution of the Ninth Issuer Security
Trustee or the Ninth Issuer or any amalgamation or consolidation by the
Ninth Issuer Security Trustee or the Ninth Issuer with any other
corporation (whether, in the case of the Ninth Issuer, permitted by the
Ninth Issuer Transaction Documents or not).
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18. AVOIDANCE OF PAYMENTS
18.1 NO RELEASE
No assurance, security or payment which may be avoided or adjusted under
the law, including under any enactment relating to bankruptcy or
insolvency and no release, settlement or discharge given or made by the
Ninth Issuer Security Trustee or any Ninth Issuer Secured Creditor on
the faith of any such assurance, security or payment, shall prejudice or
affect the right of the Ninth Issuer Security Trustee or any Ninth
Issuer Secured Creditor to recover the Ninth Issuer Secured Obligations
from the Ninth Issuer (including any monies which it may be compelled to
pay or refund under the provisions of the Insolvency Act 1986 and any
costs payable by it pursuant to or otherwise incurred in connection
therewith) or to enforce the charges or other security contained in this
Deed to the full extent of the Ninth Issuer Secured Obligations.
18.2 RETENTION OF CHARGES
If the Ninth Issuer Security Trustee shall have reasonable grounds for
believing that the Ninth Issuer may be insolvent or deemed to be
insolvent pursuant to the provisions of the Insolvency Act 1986 (and
production of a solvency certificate of a duly authorised officer of the
Ninth Issuer shall be prima facie evidence of the solvency of
thecompany) at the date of any payment made by the Ninth Issuer to the
Ninth Issuer Security Trustee and that as a result, such payment may be
capable of being avoided or clawed back, the Ninth Issuer Security
Trustee shall be at liberty to retain the charges or other security
contained in or created pursuant to this Deed until the expiry of a
period of one month plus such statutory period within which any
assurance, security, guarantee or payment can be avoided or invalidated
after the payment and discharge in full of all Ninth Issuer Secured
Obligations notwithstanding any release, settlement, discharge or
arrangement which may be given or made by the Ninth Issuer Security
Trustee on, or as a consequence of, such payment or discharge of
liability provided that, if at any time within such period, a petition
shall be presented to a competent court for an order for the winding-up
or the making of an administration order or documents shall be filed
with the court for the appointment of an administrator or formal notice
shall be given of an intention to appoint an administrator in respect of
the Ninth Issuer or the Ninth Issuer shall commence to be wound up or to
go into administration or any analogous proceedings shall be commenced
by or against the Ninth Issuer, the Ninth Issuer Security Trustee shall
be at liberty to continue to retain such security for such further
period as the Ninth Issuer Security Trustee may determine and such
security shall be deemed to continue to have been held as security for
the payment and discharge to the Ninth Issuer Security Trustee of all
Ninth Issuer Secured Obligations.
19. SET OFF
The Ninth Issuer Security Trustee may at any time following the service
of a Ninth Issuer Note Enforcement Notice (without notice and
notwithstanding any settlement of account or other matter whatsoever)
combine or consolidate all or any existing accounts of the Ninth Issuer
whether in its own name or jointly with others and held by it or any
Ninth Issuer Secured Creditor and may set-off or transfer all or any
part of any credit balance or any sum standing to the credit of any such
account (whether or not the same is due to the Ninth Issuer from the
Ninth Issuer Security Trustee or relevant Ninth Issuer Secured Creditor
and whether or not the credit balance and the account in debit or the
Ninth Issuer Secured Obligations are expressed in the same currency in
which case the Ninth Issuer Security Trustee is hereby authorised to
effect any necessary conversions at its prevailing rates of exchange) in
or towards satisfaction of any of the Ninth Issuer Secured Obligations
and may in its absolute
28
discretion estimate the amount of any liability of the Ninth Issuer
which is contingent or unascertained and thereafter set-off such
estimated amount and no amount shall be payable by the Ninth Issuer
Security Trustee to the Ninth Issuer unless and until all Ninth Issuer
Secured Obligations have been ascertained and fully repaid or
discharged.
20. EXECUTION OF DOCUMENTS
Any document required to be executed as a deed by the Ninth Issuer
Security Trustee under or in connection with this Deed shall be validly
executed if executed as a deed by a duly authorised attorney of the
Ninth Issuer Security Trustee.
21. EXERCISE OF CERTAIN RIGHTS
21.1 NO ENFORCEMENT BY NINTH ISSUER SECURED CREDITORS
Each of the Ninth Issuer Secured Creditors (other than the Ninth Issuer
Noteholders, the Note Trustee acting on behalf of the Ninth Issuer
Noteholders and the Ninth Issuer Security Trustee) hereby agrees with
the Ninth Issuer and the Ninth Issuer Security Trustee that:
(a) only the Ninth Issuer Security Trustee may enforce the security
created in favour of the Ninth Issuer Security Trustee by this
Deed in accordance with the provisions hereof; and
(b) it shall not take any steps for the purpose of recovering any of
the Ninth Issuer Secured Obligations (including, without
limitation, by exercising any rights of set off but excluding
any contractual netting provisions contained in the Dollar
Currency Swap Agreements and the Euro Currency Swap Agreement)
or enforcing any rights arising out of the Ninth Issuer
Transaction Documents against the Ninth Issuer or procuring the
winding up, administration (including, for the avoidance of
doubt, the filing of documents with the court or the service of
a notice of intention to appoint an administrator) or
liquidation of the Ninth Issuer in respect of any of its
liabilities whatsoever,
unless a Ninth Issuer Note Enforcement Notice shall have been served or
the Ninth Issuer Security Trustee, having become bound to serve a Ninth
Issuer Note Enforcement Notice, and/or having become bound to take any
steps or proceedings to enforce the said security pursuant to this Deed,
fails to do so within 30 days of becoming so bound and that failure is
continuing (in which case each of such Ninth Issuer Secured Creditors
shall be entitled to take any such steps and proceedings as it shall
deem necessary other than the presentation of a petition for the winding
up of, or for an administration order in respect of, the Ninth Issuer or
the filing of documents with the court or the service of a notice of
intention to appoint an administrator in relation to the Ninth Issuer).
21.2 KNOWLEDGE OF NINTH ISSUER SECURITY TRUSTEE OF A NINTH ISSUER NOTE EVENT
OF DEFAULT
The Ninth Issuer Security Trustee will not be deemed to have knowledge
of the occurrence of a Ninth Issuer Note Event of Default unless the
Ninth Issuer Security Trustee has received written notice from a Ninth
Issuer Secured Creditor stating that a Ninth Issuer Note Event of
Default has occurred and describing that Ninth Issuer Note Event of
Default.
21.3 DISCRETIONARY ENFORCEMENT
Subject to the provisions of this Deed, the Ninth Issuer Security
Trustee may at any time, at its discretion and without notice, take such
proceedings and/or other action as it may think fit
29
against, or in relation to, the Ninth Issuer or any other person to
enforce its obligations under any of the Ninth Issuer Transaction
Documents. Subject to the provisions of this Deed, at any time after the
security created by this Deed has become enforceable, the Ninth Issuer
Security Trustee may, at its discretion and without notice, take such
steps as it may think fit to enforce such security.
21.4 MANDATORY ENFORCEMENT
The Ninth Issuer Security Trustee shall not be bound to take any steps
or to institute any proceedings or to take any other action under or in
connection with any of the Ninth Issuer Transaction Documents
(including, without limitation, enforcing the security constituted by or
pursuant to this Deed) unless (subject to the provisions of Condition 10
of the Ninth Issuer Notes) the Ninth Issuer Security Trustee:
(a) shall have been directed or requested to do so by an
Extraordinary Resolution of the Class A Ninth Issuer
Noteholders, or in writing by the holders of at least 25 per
cent. in aggregate Principal Amount Outstanding of the Class A
Ninth Issuer Notes then outstanding or by any other Ninth Issuer
Secured Creditor PROVIDED THAT:
(i) the Ninth Issuer Security Trustee shall not, and shall
not be bound to, act at the direction or request of any
other Ninth Issuer Secured Creditor as aforesaid unless
so to do would not, in the opinion of the Ninth Issuer
Security Trustee, be materially prejudicial to the
interests of the Class A Ninth Issuer Noteholders or
such action is sanctioned by Extraordinary Resolutions
of the Class A Ninth Issuer Noteholders and each of the
Ninth Issuer Secured Creditors who ranks higher than the
relevant Ninth Issuer Secured Creditor in the order or
priority of payments in Clause 6 (Payments out of the
Ninth Issuer Bank Accounts upon Enforcement) consents to
such action; and
(b) shall have been indemnified to its satisfaction against all
liabilities, actions, proceedings, claims and demands to which
it may thereby render itself liable and all costs, charges,
damages and expenses which it may incur by so doing and the
terms of such indemnity may include the provision of a fighting
fund, non-recourse loan or other similar arrangement.
21.5 DISPOSAL OF NINTH ISSUER CHARGED PROPERTY
Notwithstanding Clause 9 (The Ninth Issuer Security Trustee's Powers),
if the Ninth Issuer Security has become enforceable otherwise than by
reason of a default in payment of any amount due on the Class A Ninth
Issuer Notes, the Ninth Issuer Security Trustee will not be entitled to
dispose of any of the Ninth Issuer Charged Property unless either:
(a) a sufficient amount would be realised to allow discharge in full
of all amounts owing to the Class A Ninth Issuer Noteholders; or
(b) the Ninth Issuer Security Trustee is of the opinion, which shall
be binding on the Ninth Issuer Secured Creditors, reached after
considering at any time and from time to time the advice of any
financial adviser (or such other professional advisers selected
by the Ninth Issuer Security Trustee for the purpose of giving
such advice),
30
that the cash flow prospectively receivable by the Ninth Issuer
will not (or that there is a significant risk that it will not)
be sufficient, having regard to any other relevant actual,
contingent or prospective liabilities of the Ninth Issuer, to
discharge in full in due course all amounts owing to the Class A
Ninth Issuer Noteholders. The fees and expenses of the
aforementioned financial adviser or other professional adviser
selected by the Ninth Issuer Security Trustee shall be paid by
the Ninth Issuer.
22. COVENANTS AND WARRANTIES
22.1 NOTICE OF ASSIGNMENT
Immediately upon the execution of this Deed, the Ninth Issuer shall
deliver a notice of assignment substantially in the form set out in
Schedule 2 (Forms of Notice of Assignment and Consent to Assignment) to
each of the persons named in those notices and shall use all reasonable
endeavours to procure the delivery to the Ninth Issuer Security Trustee
on the date hereof of receipts from the addressees of such notices
substantially in the form attached to the notice.
22.2 WARRANTY
The Ninth Issuer warrants to the Ninth Issuer Security Trustee that it
has taken all necessary steps to enable it to charge or assign as
security the Ninth Issuer Charged Property in accordance with Clause 3
(Security and Declaration of Trust), and that it has taken no action or
steps to prejudice its right, title and interest in and to the Ninth
Issuer Charged Property.
22.3 NEGATIVE COVENANTS
So long as any of the Ninth Issuer Secured Obligations remain
outstanding, the Ninth Issuer shall not, save to the extent permitted by
or provided for in the Transaction Documents or with the prior written
consent of the Ninth Issuer Security Trustee:
(a) create or permit to subsist any mortgage, standard security,
pledge, lien, charge or other security interest whatsoever
(unless arising by operation of law) upon the whole or any part
of its assets (including any uncalled capital) or its
undertaking, present or future;
(b) (i) carry on any business other than as described in the
Prospectus dated[*], 2005 relating to the issue of the
Ninth Issuer Notes and the related activities described
therein; or
(ii) have any subsidiaries or any subsidiary undertakings (as
defined in the Companies Act 1985) or any employees or
premises; or
(iii) change its registered office to an address outside the
United Kingdom and shall maintain its "centre of main
interests" (as that expression is defined in Council
Regulation (EC) No. 1346/2000 of 29th May, 2000) in the
United Kingdom;
(c) transfer, sell, lend, part with or otherwise dispose of, or deal
with, or grant any option or present or future right to acquire
any of its assets or undertaking or any interest, estate, right,
title or benefit therein or thereto or agree or attempt or
purport to do so;
(d) pay any dividend or make any other distribution to its
shareholder or issue any further shares;
31
(e) incur any indebtedness in respect of borrowed money whatsoever
or give any guarantee or indemnity in respect of any
indebtedness or of any obligation of any person;
(f) consolidate or merge with any other person or convey or transfer
its properties or assets substantially as an entirety to any
other person;
(g) permit any of the Ninth Issuer Transaction Documents to which it
is a party to become invalid or ineffective, or the priority of
the Security Interests created thereby to be reduced, or consent
to any variation of, or exercise any powers of consent or waiver
pursuant to the terms of any of the Ninth Issuer Transaction
Documents to which it is a party, or permit any party to any of
the Transaction Documents to which it is a party or any other
person whose obligations form part of the Ninth Issuer Charged
Property to be released from its respective obligations;
(h) have an interest in any bank account other than the Ninth Issuer
Transaction Accounts, unless such account or interest therein is
charged to the Ninth Issuer Security Trustee on terms acceptable
to it;
(i) offer to surrender to any company any amounts which are
available for surrender by way of group relief within Chapter IV
of Part X of ICTA except for full payment at the current
applicable rate of corporation tax applied to the surrendered
amount and payable at the date when corporation tax is due to be
paid by the claimant or would be due in the absence of the
surrender;
(j) do any act or thing the effect of which would be to make the
Ninth Issuer resident in any jurisdiction other than the United
Kingdom;
(k) permit any person other than the Ninth Issuer and the Ninth
Issuer Security Trustee to have any equitable interest in any of
its assets or undertakings or any interest, estate, right, title
or benefit therein;
(l) purchase or otherwise acquire any Note or Notes (including the
Ninth Issuer Notes); or
(m) engage in any activities in the United States (directly or
through agents) or derive any income from United States sources
as determined under United States income tax principles or hold
any property if doing so would cause it to be engaged or deemed
to be engaged in a trade or business within the United States as
determined under United States tax principles.
22.4 POSITIVE COVENANTS
The Ninth Issuer covenants and undertakes with the Ninth Issuer Security
Trustee for the benefit of the Ninth Issuer Secured Creditors as
follows:
(a) at all times to carry on and conduct its affairs in a proper and
efficient manner;
(b) to give to the Ninth Issuer Security Trustee within a reasonable
time after request such information and evidence as it shall
reasonably require and in such form as it shall reasonably
require, including without prejudice to the generality of the
foregoing the procurement by the Ninth Issuer of all such
certificates called for by the Ninth Issuer Security Trustee
pursuant to this Deed or any other Transaction Document for the
purpose of the discharge or exercise of the duties, trusts,
powers,
32
authorities and discretions vested in it under this Deed or any
other Transaction Document to which the Ninth Issuer Security
Trustee is a party or by operation of law;
(c) to cause to be prepared and certified by its auditors in respect
of each Financial Year accounts in such form as will comply with
relevant legal and accounting requirements for the time being;
(d) at all times to keep or procure the keeping of proper books of
account and records and allow the Ninth Issuer Security Trustee
and any person or persons appointed by the Ninth Issuer Security
Trustee to whom the Ninth Issuer shall have no reasonable
objection free access to such books of account and records at
all times during normal business hours upon reasonable notice in
writing provided that such inspection shall only be for the
purposes of carrying out its duties under this Deed and any
information so obtained shall only be used and passed on to any
other person for the purpose of the Ninth Issuer Security
Trustee carrying out its duties under this Deed;
(e) to send to the Ninth Issuer Security Trustee a copy of every
balance sheet, profit and loss account, source and application
of funds statement (if any), report, or other notice, statement,
circular or document issued or given to any holder of securities
(including Noteholders and shareholders in their capacity as
such) or creditors of the Ninth Issuer as soon as reasonably
practicable after issue of the same;
(f) to give notice in writing to the Ninth Issuer Security Trustee
of the occurrence of any Ninth Issuer Note Event of Default,
Potential Ninth Issuer Note Event of Default and/or service of a
Ninth Issuer Note Enforcement Notice (which has not been served
by the Ninth Issuer Security Trustee) (such notice to be
effective by the delivery of a copy of the Ninth Issuer Note
Enforcement Notice to Ninth Issuer Security Trustee) immediately
upon becoming aware thereof and without waiting for the Ninth
Issuer Security Trustee to take any further action;
(g) to give to the Ninth Issuer Security Trustee (i) within seven
days after demand by the Ninth Issuer Security Trustee therefor
and (ii) (without the necessity for any such demand) promptly
after the publication of its audited accounts in respect of each
Financial Year and in any event not later than the date required
by statute to file or publish (whichever is earlier) such
audited accounts after the end of each such Financial Year a
certificate signed by two directors of the Ninth Issuer to the
effect that as at a date not more than seven days before
delivering such certificate (the CERTIFICATION DATE) there did
not exist and had not existed since the certification date of
the previous certificate (or in the case of the first such
certificate the date hereof) any Ninth Issuer Note Event of
Default or any Potential Ninth Issuer Note Event of Default (or
if such then exists or existed specifying the same) and that
during the period from and including the certification date of
the last such certificate (or in the case of the first such
certificate the date hereof) to and including the certification
date of such certificate the Ninth Issuer has complied, to the
best of their knowledge and belief, with all its obligations
contained in this Deed and each of the other Ninth Issuer
Transaction Documents to which it is a party or (if such is not
the case) specifying the respects in which it has not so
complied;
(h) at all times to execute all such further documents and do all
such further acts and things as may in the reasonable opinion of
the Ninth Issuer Security Trustee be necessary at any time or
times to give effect to the terms and conditions of this Deed
and the other Ninth Issuer Transaction Documents;
33
(i) at all times to comply with the obligations and provisions
binding upon it under and pursuant to this Deed and the other
Ninth Issuer Transaction Documents; and
(j) duly and promptly to pay and discharge all Taxes imposed upon it
or its assets unless such Taxes are, in the opinion of the Ninth
Issuer Security Trustee, being contested in good faith by the
Ninth Issuer.
22.5 FORM 395
The Ninth Issuer shall make a filing or shall procure that a filing is
made with the Registrar of Companies of a duly completed Form 395
together with an executed original of this Deed within the applicable
time limit.
23. PROVISIONS SUPPLEMENTAL TO THE TRUSTEE ACTS
23.1 POWERS OF NINTH ISSUER SECURITY TRUSTEE
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Ninth Issuer Security Trustee in relation to the trusts constituted by
this Deed. Where there are any inconsistencies between the Trustee Acts
and the provisions of this Deed, the provisions of this Deed shall, to
the extent allowed by the law, prevail and, in the case of any such
inconsistency with the Trustee Act 2000 the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that
Act. By way of supplement to the Trustee Act 1925 it is expressly
declared as follows:
(a) the Ninth Issuer Security Trustee may in relation to this Deed
or any of the other Ninth Issuer Transaction Documents act on
the opinion or advice of, or a certificate or any information
obtained from, any lawyer, banker, valuer, surveyor, securities
company, broker, auctioneer, accountant or other expert in the
United Kingdom or elsewhere, whether obtained by the Ninth
Issuer Security Trustee or any Receiver and shall not be
responsible for any loss occasioned by so acting;
(b) any such opinion, advice, certificate or information may be sent
or obtained by letter, telegram, telex, facsimile reproduction
or in any other form and the Ninth Issuer Security Trustee shall
not be liable for acting in good faith on any opinion, advice,
certificate or information purporting to be so conveyed although
the same shall contain some error or shall not be authentic;
(c) the Ninth Issuer Security Trustee shall (save as expressly
otherwise provided in this Deed or any of the other Ninth Issuer
Transaction Documents) as regards all rights, powers,
authorities and discretions vested in it by this Deed or any of
the other Transaction Documents, or by operation of law, have
absolute and uncontrolled discretion as to the exercise or
non-exercise thereof;
(d) the Ninth Issuer Security Trustee shall be at liberty to place
this Deed and all deeds and other documents relating to this
Deed with any bank or banking company, or lawyer or firm of
lawyers believed by it to be of good repute, in any part of the
world, and the Ninth Issuer Security Trustee shall not be
responsible for or be required to insure against any loss
incurred in connection with any such deposit and the Ninth
Issuer shall pay all sums required to be paid on account of or
in respect of any such deposit;
(e) the Ninth Issuer Security Trustee may, in the conduct of its
trust business, instead of acting personally, employ and pay an
agent to transact or conduct, or concur in
34
transacting or conducting, any business and to do or concur in
doing all acts required to be done by the Ninth Issuer Security
Trustee (including the receipt and payment of money). The Ninth
Issuer Security Trustee (except where such agent is an affiliate
or associated company of, or otherwise connected with, the Ninth
Issuer Security Trustee) shall not be responsible for any
misconduct on the part of any person appointed by it in good
faith hereunder or be bound to supervise the proceedings or acts
of any such persons;
(f) where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another
it shall (unless otherwise provided by this Deed or required by
law) be converted at such rate or rates in accordance with such
method and as at such date for the determination of such rate of
exchange, as may be specified by the Ninth Issuer Security
Trustee in its absolute discretion but having regard to current
rates of exchange if available and the Ninth Issuer Security
Trustee shall not be liable for any loss occasioned by the said
conversion under this paragraph (f);
(g) subject to Clause 24.6 (Consent of Ninth Issuer Security
Trustee), any consent given by the Ninth Issuer Security Trustee
for the purposes of this Deed or any of the other Transaction
Documents may be given on such terms and subject to such
conditions (if any) as the Ninth Issuer Security Trustee thinks
fit and, notwithstanding anything to the contrary contained in
this Deed or any of the other Ninth Issuer Transaction
Documents, may be given retrospectively;
(h) the Ninth Issuer Security Trustee shall be entitled to rely upon
a certificate, believed by it to be genuine, of the Ninth Issuer
or any other person in respect of every matter and circumstance
for which a certificate is expressly provided for under this
Deed or the other Ninth Issuer Transaction Documents and to call
for and rely upon a certificate of the Ninth Issuer or any other
person reasonably believed by it to be genuine as to any other
fact or matter prima facie within the knowledge of the Ninth
Issuer or such person as sufficient evidence thereof and the
Ninth Issuer Security Trustee shall not be bound in any such
case to call for further evidence or be responsible for any
loss, liability, costs, damages, expenses or inconvenience that
may be caused by it failing to do so;
(i) the Ninth Issuer Security Trustee shall be entitled to rely upon
instructions or directions given to it by the Note Trustee as
being given on behalf of the relevant class of Ninth Issuer
Noteholders and the Ninth Issuer Security Trustee shall not be
bound in any such case to inquire as to the compliance with the
Ninth Issuer Trust Deed or be responsible for any loss,
liability, costs, damages, expenses or inconvenience that may be
caused by it failing to do so;
(j) the Ninth Issuer Security Trustee shall not be responsible for
acting upon any resolution purporting to have been passed at any
meeting of the Class A Ninth Issuer Noteholders in respect
whereof minutes have been made and purporting to have been
signed by the chairman thereof, 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 that for any reason
the resolution was not valid or binding upon the Class A Ninth
Issuer Noteholders;
(k) the Ninth Issuer Security Trustee shall not be liable to the
Ninth Issuer or any other Ninth Issuer Secured Creditor by
reason of having accepted as valid or not having
35
rejected any Definitive Ninth
Issuer Note purporting to be such and subsequently found to be
forged, stolen or not authentic;
(l) the Ninth Issuer Security Trustee may call for and shall be at
liberty to accept and place full reliance on as sufficient
evidence of the facts stated therein a certificate or letter of
confirmation certified as true and accurate and signed on behalf
of DTC, Euroclear, Clearstream, Luxembourg or any depository or
common depository for them or such person as the Ninth Issuer
Security Trustee considers appropriate, or any form of record
made by any of them to the effect that any particular time or
through any particular period any particular person is, was or
will be shown in its records as entitled to a particular number
of Ninth Issuer Notes;
(m) the Ninth Issuer Security Trustee shall, in connection with the
exercise by it of any of its trusts, duties, rights, powers,
authorities and discretions under this Deed and the other Ninth
Issuer Transaction Documents:
(i) where it is required to have regard to the interests of
the Ninth Issuer Noteholders of any class, it shall have
regard to the interests of such Ninth Issuer Noteholders
as a class and, in particular but without prejudice to
the generality of the foregoing, shall not have regard
to, or be in any way liable for, the consequences of any
exercise thereof for individual Ninth Issuer Noteholders
resulting from their being for any purpose domiciled or
resident in, or otherwise connected with, or subject to
the jurisdiction of, any particular territory or any
political sub-division thereof and the Ninth Issuer
Security Trustee shall not be entitled to require, nor
shall any Ninth Issuer Noteholder be entitled to claim,
from the Ninth Issuer, the Ninth Issuer Security Trustee
or any other person any indemnification or payment in
respect of any tax consequence of any such exercise upon
individual Ninth Issuer Noteholders;
(ii) be entitled to assume that such exercise will not be
materially prejudicial to the interests of the Class A
Ninth Issuer Noteholders if each of the Rating Agencies
has confirmed that the then current rating by it of the
Class A Ninth Issuer Notes would not be adversely
affected by such exercise;
(n) the Ninth Issuer Security Trustee shall have no responsibility
for the maintenance of any rating of the Ninth Issuer Notes by
the Rating Agencies or any other person;
(o) the Ninth Issuer Security Trustee shall not be liable for any
error of judgement made in good faith by any officer or employee
of the Ninth Issuer Security Trustee assigned by the Ninth
Issuer Security Trustee to administer its corporate trust
matters unless it shall be proved that the Ninth Issuer Security
Trustee was negligent in ascertaining the pertinent facts;
(p) no provision of this Deed or any other Document shall require
the Ninth Issuer Security Trustee to do anything which may be
illegal or contrary to applicable law or regulation or expend or
risk its own funds or otherwise incur any financial liability in
the performance of any of its duties or in the exercise of any
of its rights or powers or otherwise in connection with this
Deed or any other Ninth Issuer Transaction Document (including,
without limitation, forming any opinion or employing any legal,
financial or other adviser), if it shall believe that repayment
of such funds or adequate indemnity against such risk or
liability is not assured to it;
36
(q) the Ninth Issuer Security Trustee shall not (unless and to the
extent ordered to do so by a court of competent jurisdiction) be
required to disclose to any Ninth Issuer Secured Creditor any
information made available to the Ninth Issuer Security Trustee
by the Ninth Issuer in connection with the trusts of this Deed
or the Ninth Issuer Transaction Documents and no Ninth Issuer
Secured Creditor shall be entitled to take any action to obtain
from the Ninth Issuer Security Trustee any such information; and
(r) any certificate or report of the auditors of the Ninth Issuer or
any other person called for by or provided to, the Ninth Issuer
Security Trustee acting in accordance with its general fiduciary
duties (whether or not addressed to the Ninth Issuer Security
Trustee) in accordance with or for the purposes of this Deed or
the Ninth Issuer Transaction Documents may be relied upon by the
Ninth Issuer Security Trustee as sufficient evidence of the
facts stated therein notwithstanding that such certificate or
report and/or any engagement letter or other document entered
into by the Ninth Issuer Security Trustee in connection
therewith contains a monetary or other limit on the liability of
the auditors of the Ninth Issuer or such other person in respect
thereof.
23.2 REPRESENTATIONS AND WARRANTIES, ETC.
The Ninth Issuer Security Trustee shall not be responsible for any
recitals or statements or warranties or representations of any party
(other than the Ninth Issuer Security Trustee) contained herein or in
any other Transaction Document or any other document entered into in
connection therewith and may assume the accuracy and correctness thereof
and shall not be responsible for the execution, legality, effectiveness,
adequacy, genuineness, validity or enforceability or admissibility in
evidence of any such agreement or other document or any trust or
security thereby constituted or evidenced. The Ninth Issuer Security
Trustee may accept without enquiry, requisition or objection such title
as the Ninth Issuer may have to the Ninth Issuer Charged Property or any
part thereof from time to time and shall not be required to investigate
or make any enquiry into the title of the Ninth Issuer to the Ninth
Issuer Charged Property or any part thereof from time to time whether or
not any default or failure is or was known to the Ninth Issuer Security
Trustee or might be, or might have been, discovered upon examination,
inquiry or investigation and whether or not capable of remedy.
Notwithstanding the generality of the foregoing, each Ninth Issuer
Secured Creditor shall be solely responsible for making its own
independent appraisal of and investigation into the financial condition,
creditworthiness, condition, affairs, status and nature of the Ninth
Issuer, and the Ninth Issuer Security Trustee shall not at any time have
any responsibility for the same and each Ninth Issuer Secured Creditor
shall not rely on the Ninth Issuer Security Trustee in respect thereof.
23.3 PERFECTION
The Ninth Issuer Security Trustee shall not be bound to give notice to
any person of the execution of this Deed nor shall it be liable for any
failure, omission or defect in perfecting the security intended to be
constituted hereby including, without prejudice to the generality of the
foregoing:
(a) failure to obtain any licence, consent or other authority for
the execution of the same;
(b) failure to register the same in accordance with the provisions
of any of the documents of title of the Ninth Issuer to any of
the Ninth Issuer Charged Property; and
(c) failure to effect or procure registration of or otherwise
protect any of the Ninth Issuer Transaction Documents by
registering the same under any registration laws in any
37
territory, or by registering any notice, caution or other entry
prescribed by or pursuant to the provisions of the said laws.
23.4 ENFORCEABILITY, ETC.
The Ninth Issuer Security Trustee shall not be responsible for the
genuineness, validity or effectiveness of any of the Ninth Issuer
Transaction Documents or any other documents entered into in connection
therewith or any other document or any obligations or rights created or
purported to be created thereby or pursuant thereto or any security or
the priority thereof constituted or purported to be constituted by or
pursuant to this Deed or any of the Ninth Issuer Transaction Documents,
nor shall it be responsible or liable to any person because of any
invalidity of any provision of such documents or the unenforceability
thereof, whether arising from statute, law or decision of any court and
(without prejudice to the generality of the foregoing) the Ninth Issuer
Security Trustee shall not have any responsibility for or have any duty
to make any investigation in respect of or in any way be liable
whatsoever for:
(a) the nature, status, creditworthiness or solvency of the Ninth
Issuer;
(b) the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of this Deed or any other Ninth
Issuer Transaction Document comprised within the Ninth Issuer
Charged Property or any other document entered into in
connection therewith;
(c) the registration, filing, protection or perfection of any
security relating to this Deed or the other Transaction
Documents relating to the Ninth Issuer Charged Property or the
priority of the security thereby created whether in respect of
any initial advance or any subsequent advance or any other sums
or liabilities;
(d) the scope or accuracy of any representations, warranties or
statements made by or on behalf of the Ninth Issuer or any other
person or entity who has at any time provided any Ninth Issuer
Transaction Document comprised within the Ninth Issuer Charged
Property or in any document entered into in connection
therewith;
(e) the performance or observance by the Ninth Issuer or any other
person with any provisions of this Deed or any other Ninth
Issuer Transaction Document comprised within the Ninth Issuer
Charged Property 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 default, event of default or
similar event contained therein or any waiver or consent which
has at any time been granted in relation to any of the
foregoing;
(f) the existence, accuracy or sufficiency of any legal or other
opinions, searches, reports, certificates, valuations or
investigations delivered or obtained or required to be delivered
or obtained at any time in connection with the Ninth Issuer
Charged Property;
(g) the title of the Ninth Issuer to any of the Ninth Issuer Charged
Property;
(h) the failure to effect or procure registration of or to give
notice to any person in relation to or otherwise protect the
security created or purported to be created by or pursuant to
this Deed or other documents entered into in connection
herewith;
38
(i) the failure to call for delivery of documents of title to or
require any transfers, assignments, legal mortgages, charges or
other further assurances in relation to any of the assets the
subject matter of any of this Deed or any other document; or
(j) any other matter or thing relating to or in any way connected
with this Deed or the Ninth Issuer Charged Property or any
document entered into in connection therewith whether or not
similar to the foregoing.
23.5 NO SUPERVISION
The Ninth Issuer Security Trustee shall be under no obligation to
monitor or supervise the respective functions of the Ninth Issuer
Account Banks under the Ninth Issuer Bank Account Agreement or the Ninth
Issuer Cash Manager under the Ninth Issuer Cash Management Agreement or
of any other person under or pursuant to any of the other Ninth Issuer
Transaction Documents.
23.6 NO LIABILITY
The Ninth Issuer Security Trustee shall not be liable or responsible for
any loss, cost, damage, expense or inconvenience which may result from
anything done or omitted to be done by it under this Deed or any of the
other Ninth Issuer Transaction Documents.
23.7 CONCLUSIVE AND BINDING DETERMINATIONS
The Ninth Issuer Security Trustee as between itself and the Ninth Issuer
Secured Creditors shall have full power to determine all questions and
doubts arising in relation to any of the provisions of this Deed and the
other Ninth Issuer Transaction Documents and every such determination,
whether made upon a question actually raised or implied in the acts or
proceedings of the Ninth Issuer Security Trustee, shall be conclusive
and shall bind the Ninth Issuer Security Trustee and the Ninth Issuer
Secured Creditors.
23.8 USE OF PROCEEDS
The Ninth Issuer Security Trustee shall not be responsible for the
receipt or application by the Ninth Issuer of the proceeds of the issue
of the Ninth Issuer Notes.
23.9 MATERIAL PREJUDICE
The Ninth Issuer Security Trustee may determine whether or not any
event, matter or thing is, in its opinion, materially prejudicial to the
interests of the Ninth Issuer Secured Creditors and if the Ninth Issuer
Security Trustee shall certify that any such event, matter or thing is,
in its opinion, materially prejudicial, such certificate shall be
conclusive and binding upon the Ninth Issuer Secured Creditors.
23.10 NO INDEMNITY
None of the provisions of this Deed shall, in any case in which the
Ninth Issuer Security Trustee has failed to show the degree of care and
diligence required of it as security trustee of this Deed, having regard
to the provisions of this Deed and any of the other Ninth Issuer
Transaction Documents to which the Ninth Issuer Security Trustee is a
party conferring on the Ninth Issuer Security Trustee any powers,
authorities or discretions, relieve or indemnify the Ninth Issuer
Security Trustee and every Appointee against any liabilities which by
virtue of any rule of law would otherwise attach to it in respect of any
negligence, default, breach of duty or breach of trust of which it may
be guilty in relation to its duties under this Deed.
39
24. SUPPLEMENTAL PROVISIONS REGARDING THE NINTH ISSUER SECURITY TRUSTEE
24.1 ASSUMPTION OF NO DEFAULT
Except as herein otherwise expressly provided, the Ninth Issuer Security
Trustee shall be and is hereby authorised to assume without enquiry, and
it is hereby declared to be the intention of the Ninth Issuer Security
Trustee that it shall assume without enquiry, that the Ninth Issuer and
each of the other parties thereto is duly performing and observing all
the covenants and provisions contained in this Deed and the other Ninth
Issuer Transaction Documents to be performed and observed on their parts
and that no event has occurred which constitutes a Ninth Issuer Note
Event of Default or a Potential Ninth Issuer Note Event of Default or
which would cause a right or remedy to become exercisable, whether by
Funding, the Ninth Issuer or the Ninth Issuer Security Trustee, under or
in respect of any of the Ninth Issuer Transaction Documents.
24.2 DELEGATION
The Ninth Issuer Security Trustee may, in the execution of all or any of
the trusts, powers, authorities and discretions vested in it by this
Deed or any of the other Ninth Issuer Transaction Documents, act by
responsible officers or a responsible officer for the time being of the
Ninth Issuer Security Trustee. The Ninth Issuer Security Trustee may
also, whenever it thinks expedient in the interests of the Ninth Issuer
Secured Creditors, whether by power of attorney or otherwise, delegate
to any person or persons all or any of the trusts, rights, powers,
duties, authorities and discretions vested in it by this Deed or any of
the other Ninth Issuer Transaction Documents. Any such delegation may be
made upon such terms and conditions and subject to such regulations
(including power to sub-delegate) as the Ninth Issuer Security Trustee
may think fit in the interests of the Ninth Issuer Secured Creditors or
any of them and, provided that the Ninth Issuer Security Trustee shall
have exercised reasonable care in the selection of such delegate and,
where a power to sub-delegate has been given, has obliged the delegate
to exercise reasonable care in the selection of any sub-delegate, the
Ninth Issuer Security Trustee shall not be bound to supervise the
proceedings of, or be responsible for any loss incurred by any
misconduct or default on the part of, such delegate or sub-delegate. The
Ninth Issuer Security Trustee shall give prompt notice to the Ninth
Issuer of the appointment of any delegate as aforesaid and shall procure
that any delegate shall also give prompt notice of the appointment of
any sub-delegate to the Ninth Issuer.
24.3 COMMERCIAL TRANSACTIONS
The Ninth Issuer Security Trustee shall not, and no director, officer or
employee of any corporation being a trustee hereof shall, by reason of
the fiduciary position of the Ninth Issuer Security Trustee, be in any
way precluded from making any contracts or entering into any
transactions in the ordinary course of business with the Ninth Issuer,
Funding or Holdings or any other subsidiary of Holdings or any other
party to the Ninth Issuer Transaction Documents or any other party to
any of the Ninth Issuer Transaction Documents or from accepting the
trusteeship of any stock, shares, debenture stock, debentures or
securities of any such person. Without prejudice to the generality of
the foregoing, it is expressly declared that such contracts and
transactions include any contract or transaction in relation to the
placing, underwriting, purchasing, subscribing for or dealing with or
lending money upon or making payments in respect of any stock, shares,
debenture stock, debentures or other securities of the Ninth Issuer,
Funding or Holdings or any other subsidiary of Holdings or any other
party to the Ninth Issuer Transaction Documents or any contract of
banking or insurance with the
40
Ninth Issuer, Funding or Holdings or any other subsidiary of Holdings or
any other party to the Ninth Issuer Transaction Documents. Neither the
Ninth Issuer Security Trustee nor any such director or officer of the
Ninth Issuer Security Trustee shall be accountable to any of the Ninth
Issuer Secured Creditors or the Ninth Issuer, Funding or Holdings for
any profit, fees, commissions, interest, discounts or share of brokerage
earned, arising or resulting from any such contracts or transactions.
The Ninth Issuer Security Trustee and any such director, officer or
employee shall be at liberty to retain the same for its or his own
benefit.
24.4 ADDITIONAL POWERS
The powers conferred by this Deed upon the Ninth Issuer Security Trustee
shall be in addition to any powers which may from time to time be vested
in it by general law.
24.5 DUTIES AND RESPONSIBILITIES OF NINTH ISSUER SECURITY TRUSTEE
The Ninth Issuer Security Trustee has no duties or responsibilities
except those expressly set out in this Deed or in the Ninth Issuer
Transaction Documents.
24.6 CONSENT OF NINTH ISSUER SECURITY TRUSTEE
If a request is made to the Ninth Issuer Security Trustee by the Ninth
Issuer or any other person to give its consent to any event, matter or
thing, then:
(a) if the Ninth Issuer Transaction Document specifies that the
Ninth Issuer Security Trustee is required to give its consent to
that event, matter or thing if certain specified conditions are
satisfied in relation to that event, matter or thing, then the
Ninth Issuer Security Trustee shall give its consent to that
event, matter or thing upon being satisfied acting reasonably
that those specified conditions have been satisfied; and
(b) in any other case, the Ninth Issuer Security Trustee may give
its consent if to do so would not, in its opinion, be materially
prejudicial to the interests of the Ninth Issuer Secured
Creditors.
24.7 INTERESTS OF NINTH ISSUER SECURED CREDITORS
Where the Ninth Issuer Security Trustee is required to have regard to
the interests of any Ninth Issuer Secured Creditor (other than the
Noteholders), the Ninth Issuer Security Trustee may consult with such
Ninth Issuer Secured Creditor and may rely on the opinion of such Ninth
Issuer Secured Creditor as to whether any act, matter or thing is or is
not in the interests of, or materially prejudicial to the interests of,
such Ninth Issuer Secured Creditor.
24.8 MODIFICATION TO TRANSACTION DOCUMENTS
The Ninth Issuer Security Trustee may from time to time and at any time
without any consent or sanction of the Ninth Issuer Secured Creditors
concur with any person in making or sanctioning any modification:
(a) to any of the Ninth Issuer Transaction Documents which in the
opinion of the Ninth Issuer Security Trustee it may be expedient
to make, provided that (i) the Ninth Issuer Security Trustee is
of the opinion acting reasonably that such modification will not
be materially prejudicial to the interests of the Noteholders;
and (ii) the Ninth Issuer Security Trustee is of the opinion
that such modification will not be materially prejudicial to the
interests of the Dollar Currency Swap Providers or, the Euro
Currency Swap Provider as the case may be, or if it is not of
that opinion in relation
41
to the Dollar Currency Swap Providers or, the Euro Currency Swap
Provider, as the case may be, or the steps required pursuant to
Clause 8 (Modification) have been taken and the Dollar Currency
Swap Providers or, the Euro Currency Swap Provider, as the case
may be, have consented or have been deemed to have consented to
such modification; or
(b) to any of the Ninth Issuer Transaction Documents which in the
Ninth Issuer Security Trustee's opinion is made to correct a
manifest or demonstrable error or is of a formal, minor or
technical nature.
The Ninth Issuer Secured Creditors hereby acknowledge that any proposed
modification made pursuant to paragraph (a) will not be prejudicial to
their respective interests merely because New Notes may be issued which
may rank ahead, pari passu or below with the Ninth Issuer Notes or
because additional secured creditors may accede to the Funding Deed of
Charge who may rank ahead of any of the Ninth Issuer Secured Creditors
in terms of priority of payment thereunder. Any such modification shall
be binding on the Ninth Issuer Secured Creditors and, unless the Ninth
Issuer Security Trustee otherwise agrees, notice thereof shall be given
by the Ninth Issuer Cash Manager to the Ninth Issuer Secured Creditors
as soon as practicable thereafter, provided that for the avoidance of
doubt nothing in this Clause 24.8 shall affect the liability of the
Ninth Issuer Security Trustee to the Ninth Issuer Secured Creditors
under or in connection with paragraph (a) hereof.
24.9 AUTHORISATION OR WAIVER OF BREACH
The Ninth Issuer Security Trustee may, without the consent of the Ninth
Issuer Secured Creditors, without prejudice to its right in respect of
any further or other breach, from time to time and at any time, but only
if and in so far as (i) in its opinion acting reasonably the interests
of the Ninth Issuer Noteholders will not be materially prejudiced
thereby and (ii) in its opinion acting reasonably the interests of the
Ninth Issuer Swap Providers will not be materially prejudiced thereby
or, if it is not of that opinion in relation to the Ninth Issuer Swap
Providers, the steps required pursuant to Clause 8 (Modification) have
been taken and the Ninth Issuer Swap Providers have consented or have
been deemed to have consented to such authorisation or waiver, authorise
or waive, on such terms and conditions (if any) as shall seem expedient
to it, any proposed or actual breach of any of the covenants or
provisions contained in or arising pursuant to any of the Ninth Issuer
Transaction Documents. Any such authorisation or waiver shall be binding
on the Ninth Issuer Secured Creditors and, unless the Ninth Issuer
Security Trustee otherwise agrees, notice thereof shall be given by the
Ninth Issuer Cash Manager to the Ninth Issuer Secured Creditors as soon
as practicable thereafter.
24.10 INCORPORATION BY REFERENCE
The provisions of Schedule 4 to the Ninth Issuer Trust Deed shall be
deemed to be incorporated in this Deed but as if references therein to
the Note Trustee were to the Ninth Issuer Security Trustee.
25. REMUNERATION AND INDEMNIFICATION OF THE NINTH ISSUER SECURITY TRUSTEE
25.1 REMUNERATION
(a) The Ninth Issuer shall (subject as hereinafter provided) pay to the
Ninth Issuer Security Trustee annually a fee of such amount and payable
on such dates as shall from time to time be agreed by the Ninth Issuer
and the Ninth Issuer Security Trustee, provided that if and for so long
as the Note Trustee and the Ninth Issuer Security Trustee are the same
person, no such
42
fee shall be payable under this Deed. All such remuneration shall be
payable in accordance with the Ninth Issuer Pre-Enforcement Revenue
Priority of Payments or, as the case may be, the Ninth Issuer
Post-Enforcement Priority of Payments. Such remuneration shall accrue
from day to day and be payable up to and including the date when all of
the Ninth Issuer Secured Obligations have been paid or discharged and
the Ninth Issuer Security Trustee has released, reassigned and/or
discharged the Ninth Issuer Charged Property as provided in Clause 4.1
(On Payment or Discharge of Ninth Issuer Secured Obligations).
(b) The Ninth Issuer shall in addition pay to the Ninth Issuer Security
Trustee an amount equal to the amount of any VAT chargeable in respect
of its remuneration hereunder subject to the Ninth Issuer Security
Trustee issuing to the Ninth Issuer a proper VAT invoice in respect
thereof.
25.2 ADDITIONAL REMUNERATION
In the event of a Ninth Issuer Note Event of Default or Potential Ninth
Issuer Note Event of Default occurring or in the event of the Ninth
Issuer Security Trustee finding it expedient or necessary or being
required to undertake any duties which the Ninth Issuer Security Trustee
and the Ninth Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Ninth Issuer Security
Trustee under this Deed, the Ninth Issuer shall pay to the Ninth Issuer
Security Trustee such additional remuneration as shall be agreed between
the Ninth Issuer Security Trustee and the Ninth Issuer.
25.3 DISPUTES
In the event of the Ninth Issuer Security Trustee and the Ninth Issuer
failing to agree upon the amount of any remuneration from time to time
pursuant to Clause 25.1 (Remuneration) or to agree in a case to which
Clause 25.2 (Additional Remuneration) above applies, upon whether such
duties are of an exceptional nature or otherwise outside the scope of
the normal duties of the Ninth Issuer Security Trustee hereunder or upon
the amount of such additional remuneration, such matters shall be
determined by a merchant or investment bank (acting as an expert and not
as an arbitrator) selected by the Ninth Issuer Security Trustee and
approved by the Ninth Issuer or, failing such approval, nominated by the
President for the time being of the Law Society of England and Wales,
the expenses being involved in such nomination and the fees of such
merchant or investment bank being payable by the Ninth Issuer, and the
decision of any such merchant or investment bank shall be final and
binding on the Ninth Issuer and the Ninth Issuer Security Trustee.
25.4 EXPENSES
In addition to remuneration hereunder, the Ninth Issuer shall on written
request, pay (on an indemnity basis) all other costs, charges and
expenses which the Ninth Issuer Security Trustee and any Appointee may
properly incur in relation to the negotiation, preparation and execution
of, the exercise of its powers and the performance of its duties under,
and in any other manner in relation to, this Deed, the Ninth Issuer
Security and any of the other Ninth Issuer Transaction Documents to
which the Ninth Issuer Security Trustee is a party including but not
limited to travelling and legal expenses and any stamp, issue,
registration, documentary and other Taxes or duties paid or payable by
the Ninth Issuer Security Trustee in connection with any action taken or
contemplated by or on behalf of the Ninth Issuer Security Trustee for
enforcing, or resolving any doubt concerning, or for any other purpose
in relation to, this Deed or any of the other Ninth Issuer Transaction
Documents.
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25.5 INDEMNITY
Without prejudice to the right of indemnity by law given to trustees,
the Ninth Issuer shall indemnify the Ninth Issuer Security Trustee and
every Appointee, on an after Tax basis, in respect of all proceedings
(including claims and liabilities in respect of taxes other than on its
own overall net income), claims and demands and all costs, charges,
expenses (including, without prejudice to the generality of the
foregoing, legal and travelling expenses), and liabilities to which it
(or any person appointed by it to whom any trust, power, authority or
discretion may be delegated by it in the execution or purported
execution of the trusts, powers, authorities or discretions vested in it
by or pursuant to this Deed and any of the other Ninth Issuer
Transaction Documents to which the Ninth Issuer Security Trustee is a
party) may be or become liable or which may be properly incurred by it
(or any such person as aforesaid) in the execution or purported
execution of any of its trusts, powers, authorities and discretions
hereunder or its functions under any such appointment or in respect of
any other matter or thing done or omitted in any way relating to this
Deed and any of the other Ninth Issuer Transaction Documents to which
the Ninth Issuer Security Trustee is a party, or any such appointment
and the Ninth Issuer Security Trustee shall be entitled to be
indemnified out of the Ninth Issuer Charged Property in respect thereof
save where the same arises as the result of the fraud, negligence or
wilful default of the Ninth Issuer Security Trustee or its officers or
employees. The Ninth Issuer Security Trustee shall not be entitled to be
indemnified twice in respect of the same matter pursuant to this Clause
and the indemnity contained in Clause 13.2 (Indemnity) of this Deed.
25.6 SURVIVAL
Unless otherwise specifically stated in any discharge of this Deed, the
provisions of this Clause 25 (Remuneration and Indemnification of the
Ninth Issuer Security Trustee) shall continue in full force and effect
notwithstanding the release, reassignment or discharge of the Ninth
Issuer Charged Property by the Ninth Issuer Security Trustee as provided
in Clause 4.1 (On Payment or Discharge of Ninth Issuer Secured
Obligations).
26. APPOINTMENT OF NEW NINTH ISSUER SECURITY TRUSTEE AND REMOVAL OF NINTH
ISSUER SECURITY TRUSTEE
26.1 POWER OF NINTH ISSUER
(a) The power of appointing a new Ninth Issuer Security Trustee and removing
the Ninth Issuer Security Trustee or any new Ninth Issuer Security
Trustee shall be vested in the Ninth Issuer, provided that such
appointment or removal must be approved by (i) an Extraordinary
Resolution of the Class A Ninth Issuer Noteholders, and (ii) by each
Ninth Issuer Secured Creditor (such approval not to be reasonably
withheld or delayed). A trust corporation may be appointed sole security
trustee hereof but subject hereto there shall be at least two security
trustees hereof. Any appointment of a new Ninth Issuer Security Trustee
and any retirement or removal of an existing Ninth Issuer Security
Trustee hereof shall as soon as practicable thereafter be notified by
the Ninth Issuer to the Ninth Issuer Secured Creditors.
(b) Any new Ninth Issuer Security Trustee must (i) meet the requirements of
section 26(a)(1) of the US Investment Company Act of 1940; (ii) not be
an affiliate (as defined in Rule 405 of the US Securities Act of 1933,
as amended) of the Ninth Issuer or of any person involved in the
organisation or operation of the Ninth Issuer; (iii) not offer or
provide credit or credit enhancement to the Ninth Issuer; and (iv)
execute an agreement or instrument concerning the Ninth Issuer Notes
containing provisions to the effect set forth in section 26(a)(3) of the
US Investment Company Act of 1940.
44
26.2 POWER OF NINTH ISSUER SECURITY TRUSTEE
Notwithstanding the provisions of Clause 26.1 (Power of Ninth Issuer),
the Ninth Issuer Security Trustee may (as attorney for the Ninth Issuer)
upon giving prior written notice to the Ninth Issuer but without the
consent of the Ninth Issuer or the Ninth Issuer Secured Creditors
appoint any person established or resident in any jurisdiction (whether
a trust corporation or not) to act either as a separate security trustee
or as a co-trustee jointly with the Ninth Issuer Security Trustee:
(a) if the Ninth Issuer Security Trustee considers such appointment
to be in the interests of the Ninth Issuer Secured Creditors (or
any of them);
(b) for the purposes of conforming to any legal requirement,
restrictions or conditions in any jurisdiction in which any
particular act or acts are to be performed or any Ninth Issuer
Charged Property is or is to be located; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of this Deed or any of the
other Ninth Issuer Transaction Documents to which the Ninth
Issuer Security Trustee is a party or obligations arising
pursuant thereto or any of the security constituted by or
pursuant to this Deed.
The Ninth Issuer hereby irrevocably appoints the Ninth Issuer Security
Trustee to be its attorney in its name and on its behalf to execute any
such instrument of appointment. Such a person shall (subject always to
the provisions of this Deed or any of the other Ninth Issuer Transaction
Documents to which the Ninth Issuer Security Trustee is a party) have
such trusts, powers, authorities and discretions (not exceeding those
conferred on the Ninth Issuer Security Trustee by this Deed or any of
the other Ninth Issuer Transaction Documents to which the Ninth Issuer
Security Trustee is a party) and such duties and obligations as shall be
conferred or imposed on it by the instrument of appointment. The Ninth
Issuer Security Trustee shall have power in like manner to remove any
such person. Such proper remuneration as the Ninth Issuer Security
Trustee may pay to any such person, together with any attributable
costs, charges and expenses incurred by it in performing its function as
such separate trustee or co-trustee, shall for the purposes of this Deed
be treated as costs, charges and expenses incurred by the Ninth Issuer
Security Trustee.
26.3 MULTIPLE TRUSTEES
Whenever there shall be more than two security trustees hereof, the
majority of such security trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and discretions vested by this Deed and
any of the other Ninth Issuer Transaction Documents in the Ninth Issuer
Security Trustee generally.
27. RETIREMENT OF NINTH ISSUER SECURITY TRUSTEE
Any security trustee for the time being of this Deed may retire at any
time upon giving not less than three calendar months' prior notice in
writing to the Ninth Issuer without assigning any reason therefor and
without being responsible for any costs resulting from such retirement.
The retirement or removal of any security trustee shall not become
effective unless there remains at least one security trustee hereof
being a trust corporation in office upon such retirement or removal. The
Ninth Issuer covenants that, in the event of a security trustee (being a
sole security trustee or the only trust corporation) giving notice under
this Clause or being removed as referred to in Clause 26.1 (Power of
Ninth Issuer), it shall use its
45
best endeavours to procure a new security trustee of this Deed (being a
trust corporation) to be appointed as soon as reasonably practicable
thereafter.
28. TRUST INDENTURE ACT PREVAILS
If any provision of this Deed limits, qualifies or conflicts with
another provision which is required to be included in this Deed by, and
is not subject to a contractual waiver under, the U.S. Trust Indenture
Act of 1939, as amended, the required provision of that act shall
prevail.
29. NOTICES AND DEMANDS
29.1 SERVICE OF NOTICES
Any notices to be given pursuant to this Deed to any of the parties
hereto shall be sufficiently served if sent to the addresses given in
Clause 29.2 (Address) by prepaid first class post, by hand or facsimile
transmission and shall be deemed to be given (in the case of facsimile
transmission) when despatched, (where delivered by hand) on the day of
delivery if delivered before 17.00 hours on a Business Day or on the
next Business Day if delivered thereafter or on a day which is not a
Business Day or (in the case of first class post) when it would be
received in the ordinary course of the post.
29.2 ADDRESS
The addresses referred to in this Clause 29.2 (Address) are as follows:
(a) in the case of the Ninth Issuer, to ▇▇▇▇▇▇ Financing (No. 9) PLC
at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention
of The Company Secretary with a copy to Abbey House (AAM126),
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
(▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of Securitisation Team,
Consumer Risk;
(b) in the case of the Ninth Issuer Security Trustee, to The Bank of
New York, 48th Floor, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇/6399) for the attention of
Global Structured Finance - Corporate Trust;
(c) in the case of the Note Trustee, to The Bank of New York, ▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (44)
20 7964 6061/6399) for the attention of Global Structured
Finance - Corporate Trust;
(d) in the case of the Agent Bank, to JPMorgan Chase Bank, London
Branch, Trinity Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of the
Manager, Capital Markets Fiduciary Services;
(e) in the case of the Principal Paying Agent, to JPMorgan Chase
Bank, Chaseside ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (facsimile number
(▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of the Manager,
Institutional Trust Services Operation, with a copy to JPMorgan
Chase Bank, London Branch, Trinity Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of the Manager, Structured Finance Administration;
(f) in the case of the Ninth Issuer Cash Manager, to Abbey National
plc at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of The Company Secretary with a copy to Abbey House
(AAM126), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
46
(facsimile number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of
Securitisation Team, Consumer Risk;
(g) in the case of the Ninth Issuer Sterling Account Bank, to Abbey
National plc at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for
the attention of The Company Secretary with copies to (i) Abbey
National plc, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ (facsimile number
(▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Head of Subsidiary
Banking and (ii) Abbey National plc, c/o Abbey House (AAM126),
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
(▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of Securitisation Team,
Consumer Risk;
(h) in the case of the Ninth Issuer Non-Sterling Account Bank, to
Citibank, N.A., London Branch, Citigroup Centre, Canada Square,
London E14 5LB (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(i) in the case of the US Paying Agent, to JPMorgan Chase Bank, New
York Branch, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(facsimile number (▇) ▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of
Structured Finance Administration;
(j) in the case of the Registrar and the Transfer Agent, to ▇.▇.
▇▇▇▇▇▇ Bank Luxembourg S.A., ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ of Luxembourg (facsimile number (▇▇▇) ▇▇▇▇ ▇▇▇▇▇)
for the attention of Manager, Capital Markets Fiduciary
Services;
(k) in the case of the Series 1 Class A Dollar Currency Swap
Provider to [*]) (facsimile number [*]) for the attention of
[*];
(l) in the case of the Series 2 Class A Dollar Currency Swap
Provider to [*] (facsimile number [*]) for the attention of [*];
(m) in the case of the Series 3 Class A1 Euro Currency Swap
Provider, to [*] (facsimile number [*]) for the attention of
[*];
(n) in the case of the Corporate Services Provider, to SPV
Management Limited, Tower 42, International Finance Centre, ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20 7220
7819) for the attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(o) in the case of Fitch, to Fitch Ratings Limited, ▇▇▇▇▇ House, ▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20 7417
6262) for the attention of European Structured Finance;
(p) in the case of Moody's, to ▇▇▇▇▇'▇ Investor Services, ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20
7772 5400) for the attention of [▇▇▇▇ ▇▇▇▇▇▇▇▇▇], Asset Backed
Finance; and
(q) in the case of S&P, to Standard & Poor's, Garden House, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number (44) 20 7826
3598) for the attention of the Structured Finance Surveillance
Group,
47
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this Clause 29.
30. FURTHER PROVISIONS
30.1 EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the charges
contained in this Deed, a statement as to any amount due to any Ninth
Issuer Secured Creditor or of the Ninth Issuer Secured Obligations or
any part thereof or a statement of any amounts which have been notified
to the Ninth Issuer Security Trustee as being amounts due to any Ninth
Issuer Secured Creditor which is certified as being correct by an
officer of the Ninth Issuer Security Trustee or an officer of the
relevant Ninth Issuer Secured Creditor shall, save in the case of
manifest error, be conclusive evidence that such amount is in fact due
and payable.
30.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Ninth Issuer Security Trustee, the Ninth
Issuer Secured Creditors and any Receiver are cumulative, and may be
exercised as often as they consider appropriate and are in addition to
their respective rights under the general law. The respective rights of
the Ninth Issuer Security Trustee, the Ninth Issuer Secured Creditors
and any Receiver in relation to this Deed (whether arising under this
Deed or under the general law) shall not be capable of being waived or
varied otherwise than by express waiver or variation in writing; and, in
particular, any failure to exercise or any delay in exercising any such
rights shall not operate as a variation or waiver of that or any other
such right; any defective or partial exercise of such rights shall not
preclude any other or further exercise of that or any other such right;
and no act or course of conduct or negotiation on their part or on their
behalf shall in any way preclude them from exercising any such right or
constitute a suspension or any variation of any such right.
30.3 INVALIDITY OF ANY PROVISION
If any of the provisions of this Deed become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
30.4 SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Ninth Issuer hereby waives any
provision of law but only to the extent permitted by law which renders
any provision of this Deed prohibited or unenforceable in any respect.
30.5 COUNTERPARTS
This Deed may be executed in any number of counterparts each of which,
when executed and delivered, shall constitute an original, but all the
counterparts shall together constitute but one and the same instrument
Provided, however, that this Deed shall have no force or effect until it
is executed by the last party to execute the same and shall be deemed to
have been executed and delivered in the place where such last party
executed this Deed.
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30.6 NOTEHOLDERS
The Ninth Issuer, the Ninth Issuer Security Trustee, the Registrar, the
Transfer Agent and the Paying Agents may (to the fullest extent
permitted by applicable laws) deem and treat the registered holder of
any Definitive Ninth Issuer Note or Global Ninth Issuer Note as the
absolute owner of such Definitive Ninth Issuer Note or Global Ninth
Issuer Note, as the case may be, for all purposes (whether or not such
Definitive Ninth Issuer Note or Global Ninth Issuer Note shall be
overdue and notwithstanding any notice of ownership or writing thereon
or any notice of previous loss or theft thereof), and the Ninth Issuer,
the Ninth Issuer Security Trustee, the Registrar, the Transfer Agent and
the Paying Agents shall not be affected by any notice to the contrary.
All payments made to the registered holder of any Definitive Ninth
Issuer Note or to the order of the registered holder of any Global Ninth
Issuer Note shall be valid and, to the extent of the sums so paid,
effective to satisfy and discharge the liability for the monies payable
upon such Ninth Issuer Notes.
31. CHOICE OF LAW
31.1 GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with
English law (other than any terms hereof which are particular to the law
of Scotland, which shall be construed in accordance with Scots law).
31.2 SUBMISSION TO JURISDICTION
For the benefit of the Ninth Issuer Noteholders, the Ninth Issuer, the
Note Trustee, the Agent Bank, the Account Bank and the Ninth Issuer
Security Trustee:
(a) all the parties agree that the courts of England are, subject to
paragraphs (b) and (c), to have exclusive jurisdiction to settle
any disputes which may arise in connection with the creation,
validity, effect, interpretation or performance of, or the legal
relationships established by, this Deed (including, without
limitation, claims for set-off or counterclaim) or otherwise
arising in connection with the jurisdiction of the English
courts;
(b) the agreement contained in paragraph (a) is included for the
benefit of the Ninth Issuer Noteholders, the Ninth Issuer, the
Note Trustee, the Agent Bank, the Account Bank and the Ninth
Issuer Security Trustee. Accordingly, notwithstanding the
exclusive agreement in paragraph (a), the Ninth Issuer
Noteholders, the Ninth Issuer, the Note Trustee, the Agent Bank,
the Account Bank and the Ninth Issuer Security Trustee shall
retain the right to bring proceedings in any court which has
jurisdiction otherwise than by virtue of the agreement in this
Clause 31.2;
(c) the US Paying Agent, the Registrar and the Transfer Agent each
irrevocably waives any objections on the ground or venue or
forum non conveniens or any similar ground;
(d) the US Paying Agent, the Registrar and the Transfer Agent each
irrevocably agrees that a judgment or order of any court
referred to in this Clause in connection with this Deed is
conclusive and binding on it and may be enforced against it in
the courts of any other jurisdiction; and
(e) the US Paying Agent, the Registrar and the Transfer Agent each
irrevocably consents to service of process by mail or in any
other manner permitted by the relevant law.
49
31.3 AGENT FOR PROCESS
The US Paying Agent, the Registrar and the Transfer Agent each shall at
all times maintain an agent for service of process of any other
documents in proceedings in England or any proceedings in connection
with this Deed. Such agent shall be the Principal Paying Agent having
its office at Trinity Tower, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (and
by execution of this Deed, the Principal Paying Agent hereby accepts
such appointment). Any writ, judgment or other notice of legal process
shall be sufficiently served on the Ninth Issuer if delivered to such
agent at its address for the time being. The US Paying Agent, the
Registrar and the Transfer Agent each undertakes not to revoke the
authority of the above agent and if, for any reason, the Ninth Issuer
Security Trustee requests the US Paying Agent, the Registrar or the
Transfer Agent to do so, the US Paying Agent, the Registrar and the
Transfer Agent shall promptly appoint another such agent with an address
in England and advise the Note Trustee, the Ninth Issuer Swap Providers,
the Corporate Services Provider and the Ninth Issuer Security Trustee
thereof. If following such a request the US Paying Agent, the Registrar
or the Transfer Agent fails to appoint another agent the Ninth Issuer
Security Trustee shall be entitled to appoint one on their behalf.
The US Paying Agent, the Registrar and the Transfer Agent each agrees
that failure by a process agent to notify the US Paying Agent, the
Registrar or the Transfer Agent of the process will not invalidate the
proceedings concerned.
IN WITNESS WHEREOF the parties hereto have caused this Deed to be duly executed
and delivered as a deed the day and year first before written.
50
SCHEDULE 1
POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [*], 2005 by ▇▇▇▇▇▇ FINANCING (NO. 9) PLC
(registered number 5115696) whose registered office is Abbey National House, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the PRINCIPAL).
WHEREAS:
(1) By virtue of a deed of charge (the NINTH ISSUER DEED OF CHARGE) dated
[*], 2005 between the Principal, the Ninth Issuer Security Trustee, the
Note Trustee, the Agent Bank, the Principal Paying Agent, the Ninth
Issuer Cash Manager, the Ninth Issuer Account Banks, the US Paying
Agent, the Registrar, the Transfer Agent, the Ninth Issuer Swap
Providers and the Corporate Services Provider (each as referred to
therein) provision was made for the execution by the Principal of this
Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where expressed
to the contrary) have the same meanings respectively as the words and
phrases in the Ninth Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH:
1. The Principal hereby irrevocably and by way of security for the
performance of the covenants, conditions, obligations and undertakings
on the part of the Principal contained in the Ninth Issuer Deed of
Charge appoints The Bank of New York and any other person or persons for
the time being the security trustee or security trustees of and under
the Ninth Issuer Deed of Charge (the ATTORNEY) and any Receiver
(including any administrative receiver) and any manager (the RECEIVER)
and/or administrator (the ADMINISTRATOR) appointed from time to time by
the Attorney or on its behalf its true and lawful attorney for and in
the Principal's name or otherwise jointly and severally to do any act
matter or thing which the Attorney, Receiver or Administrator considers
in each case bona fide necessary for the protection or preservation of
the Attorney's interests and rights in and to the Ninth Issuer Charged
Property or which ought to be done under the covenants, undertakings and
provisions contained in the Ninth Issuer Deed of Charge on or at any
time after the service of a Ninth Issuer Note Enforcement Notice or in
any other circumstances where the Attorney has become entitled to take
the steps referred to in Clauses 9.5 to 9.11 (inclusive) of the Ninth
Issuer Deed of Charge including (without limitation) any or all of the
following:
(a) to do every act or thing which the Attorney, Receiver or
Administrator may deem to be necessary, proper or expedient for
fully and effectually vesting, transferring or assigning the
Ninth Issuer Security and/or the Ninth Issuer Charged Property
or any part thereof and/or the Principal's estate, right, title,
benefit and/or interest therein or thereto in or to the Attorney
and its successors in title or other person or persons entitled
to the benefit thereof in the same manner and as fully and
effectually in all respects as the Principal could have done;
and
(b) the power by writing under its hand by an officer of the
Attorney (including every Receiver appointed under the Ninth
Issuer Deed of Charge) from time to time to appoint a substitute
attorney (each a SUBSTITUTE) who shall have power to act on
behalf of the Principal as if that Substitute shall have been
originally appointed Attorney by this Power of Attorney and/or
to revoke any such appointment at any time without assigning any
reason therefor.
51
2. In favour of the Attorney, any Receiver and/or Administrator and/or
Substitute, or a person dealing with any of them and the successors and
assigns of such a person, all acts done and documents executed or signed
by the Attorney, a Receiver, an Administrator or a Substitute in the
purported exercise of any power conferred by this Power of Attorney
shall for all purposes be valid and binding on the Principal and its
successors and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Receiver and/or Administrator and/or Substitute
appointed from time to time by the Attorney and their respective estates
against all actions, proceedings, claims, costs, expenses and
liabilities of every description arising from the exercise, or the
purported exercise, of any of the powers conferred by this Power of
Attorney, save where the same arises as the result of the fraud,
negligence or wilful default of the relevant Indemnified Party or its
officers or employees.
4. The provisions of Clause 3 shall continue in force after the revocation
or termination, howsoever arising, of this Power of Attorney.
5. The laws of England shall apply to this Power of Attorney and the
interpretation thereof and to all acts of the Attorney and each Receiver
and/or Administrator and/or Substitute carried out or purported to be
carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any
Receiver or Administrator or Substitute shall properly and lawfully do
or cause to be done in and concerning the Ninth Issuer Security
Trustee's Ninth Issuer Security and/or the Ninth Issuer Charged
Property.
IN WITNESS whereof this Power of Attorney has been executed and delivered as a
deed by the Principal the day and year first before written.
EXECUTED as a DEED by )
▇▇▇▇▇▇ FINANCING (NO. 9) PLC )
in the presence of: )
Director
Director/Secretary
52
SCHEDULE 2
FORMS OF NOTICE OF ASSIGNMENT AND CONSENT TO ASSIGNMENT
PART 1
FORM OF NOTICE OF ASSIGNMENT
From: ▇▇▇▇▇▇ Financing (No. 9) PLC (the NINTH ISSUER)
The Bank of New York, London Branch (the NINTH ISSUER SECURITY TRUSTEE)
To: [INSERT MANAGERS OF SUBSCRIPTION AGREEMENT AND UNDERWRITERS OF
UNDERWRITING AGREEMENT]
[*], 2005
Dear Sirs,
US$[*]SERIES 1 CLASS A FLOATING RATE NOTES DUE DECEMBER 2006
US$[*]SERIES 2 CLASS A FLOATING RATE NOTES DUE JULY 2013
[EURO][*]SERIES 3 CLASS A1 -FLOATING RATE NOTES DUE JANUARY 2021
[POUND][*]SERIES 3 CLASS A2 FLOATING RATE NOTES DUE APRIL 2010
[POUND][*] SERIES 4 CLASS A FLOATING RATE NOTES DUE JANUARY 2016
We hereby give you notice that by the Ninth Issuer Deed of Charge dated [*],
2005 and made between the Ninth Issuer, the Ninth Issuer Security Trustee and
others, the Ninth Issuer assigned to the Ninth Issuer Security Trustee all of
its right, title, interest and benefit, present and future, in, to and under
the Underwriting Agreement and the Subscription Agreements relating to the
Notes dated, in each case, [*], 2005, made between, inter alios, the Ninth
Issuer and the Managers named therein (the AGREEMENT).
You are authorised and instructed henceforth to deal with the Ninth Issuer
Security Trustee in relation to the Agreement without further reference to us.
This notice is irrevocable. Please acknowledge receipt of this notice to the
Ninth Issuer Security Trustee on the attached Consent to Assignment.
53
Yours faithfully,
................................... .......................................
For and on behalf of For and on behalf of
▇▇▇▇▇▇ FINANCING (NO.9)PLC THE BANK OF NEW YORK,
LONDON BRANCH
PART 2
CONSENT TO ASSIGNMENT
From: [INSERT MANAGERS OF SUBSCRIPTION AGREEMENT AND UNDERWRITERS OF
UNDERWRITING AGREEMENT]
To: The Bank of New York, London Branch (the NINTH ISSUER SECURITY TRUSTEE)
▇▇▇▇▇▇ Financing (No. 9) PLC (the NINTH ISSUER)
[*], 2005
Dear Sirs,
We hereby acknowledge receipt of the notice of assignment dated [*], 2005
relating to the Ninth Issuer Deed of Charge dated [*], 2005 between the Ninth
Issuer, the Ninth Issuer Security Trustee and others as adequate notice of the
assignment described therein.
We agree to deal only with the Ninth Issuer Security Trustee in relation to (as
applicable) the Underwriting Agreement and the Subscription Agreements dated,
in each case, [*], 2005 between the Ninth Issuer and the Underwriters or the
Managers (as applicable) named therein (the AGREEMENT) without any reference to
the Ninth Issuer.
We have not received from any other person any notice of assignment or charge
of or any interest in the Agreement.
This consent to assignment may be executed (manually or by facsimile) in any
number of counterparts and all such counterparts taken together shall be deemed
to constitute one and the same instrument.
Yours faithfully,
...................................... ....................................
INSERT MANAGERS OF SUBSCRIPTION
AGREEMENT AND UNDERWRITERS
OF UNDERWRITING AGREEMENT] [*]
54
....................................... ...................................
For and on behalf of For and on behalf of
[*] [*]
....................................... ...................................
For and on behalf of For and on behalf of
[*] [*]
....................................... ...................................
For and on behalf of For and on behalf of
[*] [*]
55
SIGNATORIES
NINTH ISSUER
EXECUTED as a DEED )
by ▇▇▇▇▇▇ FINANCING (NO. 9) PLC ) Director
acting by two directors/ )
a director and the secretary ) Director/Secretary
NINTH ISSUER SECURITY TRUSTEE AND NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK, )
LONDON BRANCH )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
AGENT BANK AND PRINCIPAL PAYING AGENT
EXECUTED as a DEED by )
JPMORGAN CHASE BANK, N.A., )
LONDON BRANCH )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
56
In its capacities as:
NINTH ISSUER CASH MANAGER AND
NINTH ISSUER STERLING ACCOUNT BANK
SIGNED as a DEED )
by )
an attorney for and on behalf of )
ABBEY NATIONAL PLC )
under a power of attorney dated )
in the presence of: )
Signature of witness:
Name of witness:
Address of witness:
Occupation of witness:..............
NINTH ISSUER NON-STERLING ACCOUNT BANK
EXECUTED as a DEED )
by CITIBANK, N.A., )
LONDON BRANCH )
acting by its attorney )
)
in the presence of: )
Witness:
Name:
Address:
US PAYING AGENT
EXECUTED as a DEED by )
JPMORGAN CHASE BANK, N.A., )
NEW YORK BRANCH acting by its attorney )
)
in the presence of: )
Witness:
Name:
Address:
57
REGISTRAR AND TRANSFER AGENT
EXECUTED as a DEED by )
▇.▇. ▇▇▇▇▇▇ BANK )
LUXEMBOURG S.A. )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SERIES 1 CLASS A DOLLAR CURRENCY SWAP PROVIDER,
EXECUTED as a DEED by )
[*] )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address;
SERIES 2 CLASS A DOLLAR CURRENCY SWAP PROVIDER
EXECUTED as a DEED by )
[*] )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address;
58
SERIES 3 CLASS A1 EURO CURRENCY SWAP PROVIDER
EXECUTED as a DEED by )
[*] )
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
SPV MANAGEMENT LIMITED )
acting by two directors/ )
a director and the secretary )
Director
Director/Secretary
59