Exhibit 4.4.1
EXECUTION COPY
MASTER ISSUER DEED OF CHARGE
17 OCTOBER 2006
BETWEEN
PERMANENT MASTER ISSUER PLC
(THE MASTER ISSUER)
THE BANK OF NEW YORK
(THE MASTER ISSUER SECURITY TRUSTEE)
THE BANK OF NEW YORK
(THE NOTE TRUSTEE)
CITIBANK, N.A.
(THE PRINCIPAL PAYING AGENT, THE REGISTRAR, THE TRANSFER
AGENT AND THE AGENT BANK)
CITIBANK, N.A.
(THE U.S. PAYING AGENT)
DEUTSCHE BANK AG, LONDON BRANCH
(A MASTER ISSUER SWAP PROVIDER)
CREDIT SUISSE INTERNATIONAL
(A MASTER ISSUER SWAP PROVIDER)
BARCLAYS BANK PLC
(A MASTER ISSUER SWAP PROVIDER)
HALIFAX PLC
(THE MASTER ISSUER CASH MANAGER)
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
(THE MASTER ISSUER ACCOUNT BANK)
AND
STRUCTURED FINANCE MANAGEMENT LIMITED
(THE MASTER ISSUER CORPORATE SERVICES PROVIDER)
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
CONTENTS
CLAUSE PAGE
1. Interpretation........................................................2
2. Security Trust........................................................3
3. Creation of Master Issuer Security....................................3
4. Acknowledgements and undertakings.....................................6
5. Restrictions on Exercise of Certain Rights............................7
6. Payments out of the Master Issuer Accounts Prior to Acceleration......9
7. Payments out of the Master Issuer Accounts Upon Acceleration.........11
8. Enforcement by the Master Issuer security trustee....................16
9. Enforcement of Master Issuer Security................................17
10. Receiver.............................................................19
11. Powers of Receiver...................................................21
12. Modification, Authorisation, Waiver, and consent.....................23
13. Additional Provisions Regarding the Master Issuer Security Trustee...26
14. Master Issuer Security Power of Attorney.............................27
15. Further Assurances...................................................27
16. Additional Provisions Relating to the Master Issuer Security.........28
17. Set-off..............................................................29
18. Release..............................................................29
19. Master Issuer Representations........................................30
20. Evidence of Indebtedness.............................................31
21. Rights Cumulative....................................................32
22. Severability.........................................................32
23. Counterparts.........................................................32
24. Notices..............................................................32
25. Language.............................................................35
26. Law and Jurisdiction.................................................35
27. Contracts (Rights of Third Parties) Act 1999.........................36
SCHEDULE
1. Form of Notice of Charge...............................................40
2. Form of Consent to Charge..............................................41
3. Form of Accession Deed.................................................42
4. Form of Master Issuer Security Power of Attorney.......................51
THIS DEED is dated 17 October 2006
(1) PERMANENT MASTER ISSUER PLC, a company incorporated in England and
Wales with limited liability (registered number 5922774), and having
its registered office at ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
MASTER ISSUER);
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
offices at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its
capacity as the MASTER ISSUER SECURITY TRUSTEE, which expression
includes such company and all other persons or companies for the time
being acting as security trustee or security trustees under this Deed);
(3) THE BANK OF NEW YORK, a national association acting through its offices
at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its
capacity as the NOTE TRUSTEE, which expression includes such company
and all other persons or companies for the time being acting as trustee
or trustees for the Noteholders under the Master Issuer Trust Deed);
(4) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting
in its capacity as the PRINCIPAL PAYING AGENT appointed by the Master
Issuer under the Master Issuer Paying Agent and Agent Bank Agreement);
(5) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting
in its capacity as the REGISTRAR appointed by the Master Issuer under
the Master Issuer Paying Agent and Agent Bank Agreement);
(6) CITIBANK N.A., London Branch of Citigroup Centre, Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as the TRANSFER AGENT appointed
by the Master Issuer under the Master Issuer Paying Agent and Agent
Bank Agreement to administer the transfer of Notes);
(7) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting
in its capacity as the AGENT BANK appointed by the Master Issuer under
the Master Issuer Paying Agent and Agent Bank Agreement);
(8) CITIBANK N.A., a national association acting through its offices at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (acting in its
capacity as the U.S. PAYING AGENT appointed by the Master Issuer under
the Master Issuer Paying Agent and Agent Bank Agreement );
(9) DEUTSCHE BANK AG, LONDON BRANCH, a corporation domiciled in Frankfurt
am Main, Germany, operating in the United Kingdom under branch
registration number BR000005, acting through its London branch at
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (acting
in its capacity as a MASTER ISSUER SWAP PROVIDER in respect of the
2006-1 Notes);
(10) CREDIT SUISSE INTERNATIONAL, a private unlimited company incorporated
in England and Wales (registered number 2500199), and acting through
its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its capacity
as a MASTER ISSUER SWAP PROVIDER in respect of the 2006-1 Notes);
(11) BARCLAYS BANK PLC, a public limited company incorporated in England and
Wales with limited liability (registered number 1026167), and acting
through its office at ▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (acting in
its capacity as a MASTER ISSUER SWAP PROVIDER in respect of the 2006-1
Notes);
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(12) HALIFAX PLC, a public limited company incorporated in England and Wales
with limited liability (registered number 02367076), and having its
registered office at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(acting in its capacity as the MASTER ISSUER CASH MANAGER appointed by
the Master Issuer under the Master Issuer Cash Management Agreement);
(13) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a company established
by an Act of the Parliament of Scotland in 1695, and acting through its
offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇ (acting in its
capacity as the MASTER ISSUER ACCOUNT BANK appointed by the Master
Issuer under the Master Issuer Bank Agreement); and
(14) STRUCTURED FINANCE MANAGEMENT LIMITED, a company incorporated in
England and Wales, with limited liability (registered number 3853947),
and having its registered office at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ (acting in its capacity as the MASTER ISSUER CORPORATE SERVICES
PROVIDER appointed by the Master Issuer under the Master Issuer
Corporate Services Agreement).
BACKGROUND:
(A) On or about the date of this Deed, the Master Issuer will issue the
2006-1 Notes and the Master Issuer and the other parties will enter
into the Master Issuer Transaction Documents in order to consummate the
transactions described in the Prospectus.
(B) The Master Issuer has agreed to provide the Master Issuer Security to
secure the Master Issuer Secured Liabilities.
(C) The Master Issuer Security Trustee has agreed to hold the benefit of
the Master Issuer Security on trust for the benefit of the Master
Issuer Secured Creditors subject to the terms and conditions of this
Deed.
(D) It is intended that this document takes effect as a deed
notwithstanding the fact that a party may only execute this document
under hand.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 CONSTRUCTION
(a) The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Deed and dated 17
October 2006 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Deed) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the master definitions and
construction schedule, signed for the purposes of identification by
▇▇▇▇▇ & ▇▇▇▇▇ LLP and Sidley Austin on 17 October 2006 (as the same may
be amended, varied or supplemented from time to time with the consent
of the parties to this Deed) (the MASTER ISSUER MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) are expressly and specifically incorporated into
this Deed and, accordingly, the expressions defined in the Master
Definitions and Construction Schedule and the Master Issuer Master
Definitions and Construction Schedule shall, except where the context
otherwise requires and save where otherwise defined herein, have the
same meanings in this Deed, including the recitals thereto.
In addition,
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2006-1 NOTES means the Notes issued by the Master Issuer on the 2006-1
Closing Date; and 2006-1 CLOSING DATE means 17 October 2006.
(b) This Deed will be construed in accordance with the rules of
construction set out in the Master Issuer Master Definitions and
Construction Schedule.
(c) If there is any conflict between the provisions of the Master
Definitions and Construction Schedule, the Master Issuer Master
Definitions and Construction Schedule and the provisions of this Deed,
the provisions of this Deed will prevail.
(d) The term THIS DEED means this Deed and any deed executed in accordance
with, or expressed to be supplemental to, this Deed.
(e) Any covenant of the Master Issuer under this Deed (other than a payment
obligation) shall remain in force during the Master Issuer Security
Period.
(f) The terms of the other Transactions Documents are incorporated in this
Deed to the extent required to give effect thereto and/or to ensure
that any purported disposition contained in this Deed is a valid
disposition in accordance with Section 2(1) of the Law of Property
(Miscellaneous Provisions) ▇▇▇ ▇▇▇▇.
(g) Unless the context otherwise requires, a reference to a Master Issuer
Charged Property includes the proceeds of sale of that Master Issuer
Charged Property.
(h) The term FULL TITLE GUARANTEE will be construed in accordance with the
LP (MP) Act but so that the covenants implied by the LP (MP) Act in
respect of the Master Issuer Security do not include:
(i) the words "other than any charges, encumbrances or rights which
that person does not and could not reasonably be expected to
know about" in section 3(1)(b) of the LP (MP) Act; and
(ii) section 6(2) of the LP (MP) Act.
2. SECURITY TRUST
2.1 DECLARATION OF TRUST
The Master Issuer Security Trustee holds all of the covenants,
undertakings, Security Interests and other rights and benefits made or
given under this Deed and the other Master Issuer Transaction Documents
on trust for itself and the other Master Issuer Secured Creditors upon
and subject to the terms and conditions of this Deed.
3. CREATION OF MASTER ISSUER SECURITY
3.1 GENERAL
(a) All the Master Issuer Security:
(i) is created in favour of the Master Issuer Security Trustee for
itself and as trustee on behalf of the other Master Issuer
Secured Creditors;
(ii) is created over the present and future assets of the Master
Issuer;
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(iii) is security for the payment or discharge of the Master Issuer
Secured Liabilities; and
(iv) is made with full title guarantee (or, in relation to any
rights or assets situated in Scotland or otherwise governed by
Scots law, with absolute warrandice).
(b) The term ALL OF ITS RIGHTS as used in this Clause includes, unless the
context requires otherwise:
(i) the benefit of all covenants, undertakings, representations,
warranties and indemnities;
(ii) all powers and remedies of enforcement and/or protection;
(iii) all rights to receive payment of all amounts assured or payable
(or to become payable), all rights to serve notices and/or to
make demands and all rights to take such steps as are required
to cause payment to become due and payable; and
(iv) all causes and rights of action in respect of any breach and
all rights to receive damages or obtain other relief in respect
thereof,
in each case, in respect of the relevant Master Issuer Charged
Property.
3.2 CONTRACTS
The Master Issuer assigns by way of first fixed security (or, to the
extent not assignable, charges by way of a first fixed charge) all of
its rights in respect of the Master Issuer Transaction Documents
(without prejudice to, in respect of any Master Issuer Swap Agreement,
and after giving effect to, any contractual netting provision contained
in such agreement).
3.3 MASTER ISSUER ACCOUNTS
The Master Issuer charges by way of a first fixed charge all of its
rights in respect of:
(a) any amount standing from time to time to the credit of the
Master Issuer Accounts;
(b) all interest paid or payable in relation to those amounts; and
(c) all debts represented by those amounts.
3.4 AUTHORISED INVESTMENTS
The Master Issuer charges by way of a first fixed charge all of its
rights in respect of:
(a) the Authorised Investments permitted to be made pursuant to the
Master Issuer Cash Management Agreement made or purchased from
time to time by or on behalf of the Master Issuer (whether
owned by it or held by any nominee on its behalf) using moneys
standing to the credit of the Master Issuer Accounts; and
(b) all interest, moneys and proceeds paid or payable in relation
to those Authorised Investments.
3.5 MISCELLANEOUS
The Master Issuer charges by way of a first fixed charge all of its
rights in respect of:
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(a) the benefit of all authorisations (statutory or otherwise) held
in connection with its use of any Master Issuer Charged
Property; and
(b) any compensation which may be payable to it in respect of those
authorisations.
3.6 FLOATING CHARGE
(a) The Master Issuer charges by way of a first floating charge all of its
undertaking and all of its property and assets (including, without
limitation, its uncalled capital) other than any property or assets at
any time otherwise effectively charged or assigned by way of fixed
charge or assignment under this Clause 3 (but excepting from the
foregoing exclusion all of the Master Issuer's undertaking, property
and assets situated in Scotland or the rights to which are governed by
Scots law, all of which are charged by the floating charge hereby
created).
(b) Except as provided below, the Master Issuer Security Trustee may, by
notice to the Master Issuer, (and so far as permitted by applicable
law), convert the floating charge created under this Clause 3 into a
fixed charge as regards any of the Master Issuer's assets subject to
the floating charge specified in that notice, if:
(i) a Note Event of Default is outstanding;
(ii) the Master Issuer Security Trustee considers those assets or
any part thereof to be in danger of being seized or sold under
any form of distress, attachment, execution, diligence or other
legal process or to be otherwise in jeopardy; and/or
(iii) a circumstance occurs which the Master Issuer Security Trustee
considers to (or to be likely to) prejudice, imperil or
threaten the Master Issuer Security.
(c) Except as provided below, the floating charge created by this Clause 3
will automatically (so far as permitted by applicable law) convert into
a fixed charge as regards:
(i) all of the Master Issuer's assets subject to the floating
charge, upon the service of a Note Acceleration Notice; and/or
(ii) any assets of the Master Issuer subject to the floating charge,
if those assets (contrary to the covenants and undertakings
contained in the Master Issuer Transaction Documents):
(A) are or become subject to a Security Interest in favour of
any person other than the Master Issuer Security Trustee;
or
(B) are or become the subject of a sale, transfer or other
disposition,
immediately prior to that Security Interest arising or that sale,
transfer or other disposition being made.
(d) The floating charge created by this Clause 3 may not be converted into
a fixed charge solely by reason of:
(i) the obtaining of a moratorium; or
(ii) anything done with a view to obtaining a moratorium,
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under the Insolvency ▇▇▇ ▇▇▇▇.
(e) The floating charge created by this Clause 3 is a QUALIFYING FLOATING
CHARGE for the purpose of paragraph 14 of Schedule B1 to the Insolvency
▇▇▇ ▇▇▇▇.
4. ACKNOWLEDGEMENTS AND UNDERTAKINGS
4.1 MASTER ISSUER SECURITY
(a) This Deed constitutes notice in writing to each Master Issuer Secured
Creditor of the assignment of all of the Master Issuer's rights to the
Master Issuer Charged Documents under Clause 3.2 (Contracts).
(b) By executing this Deed, each Master Issuer Secured Creditor
acknowledges and consents to the assignment referred to in this Clause
4.1 and the other Security Interests made or granted under this Deed
and confirms that as of the date of this Deed it has not received from
any other person notice of any assignment or charge of any Master
Issuer Charged Property.
(c) Immediately upon the execution of this Deed, the Master Issuer will
deliver a notice of assignment substantially in the form set out in
Schedule 1 (Form of Notice of Charge) hereto to each of the addressees
named in the notice and will use all reasonable endeavours to procure
that delivery to the Master Issuer Security Trustee on the date of this
Deed of receipts from the addressees of that notice substantially in
the form attached to the notice.
(d) Each Master Issuer Secured Creditor acknowledges the Master Issuer
Security, and covenants to the Master Issuer Security Trustee not to do
anything inconsistent with the Master Issuer Security or knowingly to
prejudice that security or any of the Master Issuer Charged Property
(or the Master Issuer Security Trustee's interest in those assets)
provided that, subject to Clause 5 (Restrictions on Exercise of Certain
Rights) hereto, this Deed does not limit the rights of any of the
Master Issuer Secured Creditors under the Master Issuer Transaction
Documents.
4.2 REGISTRATION OF MASTER ISSUER SECURITY
Within 21 calendar days of the date of creating the Master Issuer
Security the Master Issuer undertakes to file (or to procure that a
filing is made) with the Registrar of Companies pursuant to the
provisions of Chapter I of Part XII of the Companies ▇▇▇ ▇▇▇▇ a duly
completed Form 395 in respect of itself together with the required
registration fee and an executed copy of this Deed.
4.3 MASTER ISSUER TRANSACTION DOCUMENTS
Each Master Issuer Secured Creditor acknowledges that it is bound by,
and deemed to have notice of, all of the provisions of the Master
Issuer Transaction Documents as if it was a party to each Master Issuer
Transaction Document.
4.4 PAYMENTS TO THE MASTER ISSUER
Notwithstanding the Master Issuer Security but subject as provided
otherwise in this Deed, each of the parties acknowledges that each
Master Issuer Secured Creditor and each other party to any Master
Issuer Transaction Document may continue to make all payments becoming
due to the Master Issuer under any Master Issuer Transaction Document
in the manner envisaged by that
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document until receipt of written notice from the Master Issuer
Security Trustee or any Receiver requiring payments to be made
otherwise.
4.5 NEW MASTER ISSUER SECURED CREDITORS
(a) In order to become a New Master Issuer Secured Creditor a creditor of
the Master Issuer must enter into an ACCESSION DEED in the form or
substantially in the form set out in SCHEDULE 3.
(b) Each New Master Issuer Secured Creditor will be bound by the provisions
of this Deed as if it contained covenants by each New Master Issuer
Secured Creditor in favour of the Master Issuer Security Trustee and
every other Master Issuer Secured Creditor to observe and be bound by
all provisions of this Deed to apply to Master Issuer Secured
Creditors.
4.6 MASTER ISSUER SECURITY TRUSTEE'S DISCRETION
Subject to Clause 15(v) of the Master Issuer Trust Deed incorporated by
reference herein, without prejudice to the rights of the Master Issuer
Security Trustee after the security created under this Deed has become
enforceable, the Master Issuer hereby authorises the Master Issuer
Security Trustee, prior to the security created by this Deed becoming
enforceable, to exercise, or refrain from exercising, all rights,
powers, authorities, discretions and remedies of the Master Issuer
under or in respect of the Master Issuer Transaction Documents referred
to in Clause 3.2 (Contracts). For the avoidance of doubt, the Master
Issuer Security Trustee shall not be required to have regard to the
interests of the Master 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 Master Issuer in relation thereto.
5. RESTRICTIONS ON EXERCISE OF CERTAIN RIGHTS
5.1 PAYMENTS TO MASTER ISSUER ACCOUNTS
At all times prior to the release, re-assignment and/or discharge under
Clause 18 (Release) of the Master Issuer Security, the Master Issuer
will, save as otherwise provided in the Master Issuer Transaction
Documents or unless the Master Issuer Security Trustee otherwise agrees
in writing, procure that all amounts received by the Master Issuer
under or in respect of the Master Issuer Transaction Documents will be
credited to the Master Issuer Accounts in accordance with the terms of
the Master Issuer Transaction Documents.
5.2 NO WITHDRAWALS FROM MASTER ISSUER ACCOUNTS
No payment, transfer and/or withdrawal may be made from any of the
Master Issuer Accounts other than as expressly permitted under this
Deed or the Master Issuer Cash Management Agreement or with the prior
written consent of the Master Issuer Security Trustee.
5.3 NO ENFORCEMENT BY MASTER ISSUER SECURED CREDITORS
(a) Except as provided below, each of the Master Issuer Secured Creditors
(other than, in the case of paragraph (iii) below, the Note Trustee and
the Master Issuer Security Trustee) agrees with the Master Issuer and
the Master Issuer Security Trustee that:
(i) only the Master Issuer Security Trustee may enforce the Master
Issuer Security in accordance with the terms and conditions of
this Deed;
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(ii) it will not take any steps or proceedings to procure the
winding up, administration or liquidation of the Master Issuer;
and
(iii) it will not take any other steps or action against the Master
Issuer or the Master Issuer Charged Property for the purpose of
recovering any of the Master Issuer Secured Liabilities
(including by exercising any rights of set-off) or enforcing
any rights arising out of the Master Issuer Transaction
Documents against the Master Issuer.
(b) If the Note Trustee has failed to serve a Note Acceleration Notice or
to give directions to the Master Issuer Security Trustee to enforce the
Master Issuer Security or the Master Issuer Security Trustee has failed
to enforce the Master Issuer Security, in each case, within 30 days of
becoming bound under the terms of the Conditions, the Master Issuer
Trust Deed or this Deed, as the case may be, so to do and that failure
is continuing or if there are no Notes outstanding, then each of the
Master Issuer Secured Creditors will be entitled to take any steps and
proceedings against the Master Issuer for the purpose of recovering any
of the Master Issuer Secured Liabilities or enforcing any rights
arising out of the Master Issuer Transaction Documents as it considers
necessary other than any steps or proceedings:
(i) in respect of procuring the winding up, administration or
liquidation of the Master Issuer; and/or
(ii) which would result in the breach by it of Clause 6 (Payments
out of the Master Issuer Accounts Prior to Acceleration) and/or
Clause 7 (Payments out of the Master Issuer Accounts Upon
Acceleration) herein and/or any term of the other Master Issuer
Transaction Documents.
5.4 LIMITED RECOURSE
(a) Each of the Master Issuer Secured Creditors (except for the
Noteholders) hereby agrees that, notwithstanding any other provision of
any Master Issuer Transaction Document, all obligations of the Master
Issuer to each Master Issuer Secured Creditor (except for the
Noteholders) in respect of the Master Issuer Secured Liabilities owing
to each Master Issuer Secured Creditor (except for the Noteholders) are
limited in recourse as set out below:
(i) in the event of non-payment of any sum due and payable to a
Master Issuer Secured Creditor (except for the Noteholders),
its only remedy shall be enforcement of the Master Issuer
Security in accordance with the provisions of this Deed and the
other Master Issuer Transaction Documents; and
(ii) in the event that the net proceeds of enforcing and (as fully
as practicable and over whatever time period the Master Issuer
Security Trustee considers reasonably necessary) realising all
the Master Issuer Security are (after application of the
proceeds in accordance with the provisions of this Deed)
insufficient to discharge in full the amount of any Master
Issuer Secured Liability owed to a Master Issuer Secured
Creditor (except for the Noteholders), the Master Issuer's
obligation in respect of the unpaid amount shall be
automatically extinguished and such Master Issuer Secured
Creditor shall have no further claim against the Master Issuer
in respect of such unpaid amount.
(b) The provisions of this Clause 5.4 shall survive the termination of this
Deed.
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5.5 AMOUNTS RECEIVED BY MASTER ISSUER SECURED CREDITORS
Each Master Issuer Secured Creditor agrees that if any amount is
received by it (including by way of set-off) in respect of any Master
Issuer Secured Liability owed to it other than in accordance with the
provisions of this Deed, then an amount equal to the difference between
the amount so received by it and the amount that it would have received
had it been paid in accordance with the provisions of this Deed shall
be received and held by it as trustee for the Master Issuer Security
Trustee and shall be paid over to the Master Issuer Security Trustee
immediately upon receipt so that such amount can be applied in
accordance with the provisions of this Deed.
6. PAYMENTS OUT OF THE MASTER ISSUER ACCOUNTS PRIOR TO ACCELERATION
6.1 APPLICATION
No payment, transfer and/or withdrawal may be made from any of the
Master Issuer Accounts:
(a) at any time upon and after enforcement of the Master Issuer
Security without the prior written consent of the Master Issuer
Security Trustee; and/or
(b) under this Clause at any time upon and after a Note
Acceleration Notice has been served.
6.2 PRIORITY OF PAYMENTS FOR MASTER ISSUER REVENUE RECEIPTS - PRIOR TO
ENFORCEMENT AND ACCELERATION
Notwithstanding the Master Issuer Security but subject to Clause 6.1
(Application) and this Clause 6.2 (Priority of payments of Master
Issuer Principal Receipts - prior to enforcement and acceleration), the
Master Issuer Cash Manager, on behalf of the Master Issuer and the
Master Issuer Security Trustee or its appointee, will withdraw funds
standing to the credit of the Master Issuer Transaction Account on each
Quarterly Interest Payment Date (or on another date in respect of
certain payments identified therein made to satisfy certain liabilities
of the type described therein below if those payments are due on that
other date) to be applied in accordance with the terms and conditions
of the Master Issuer Cash Management Agreement in the order of priority
(in each case, only to the extent that payments of a higher order of
priority have been made in full) as set out in paragraph 3 of Schedule
2 of the Master Issuer Cash Management Agreement provided that any
amounts raised by the Master Issuer by way of an issuance of Notes and
standing to the credit of the Master Issuer Transaction Account will
not be applied by the Master Issuer in accordance with such priority
and such amounts will be advanced on such day by the Master Issuer to
Funding 2 pursuant to the Master Intercompany Loan Agreement as a Loan
Tranche corresponding to such Notes.
6.3 PRIORITY OF PAYMENTS OF MASTER ISSUER PRINCIPAL RECEIPTS - PRIOR TO
ENFORCEMENT AND ACCELERATION
Notwithstanding the Master Issuer Security but subject to Clause 6.1
(Application) and this Clause 6.3 (Priority of Payments of Master
Issuer Principal Receipts - prior to enforcement and acceleration), the
Master Issuer Cash Manager, on behalf of the Master Issuer and the
Master Issuer Security Trustee or its appointee, will withdraw funds
standing to the credit of the Master Issuer Transaction Accounts on
each Quarterly Interest Payment Date to be applied in accordance with
the terms and conditions of the Master Issuer Cash Management Agreement
in the order of priority (in each case, only to the extent that
payments of a higher order of priority have been made in full) as set
out in paragraph 4 of Schedule 2 to the Master Issuer Cash Management
Agreement provided that any amounts raised by the Master Issuer by way
of an issuance of Further Notes, Replacement Notes
9
or New Notes and standing to the credit of the Master Issuer
Transaction Account will not be applied by the Master Issuer in
accordance with such priority and such amounts will be advanced on any
day by the Master Issuer to Funding 2 pursuant to the Master
Intercompany Loan Agreement as a Loan Tranche.
6.4 PAYMENT OF MASTER ISSUER REVENUE RECEIPTS AFTER SERVICE OF A MASTER
ISSUER NOTE ACCELERATION NOTICE BUT PRIOR TO THE SERVICE OF AN
INTERCOMPANY LOAN ACCELERATION NOTICE
From and including the time when a Note Acceleration Notice has been
served on the Master Issuer but prior to the service of a Master
Intercompany Loan Acceleration Notice, all Master Issuer Revenue
Receipts received or recovered by the Master Issuer Security Trustee or
any Receiver for the benefit of the Master Issuer Secured Creditors in
respect of the Master Issuer Secured Liabilities shall be held by the
Master Issuer Security Trustee or any Receiver, as the case may be, on
trust to be applied in accordance with Clause 6.2 (Priority of payments
for Master Issuer Revenue Receipts - prior to enforcement and
acceleration) herein but as if:
(a) each of the references in the Master Issuer Cash Management
Agreement to the Master Issuer Pre-Enforcement Revenue Priority
of Payments to the Master Issuer Security Trustee included a
reference to any Receiver appointed by the Master Issuer
Security Trustee;
(b) any reference in the Master Issuer Cash Management Agreement to
the Master Issuer Pre-Enforcement Revenue Priority of Payments
to an amount payable by the Master Issuer which is not a Master
Issuer Secured Liability were deleted; and
(c) Clause 6.2 (Priority of payments for Master Issuer Revenue
Receipts - prior to enforcement and acceleration) and the
Master Issuer Pre-Enforcement Revenue Priority of Payments were
expressed to be subject to the provisions of Clause 6.6
(Enforcement When Not All Amounts Due and Payable).
6.5 AUTHORISED INVESTMENTS
(a) Notwithstanding the Master Issuer Security but subject to Clause 6.1
(Application), the Master Issuer Cash Manager, on behalf of the Master
Issuer and the Master Issuer Security Trustee or its appointee, may
withdraw amounts standing to the credit of the Master Issuer Accounts
from time to time for the purpose of acquiring Authorised Investments
in accordance with the terms of the Master Issuer Bank Agreement and
the Master Issuer Cash Management Agreement. All amounts received in
respect of any Authorised Investments (including any amounts received
as a result of a disposal under paragraph (b) below) will be deposited
into the Master Issuer Transaction Account.
(b) Notwithstanding the Master Issuer Security, the Master Issuer Cash
Manager, on behalf of the Master Issuer and the Master Issuer Security
Trustee or its appointee, may sell or redeem or otherwise dispose of
any Authorised Investments on any day prior to the enforcement of the
Master Issuer Security subject to the terms and conditions of this Deed
and the Master Issuer Cash Management Agreement.
6.6 ENFORCEMENT WHEN NOT ALL AMOUNTS DUE AND PAYABLE
If the Master Issuer Security Trustee enforces the Master Issuer
Security at a time when either no amounts or not all amounts owing in
respect of the Master Issuer Secured Liabilities have become due and
payable, the Master Issuer Security Trustee (or a Receiver) may, for so
long as no such amounts or not all such amounts have become due and
payable, pay any monies referred to in
10
Clause 6 (Payments out of the Master Issuer Accounts Prior to
Acceleration) herein into, and retain such monies in, an
interest-bearing account (a RETENTION ACCOUNT) to be held by it as
security and applied by it in accordance with Clause 6 (Payments out of
the Master Issuer Accounts Prior to Acceleration) herein as and when
any of the amounts referred to therein become due and payable.
7. PAYMENTS OUT OF THE MASTER ISSUER ACCOUNTS UPON ACCELERATION
7.1 PRIORITY OF PAYMENTS OF MASTER ISSUER REVENUE RECEIPTS - AFTER NOTE
ACCELERATION BUT BEFORE INTERCOMPANY LOAN ACCELERATION
All moneys received or recovered by the Master Issuer Security Trustee
or any Receiver in respect of the Master Issuer Revenue Receipts
following service of a Note Acceleration Notice but before the service
of a Master Intercompany Loan Acceleration Notice will be held by it on
trust to be applied by the Master Issuer Security Trustee in the same
order of priority as set out in the Master Issuer Pre-Enforcement
Revenue Priority of Payments except that:
(a) each of the references in the Master Issuer Cash Management
Agreement to the Master Issuer Pre-Enforcement Revenue Priority
of Payments to the Master Issuer Security Trustee included a
reference to any Receiver appointed by the Master Issuer
Security Trustee;
(b) any reference in the Master Issuer Cash Management Agreement to
the Master Issuer Pre-Enforcement Revenue Priority of Payments
to an amount payable by the Master Issuer which is not a Master
Issuer Secured Liability were deleted; and
(c) Clause 6.2 (Priority of payments for Master Issuer Revenue
Receipts - prior to enforcement and acceleration) and the
Master Issuer Pre-Enforcement Revenue Priority of Payments were
expressed to be subject to the provisions of Clause 6.6
(Enforcement When Not All Amounts Due and Payable).
7.2 PRIORITY OF PAYMENTS OF MASTER ISSUER PRINCIPAL RECEIPTS - AFTER NOTE
ACCELERATION BUT BEFORE INTERCOMPANY LOAN ACCELERATION
Following the service of a Note Acceleration Notice but prior to the
service of a Master Intercompany Loan Acceleration Notice on Funding 2,
the Master Issuer Security Trustee (or Receiver appointed on its
behalf) will apply Master Issuer Principal Receipts on each Quarterly
Interest Payment Date to repay the Notes in the following manner (the
MASTER ISSUER POST-ENFORCEMENT PRINCIPAL PRIORITY OF PAYMENTS):
(a) the Class A Notes: from principal amounts received by the
Master Issuer from Funding 2 in respect of each AAA Loan
Tranche (and in respect of (ii) below, the principal amounts
received (if any) from the Master Issuer Swap Providers under
the relevant Master Issuer Swap Agreements in respect of the
related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Interest Payment Date to the relevant Master
Issuer Swap Providers in respect of the related Series
and Class of Class A Notes in accordance with the terms
of the relevant Master Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Interest Payment Date on the related
Series and Class of Class A Notes;
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(b) the Class B Notes: from principal amounts received by the
Master Issuer from Funding 2 in respect of each AA Loan Tranche
(and in respect of (ii) below, the principal amounts received
(if any) from the Master Issuer Swap Providers under the
relevant Master Issuer Swap Agreements in respect of the
related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Interest Payment Date to the relevant Master
Issuer Swap Providers in respect of the related Series
and Class of Class B notes in accordance with the terms
of the relevant Master Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Interest Payment Date on the related
Series and Class of Class B Notes;
(c) the Class M Notes: from principal amounts received by the
Master Issuer from Funding 2 in respect of each A Loan Tranche
(and in respect of (ii) below, the principal amounts received
(if any) from the Master Issuer Swap Providers under the
relevant Master Issuer Swap Agreements in respect of the
related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Interest Payment Date to the relevant Master
Issuer Swap Providers in respect of the related Series
and Class of Class M Notes in accordance with the terms
of the relevant Master Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Interest Payment Date on the related
Series and Class of Class M Notes;
(d) the Class C Notes: from principal amounts received by the
Master Issuer from Funding 2 in respect of each BBB Loan
Tranche (and in respect of (ii) below, the principal amounts
received (if any) from the Master Issuer Swap Providers under
the relevant Master Issuer Swap Agreements in respect of the
related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Interest Payment Date to the relevant Master
Issuer Swap Providers in respect of the related Series
and Class of Class C Notes in accordance with the terms
of the relevant Master Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Interest Payment Date on the related
Series and Class of Class C Notes;
(e) the Class D Notes: from principal amounts received by the
Master Issuer from Funding 2 in respect of each BB Loan Tranche
(and in respect of (ii) below, the principal amounts received
(if any) from the Master Issuer Swap Providers under the
relevant Master Issuer Swap Agreements in respect of the
related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal)
on such Interest Payment Date to the relevant Master
Issuer Swap Providers in respect of the related Series
and Class of Class D Notes in accordance with the terms
of the relevant Master Issuer Swap Agreements; and
(ii) to pay amounts due and payable in respect of principal
(if any) on such Interest Payment Date on the related
Series and Class of Class D Notes;
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The amounts standing to the credit of any sub-ledger of the Master
Issuer Principal Ledger (in respect of a Series and Class of Notes) may
only be applied by the Master Issuer Security Trustee to pay the
principal amounts due (if any) in respect of such Series and Class of
Notes under the Master Issuer Post-Enforcement Principal Priority of
Payments.
7.3 PRIORITY OF PAYMENTS OF MASTER ISSUER PRINCIPAL RECEIPTS AND MASTER
ISSUER REVENUE RECEIPTS - AFTER NOTE ACCELERATION AND INTERCOMPANY LOAN
ACCELERATION
(a) Following the service of a Note Acceleration Notice on the Master
Issuer and the service of a Master Intercompany Loan Acceleration
Notice on Funding 2 all amounts received or recovered by the Master
Issuer Security Trustee (or a Receiver appointed on its behalf) shall
be applied in accordance with the order of priorities set out in
paragraph (b) below (known as the MASTER ISSUER POST-ENFORCEMENT
PRIORITY OF PAYMENTS).
(b) The Master Issuer Security Trustee will on each Quarterly Interest
Payment Date, apply amounts (other than amounts representing (i) any
Excess Swap Collateral which shall be returned directly to the relevant
Master Issuer Swap Provider; (ii) in respect of each Master Issuer Swap
Provider, prior to the designation of an Early Termination Date under
the relevant Master Issuer Swap Agreement and the resulting application
of the collateral by way of netting or set-off, an amount equal to the
value of all collateral (other than Excess Swap Collateral) provided by
such Master Issuer Swap Provider to the Master Issuer pursuant to the
relevant Master Issuer Swap Agreement (and any interest or
distributions in respect thereof) and (iii) amounts payable to any
replacement swap provider using any termination payment received by the
Master Issuer in respect of the corresponding Master Issuer Swap
Agreement or amounts payable to a Master Issuer Swap Provider (other
than pursuant to item (xiii) below) using any premium recovered from
any replacement swap provider, which will be paid when due) received or
recovered following enforcement of the Master Issuer Charged Property
as follows:
(i) without priority among them, but in proportion to the
respective amounts due, to pay amounts due to:
(A) the Master Issuer Security Trustee and any Receiver
appointed by the Master Issuer Security Trustee together
with interest and any amount in respect of VAT on those
amounts and any amounts then due or to become due to the
Master Issuer Security Trustee and the Receiver under the
provisions of this Deed;
(B) the Note Trustee together with interest and any amount in
respect of VAT on those amounts and any amounts then due
or to become due and payable to the Note Trustee under
the provisions of the Master Issuer Trust Deed; and
(C) the Agent Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amount in
respect of VAT on those amounts and any costs, charges,
liabilities and expenses then due or to become due and
payable to them under the provisions of the Master Issuer
Paying Agent and Agent Bank Agreement;
(ii) without priority among them, but in proportion to the
respective amounts due, towards payment of amounts (together
with any amount in respect of VAT on those amounts) due and
payable to the Master Issuer Cash Manager under the Master
Issuer Cash Management Agreement and to the Master Issuer
Corporate Services Provider under the Master Issuer Corporate
Services Agreement and to the Master Issuer Account Bank under
the Master Issuer Bank Account Agreement;
13
(iii) subject to item (iv) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Master Issuer Swap Providers for each Series of Class A
Notes (excluding any termination payment);
(iv) without priority among them, but in proportion to the
respective amounts due, to pay interest due or overdue on, and
to repay principal of, the applicable Series of Class A Notes
and to pay any swap termination payment due to the Master
Issuer Swap Provider for each Series of Class A Notes (but
excluding any Master Issuer Swap Excluded Termination Amount)
provided that if the amounts available for distribution under
this item (iv) (on the assumption that no amounts are due and
payable under item (iii) and no amounts are received from any
Master Issuer Swap Provider) would be insufficient to pay the
sterling equivalent of the amounts due and payable under this
item (iv), the shortfall will be divided amongst all such
amounts on a pro rata basis and the amount payable by the
Master Issuer to the Master Issuer Swap Provider in respect of
any Series of Class A Notes under item (iii) above will be
reduced by the amount of the shortfall applicable to that
Series of Class A Notes;
(v) subject to item (vi) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Master Issuer Swap Providers for each Series of Class B
Notes (excluding any termination payment);
(vi) without priority among them, but in proportion to the
respective amounts due, to pay interest due or overdue on, and
to repay principal of, the applicable Series of Class B Notes
and to pay any swap termination payment due to the Master
Issuer Swap Provider for each Series of Class B Notes (but
excluding any Master Issuer Swap Excluded Termination Amount)
provided that if the amounts available for distribution under
this item (vi) (on the assumption that no amounts are due and
payable under item (v) and no amounts are received from any
Master Issuer Swap Provider) would be insufficient to pay the
sterling equivalent of the amounts due and payable under this
item (vi), the shortfall will be divided amongst all such
amounts on a pro rata basis and the amount payable by the
Master Issuer to the Master Issuer Swap Provider in respect of
any Series of Class B Notes under item (v) above will be
reduced by the amount of the shortfall applicable to that
Series of Class B Notes;
(vii) subject to item (viii) below, without priority among them but
in proportion to the respective amounts due, to pay amounts due
to the Master Issuer Swap Providers for each Series of Class M
Notes (excluding any termination payment);
(viii) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class M Notes and to pay
any swap termination payment due to the Master Issuer Swap
Provider for each Series of Class M Notes (but excluding any
Master Issuer Swap Excluded Termination Amount) provided that
if the amounts available for distribution under this item
(viii) (on the assumption that no amounts are due and payable
under item (vii) above and no amounts are received from any
Master Issuer Swap Provider) would be insufficient to pay the
sterling equivalent of the amounts due and payable under this
item (viii), the shortfall will be divided amongst all such
amounts on a pro rata basis and the amount payable by the
Master Issuer to the Master Issuer Swap Provider in respect of
any Series of Class M Notes under item (vii) above will be
reduced by the amount of the shortfall applicable to that
Series of Class M Notes;
14
(ix) subject to item (x) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Master Issuer Swap Providers for each Series of Class C
Notes (excluding any termination payment);
(x) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class C Notes and to pay
any swap termination payment due to the Master Issuer Swap
Provider for each Series of Class C Notes (but excluding any
Master Issuer Swap Excluded Termination Amount) provided that
if the amounts available for distribution under this item (x)
(on the assumption that no amounts are due and payable under
item (ix) and no amounts are received from any Master Issuer
Swap Provider) would be insufficient to pay the sterling
equivalent of the amounts due and payable under this item (x),
the shortfall will be divided amongst all such amounts on a pro
rata basis and the amount payable by the Master Issuer to the
Master Issuer Swap Provider in respect of any Series of Class C
Notes under item (ix) above will be reduced by the amount of
the shortfall applicable to that Series of Class C Notes;
(xi) subject to item (xii) below, without priority among them but in
proportion to the respective amounts due, to pay amounts due to
the Master Issuer Swap Providers for each Series of Class D
Notes (excluding any termination payment);
(xii) without priority among them but in proportion to the respective
amounts due, to pay interest due or overdue on, and to repay
principal of, the applicable Series of Class D Notes and to pay
any swap termination payment due to the Master Issuer Swap
Provider for each Series of Class D Notes (but excluding any
Master Issuer Swap Excluded Termination Amount) provided that
if the amounts available for distribution under this item (xii)
(on the assumption that no amounts are due and payable under
item (xi) and no amounts are received from any Master Issuer
Swap Provider) would be insufficient to pay the sterling
equivalent of the amounts due and payable under this item
(xii), the shortfall will be divided amongst all such amounts
on a pro rata basis and the amount payable by the Master Issuer
to the Master Issuer Swap Provider in respect of any Series of
Class D Notes under item (xi) above will be reduced by the
amount of the shortfall applicable to that Series of Class D
Notes;
(xiii) without priority among them but in proportion to the respective
amounts due, to pay any Master Issuer Swap Excluded Termination
Amount to the Master Issuer Swap Providers; and
(xiv) the balance to the Master Issuer.
Notwithstanding the above, amounts standing to the credit of any
sub-ledger to the Master Issuer Revenue Ledger and/or the Master Issuer
Principal Ledger (in respect of a Series and Class of Notes) may only
be applied by the Master Issuer Security Trustee to pay the interest,
principal and other amounts due in respect of such Series and Class of
Notes or any shortfall in the amounts available to pay items (i) to
(ii) under the Master Issuer Post-Enforcement Priority of Payments and
may not be applied in payment of interest, principal and other amounts
due in respect of any other Series and Class of Notes.
15
8. ENFORCEMENT BY THE MASTER ISSUER SECURITY TRUSTEE
8.1 MANDATORY ENFORCEMENT
(a) Subject to Clause 8.2 (Administrative receiver), the Master Issuer
Security Trustee will not, and will not be bound to, take any steps,
institute any proceedings, exercise its rights and/or to take any other
action under or in connection with any of the Master Issuer Transaction
Documents (including, without limitation, enforcing the Master Issuer
Security) unless the Master Issuer Security Trustee:
(i) has been indemnified and/or secured to its satisfaction against
all liabilities to which is may render itself liable or which
it may incur by so doing and, for this purpose, the Master
Issuer Security Trustee may demand, prior to taking any such
action, that there be paid to it in advance such sums as it
considers (without prejudice to any further demand) shall be
sufficient so to indemnify it; and
(ii) is directed to do so by:
(A) the Note Trustee; or
(B) if there are no Notes outstanding, all of the other
Master Issuer Secured Creditors,
(in each case, the INSTRUCTING PARTY), in which case the Master Issuer
Security Trustee will be bound to take such action in the manner
instructed by the Instructing Party, provided that the Master Issuer
Security Trustee may at all times, whether or not so instructed, take
such action in respect of any right, power or discretion which is
personal to the Master Issuer Security Trustee or is to preserve or
protect the Master Issuer Security Trustee's position or is of a purely
administrative nature.
(b) The Master Issuer Security Trustee shall not be liable to any Master
Issuer Secured Creditor for any action it may take in accordance with
any instructions received pursuant to paragraph (a) above. The Master
Issuer Security Trustee shall be entitled to seek clarification from
the relevant Instructing Party with regard to such instructions and may
in its discretion elect not to act pending receipt of such
clarification to its satisfaction from such relevant Instructing Party.
(c) Upon being directed by the Note Trustee to enforce the Master Issuer
Security in accordance with paragraph (a)(i) above, the Master Issuer
Security Trustee will notify the Master Issuer and the Master Issuer
Secured Creditors of such direction.
8.2 ADMINISTRATIVE RECEIVER
(a) Notwithstanding any term of this Deed, subject to paragraph (b) below,
the Master Issuer Security Trustee must enforce the Master Issuer
Security by appointing an administrative receiver in respect of the
Master Issuer if it has actual notice of:
(i) an application for the appointment of an administrator in
respect of the Master Issuer; or
(ii) the giving of a notice of intention to appoint an administrator
in respect of the Master Issuer.
and that appointment shall take effect not later than the final day by
which it must take effect in order to prevent an administration
proceeding.
16
(b) The Master Issuer Security Trustee is not liable for any failure to
appoint an administrative receiver in respect of the Master Issuer,
save in the case of its own gross negligence, wilful default or fraud
and, for the avoidance of doubt:
(i) nothing in this Clause 8.2 (Administrative receiver) shall
construed so as to impose on the Master Issuer Security Trustee
any obligation to indemnify any administrative receiver
appointed by it pursuant to this Clause 8.2 (Administrative
receiver) except to the extent of (and from) the cash and
assets comprising the Master Issuer Security held by the Master
Issuer Security Trustee at such time; and
(ii) the Master Issuer Security Trustee shall have no liability if,
having used its reasonable endeavours, it is unable to find a
person who is willing to be appointed as an administrative
receiver on the terms as to indemnification referred to in
paragraph (b)(i) above.
(c) The Master Issuer Security Trustee shall not be liable to any Master
Issuer Secured Creditor for any action it may take in accordance with
paragraph (a) above.
(d) The Master Issuer hereby waives any claims against the Master Issuer
Security Trustee in respect of any appointment made pursuant to this
Clause 8.2.
9. ENFORCEMENT OF MASTER ISSUER SECURITY
9.1 GENERAL
(a) For the purposes of all powers implied by statute, the Master Issuer
Secured Liabilities are deemed to have become due and payable on the
date of this Deed.
(b) Section 103 of the 1925 Act (restricting the power of sale) and Section
93 of the 1925 Act (restricting the right of consolidation) do not
apply to the Security Interests comprised in the Master Issuer
Security.
9.2 NOTE EVENT OF DEFAULT
The Master Issuer Security will become immediately enforceable upon the
occurrence of a Note Event of Default or, if there are no Notes
outstanding, upon failure by the Master Issuer to pay any other Master
Issuer Secured Liability on its due date (subject to any applicable
grace period).
9.3 PRIVILEGES
The Master Issuer Security Trustee and each Receiver is entitled to all
the rights, powers, privileges and immunities conferred by the 1925 Act
on mortgagees and receivers duly appointed under the 1925 Act, except
that Section 103 of the 1925 Act does not apply.
9.4 POWER OF SALE
The power of sale and other powers conferred by Section 101 of the 1925
Act, as extended and varied by this Deed, will be immediately
exercisable at any time after the Master Issuer Security has become
enforceable.
17
9.5 EXTENSION OF THE 1925 ACT
(a) The statutory powers of leasing conferred on the Master Issuer Security
Trustee are extended so as to authorise the Master Issuer Security
Trustee to lease, make agreements for leases, accept surrenders of
leases and grant options as the Master Issuer Security Trustee may
think fit and without the need to comply with any provision of Section
99 or 100 of the ▇▇▇▇ ▇▇▇.
(b) The statutory powers of sale and the other powers conferred on the
Master Issuer Security Trustee by Section 101(1) and (2) of the 1925
Act are extended so as to authorise the Master Issuer Security Trustee
(upon such terms as the Master Issuer Security Trustee may think fit
and in accordance with the terms of this Deed) to:
(i) make demand in the name of the other Master Issuer Secured
Creditors or in its own right for any moneys and liabilities in
respect of the Master Issuer Charged Property; and
(ii) do all or any of the things or exercise all or any of the
powers referred to in Clause 11 (Powers of Receiver) herein as
if each of them was expressly conferred on the Master Issuer
Security Trustee by this Deed.
9.6 MORTGAGEE IN POSSESSION
(a) Neither the Master Issuer Security Trustee nor any Receiver will be
liable, by reason of the Master Issuer Security or entering into
possession of a Master Issuer Charged Property, to account as mortgagee
or security holder in possession or for any loss on realisation or for
any default or omission for which a mortgagee or security holder in
possession might be liable.
(b) Each of the Master Issuer Security Trustee, the other Master Issuer
Secured Creditors and any Receiver will not take any action (other
than, in the case of the other Master Issuer Secured Creditors, with
the Master Issuer Security Trustee's prior written consent) which would
be likely to lead to the Master Issuer Security Trustee or the other
Master Issuer Secured Creditors becoming a mortgagee or security holder
in possession in respect of any Master Issuer Charged Property.
9.7 PROTECTION OF THIRD PARTIES
No person (including a purchaser) dealing with the Master Issuer
Security Trustee or any Receiver or its or his agents will be concerned
to enquire:
(a) whether the Master Issuer Secured Liabilities remain
outstanding or have become payable;
(b) whether any power which the Master Issuer Security Trustee or
that Receiver is purporting to exercise has become exercisable
or is being properly exercised; or
(c) how any money paid to the Master Issuer Security Trustee or to
that Receiver is to be applied,
and the protections afforded to purchasers from a mortgagee by Section
104 and 107 of the 1925 Act and to persons dealing with an
administrative receiver by Section 42(3) of the Insolvency ▇▇▇ ▇▇▇▇
will apply.
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9.8 CONTINGENCIES
If the Master Issuer Security is enforced at a time when no amount is
due in respect of the Master Issuer Secured Liabilities or any of the
Master Issuer Secured Liabilities are contingent or future, the Master
Issuer Security Trustee or any Receiver may pay the proceeds of any
recoveries effected by it into any interest-bearing account to be held
by it as security and applied in accordance with the terms and
conditions of this Deed and the Master Issuer Cash Management
Agreement.
9.9 DISPOSAL OF MASTER ISSUER CHARGED PROPERTY
Notwithstanding the other provisions of this Clause 9 (Enforcement of
Master Issuer Security), if the Master Issuer Security has become
enforceable otherwise than by reason of a default in payment of any
amount due on the Class A Notes (or, once the Class A Notes have been
redeemed in full, the Class B Notes or, once the Class A Notes and the
Class B Notes have been redeemed in full, the Class M Notes or, once
the Class A Notes, the Class B Notes and the Class M Notes have been
redeemed in full, the Class C Notes or, once the Class A Notes, the
Class B Notes, the Class M Notes and the Class C Notes have been
redeemed in full, the Class D Notes), the Master Issuer Security
Trustee will not be entitled to dispose of any of the Master Issuer
Charged Property unless either a sufficient amount would be realised to
allow discharge in full of all amounts owing to the Class A Noteholders
(and, once all of the Class A Noteholders have been repaid, the Class B
Noteholders and, once all the Class A Noteholders and the Class B
Noteholders have been repaid, the Class M Noteholders and, once all the
Class A Noteholders, the Class B Noteholders and the Class M
Noteholders have been repaid, the Class C Noteholders and, once all the
Class A Noteholders, the Class B Noteholders, the Class M Noteholders
and the Class C Noteholders have been repaid, the Class D Noteholders)
or the Master Issuer Security Trustee is of the sole opinion, which
shall be binding on the Master 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 reasonably
selected by the Master Issuer Security Trustee for the purpose of
giving such advice), that the cash flow prospectively receivable by the
Master 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 Master Issuer, to
discharge in full in due course all amounts owing to the Class A
Noteholders (or, once all of the Class A Noteholders have been repaid,
the Class B Noteholders or once all the Class A Noteholders and the
Class B Noteholders have been repaid, the Class M Noteholders or once
all the Class A Noteholders, the Class B Noteholders and the Class M
Noteholders have been repaid, the Class C Noteholders or once all the
Class A Noteholders, the Class B Noteholders, the Class M Noteholders
and the Class C Noteholders have been repaid, the Class D Noteholders).
The fees and expenses of the aforementioned financial adviser or other
professional adviser selected by the Master Issuer Security Trustee
shall be paid by the Master Issuer.
10. RECEIVER
10.1 APPOINTMENT OF RECEIVER
(a) Except as provided below, the Master Issuer Security Trustee may
appoint any one or more persons to be a Receiver of all or any part of
the Master Issuer Charged Property if the Master Issuer Security has
become enforceable.
(b) Any appointment under paragraph (a) above may be by deed, under seal or
in writing under its hand.
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(c) Except as provided below, any restriction imposed by law on the right
of a mortgagee to appoint a Receiver (including under section 109(1) of
the ▇▇▇▇ ▇▇▇) does not apply to this Deed.
(d) The Master Issuer Security Trustee is not entitled to appoint a
Receiver solely as a result of:
(i) the obtaining of a moratorium; or
(ii) anything done with a view to obtaining a moratorium,
under the Insolvency ▇▇▇ ▇▇▇▇.
10.2 REMOVAL
The Master Issuer Security Trustee may by writing under its hand
(subject to any requirement for an order of the court in the case of an
administrative receiver) remove any Receiver appointed by it and may,
whenever it thinks fit, appoint a new Receiver in the place of any
Receiver whose appointment may for any reason have terminated. The
Master Issuer Security Trustee may apply to the court for an order
removing an administrative receiver.
10.3 REMUNERATION
The Master Issuer Security Trustee may fix the remuneration of any
Receiver appointed by it and the maximum rate specified in Section
109(6) of the 1925 Act will not apply. The Master Issuer will pay the
remuneration of any Receiver in accordance with the terms and in the
manner agreed from time to time between the relevant Receiver and the
Master Issuer Security Trustee, subject to the terms and conditions of
this Deed.
10.4 AGENT OF THE MASTER ISSUER
(a) A Receiver will be deemed to be the agent of the Master Issuer for all
purposes and accordingly will be deemed to be in the same position as a
Receiver duly appointed by a mortgagee under the 1925 Act. The Master
Issuer alone is responsible for the contracts, engagements, acts,
omissions, defaults and losses of a Receiver and for liabilities
incurred by a Receiver.
(b) If a liquidator of the Master Issuer is appointed, the Receiver will
act as principal and not as agent of the Master Issuer Security
Trustee.
(c) The Master Issuer Security Trustee will not incur any liability (either
to the Master Issuer or to any other person) by reason of the
appointment of a Receiver.
10.5 RELATIONSHIP WITH MASTER ISSUER SECURITY TRUSTEE
To the fullest extent allowed by law, any right, power or discretion
conferred by this Deed (either expressly or impliedly) or by law on a
Receiver may after the Master Issuer Security becomes enforceable be
exercised by the Master Issuer Security Trustee in relation to any
Master Issuer Charged Property without first appointing a Receiver and
notwithstanding the appointment of a Receiver.
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11. POWERS OF RECEIVER
11.1 GENERAL
(a) A Receiver has all of the rights, powers and discretions set out below
in this Clause in addition to those conferred on it by any law; this
includes:
(i) in the case of an administrative receiver, all the rights,
powers and discretions conferred on an administrative receiver
under the Insolvency ▇▇▇ ▇▇▇▇; and
(ii) otherwise, all the rights, powers and discretions conferred on
a receiver (or a receiver and manager) under the 1925 Act and
the Insolvency ▇▇▇ ▇▇▇▇.
(b) If there is more than one Receiver holding office at the same time,
each Receiver may (unless the document appointing him states otherwise)
exercise all of the powers conferred on a Receiver under this Deed
individually and to the exclusion of any other Receiver.
11.2 POSSESSION
A Receiver may take immediate possession of, get in and collect any
Master Issuer Charged Property.
11.3 CARRY ON BUSINESS
A Receiver may carry on any business of the Master Issuer in any manner
he thinks fit.
11.4 EMPLOYEES
(a) A Receiver may appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes of this Deed
upon such terms as to remuneration or otherwise as he thinks fit.
(b) A Receiver may discharge any person appointed by the Master Issuer.
11.5 BORROW MONEY
A Receiver may raise and borrow money either unsecured or on the
security of any Master Issuer Charged Property either in priority to
the Master Issuer Security or otherwise and generally on any terms and
for whatever purpose which he thinks fit.
11.6 SALE OF ASSETS
(a) A Receiver may sell, exchange, convert into money and realise any
Master Issuer Charged Property by public auction or private contract
and generally in any manner and on any terms which he thinks fit.
(b) The consideration for any such transaction may consist of cash,
debentures or other obligations, shares, stock or other valuable
consideration and any such consideration may be payable in a lump sum
or by instalments spread over any period which he thinks fit.
(c) Fixtures, other than landlord's fixtures, may be severed and sold
separately from the property containing them without the consent of the
Master Issuer.
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11.7 LEASES
A Receiver may let any Master Issuer Charged Property for any term and
at any rent (with or without a premium) which he thinks fit and may
accept a surrender of any lease or tenancy of any Master Issuer Charged
Property on any terms which he thinks fit (including the payment of
money to a lessee or tenant on a surrender).
11.8 COMPROMISE
A Receiver may settle, adjust, refer to arbitration, compromise and
arrange any claim, account, dispute, question or demand with or by any
person who is or claims to be a creditor of the Master Issuer or
relating in any way to any Master Issuer Charged Property, provided
that, any such claim has priority to or ranks pari passu with this
Deed.
11.9 LEGAL ACTIONS
A Receiver may bring, prosecute, enforce, defend and abandon any
action, suit or proceedings in relation to any Master Issuer Charged
Property which he thinks fit.
11.10 RECEIPTS
A Receiver may give a valid receipt for any moneys and execute any
assurance or thing which may be proper or desirable for realising any
Master Issuer Charged Property.
11.11 SUBSIDIARIES
A Receiver may form a Subsidiary of the Master Issuer and transfer to
that Subsidiary any Master Issuer Charged Property.
11.12 DELEGATION
A Receiver may delegate his powers in accordance with this Deed.
11.13 LENDING
A Receiver may lend money or advance credit to any customer of the
Master Issuer.
11.14 PROTECTION OF ASSETS
A Receiver may:
(a) effect any repair or insurance and do any other act which the
Master Issuer might do in the ordinary conduct of its business
to protect or improve any Master Issuer Charged Property;
(b) commence and/or complete any building operation; and
(c) apply for and maintain any planning permission, building
regulation approval or any other authorisation,
in each case as he thinks fit.
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11.15 UNCALLED CAPITAL
A Receiver may call up or require the directors of the Master Issuer to
call up any uncalled capital of the Master Issuer.
11.16 PAYMENT OF EXPENSES
A Receiver may pay and discharge, out of the profits and income of the
Master Issuer Charged Property and any moneys made by it in carrying on
the business of the Master Issuer, the expenses incurred by it in
connection with the carrying on and management of that business or in
the exercise of any of the powers conferred by this Clause or otherwise
in respect of the Master Issuer Charged Property and all other expenses
which it shall think fit to pay and will apply the residue of those
profits and income in accordance with the terms and conditions of this
Deed.
11.17 OTHER POWERS
A Receiver may:
(a) do all other acts and things which he may consider desirable or
necessary for realising any Master 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 or law;
(b) exercise in relation to any Master Issuer Charged Property all
the powers, authorities and things which he would be capable of
exercising if he were the absolute beneficial owner of that
Master Issuer Charged Property; and
(c) use the name of the Master Issuer for any of the above
purposes.
12. MODIFICATION, AUTHORISATION, WAIVER, AND CONSENT
12.1 MODIFICATION
(a) The Master Issuer Security Trustee may concur (or direct the Funding 2
Security Trustee to concur) with the Master Issuer (or, in the case of
a direction of the Funding 2 Security Trustee, for it to concur with
Funding 2 or any other person) in making any modification to any Master
Issuer Transaction Document only if so directed by the Note Trustee, so
long as there are any Notes outstanding and with the prior consent of
any other relevant Master Issuer Secured Creditors.
(b) Subject to paragraph (c) below, the Master Issuer Security Trustee
shall be required to give its consent to any modifications to any
Funding 2 Agreement or the Master Definitions and Construction Schedule
(or direct the Funding 2 Security Trustee to its consent to any
modifications to any Funding 2 Agreement or the Master Definitions and
Construction Schedule) that are requested by Funding 2 or the Cash
Manager, provided that Funding 2 or the Cash Manager, as the case may
be, has certified to the Master Issuer Security Trustee in writing that
such modifications are required in order to accommodate:
(i) Notes to be issued and/or Loan Tranches to be made available by
the Master Issuer to Funding 2 under the Master Intercompany
Loan Agreement;
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(ii) the entry into by Funding 2 into New Intercompany Loan
Agreements, the issue of new types of notes by New Funding 2
Issuers or the issue of notes by Funding 2 directly;
(iii) the addition of other relevant Funding 2 Secured Creditors to
the Transaction Documents;
(iv) the assignment of New Loan Types or their Related Security to
the Mortgages Trustee;
(v) the inclusion of a New Funding Beneficiary as a beneficiary of
the Mortgages Trust;
(vi) changes to the Funding 2 Reserve Required Amount, the Funding 2
Liquidity Reserve Required Amount and/or the manner in which
the Funding 2 General Reserve Fund or the Funding 2 Liquidity
Reserve Fund is funded;
(vii) different Interest Payment Dates and/or Interest Periods for
any Notes to be issued by the Master Issuer (including
modification of the Interest Payment Dates and/or Interest
Periods and/or the basis for the calculation of interest in
respect of any outstanding Notes and/or the Funding 2 Interest
Payment Dates and/or the Interest Period and/or the basis for
the calculation of interest in respect of any outstanding Loan
Tranches under the Master Intercompany Loan Agreement); and/or
(viii) changes to be made to the definitions of Asset Trigger Event
and Non-Asset Trigger Event.
(c) The Master Issuer Security Trustee shall only be required to (or
required to direct the Funding 2 Security Trustee to) make the
modifications set out in paragraph (b) above if the Master Security
Trustee is satisfied that:
(i) in respect of the matter set out in paragraphs (a)(i) to (iv),
the conditions precedent to:
(A) Notes being issued by the Master Issuer and/or Loan
Tranches being made available to Funding 2 (as set out in
Condition 15 and Clause 3 of the Master Intercompany Loan
Agreement);
(B) New Notes being issued by New Funding 2 Issuers or by
Funding 2 directly and/or New Funding 2 Loans being made
available to Funding 2;
(C) the assignment of New Loans to the Mortgages Trustee (as
set out in Clause 4 of the Mortgage Sale Agreement);
(D) the inclusion of a New Beneficiary of the Mortgages Trust
(as set out in Clause 13 of the Mortgages Trust Deed),
have been satisfied; and
(ii) in respect of the matters set out in paragraphs (b)(i) to
(b)(vii) inclusive, the Master Issuer Security Trustee has
received written confirmation from each of the Rating Agencies
that the relevant modifications will not result in a reduction,
qualification or withdrawal of the current ratings of the
Notes.
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(d) Each Master Issuer Secured Creditor hereby acknowledges that the Master
Issuer Security Trustee is required to make the modifications set out
in paragraph (b) above (subject to paragraph (c)), and each Master
Issuer Secured Creditor further acknowledges that such modifications
may adversely affect the manner in which the Mortgages Trustee
allocates monies to Funding 2 and/or the amount of monies available to
Funding 2 and to the Master Issuer to meet the Funding 2 Secured
Liabilities and the Master Issuer Secured Liabilities. Each Master
Issuer Secured Creditor agrees that such modifications shall be binding
on it and unless the Master Issuer Security Trustee otherwise agrees,
notice thereof shall be given by the Master Issuer Cash Manager to the
Master Issuer Secured Creditors (including the Noteholders) as soon as
practicable after the modifications have been made.
(e) Each of the Master Issuer Secured Creditors agrees from time to time to
do and perform such other and further acts and execute and deliver any
and all such other documents and instruments as may be required by law
or requested by the other party at the other party's expense to
establish, maintain and protect the rights and remedies of the other
party and carry out and effect the intent and purpose of this Clause
12.
12.2 AUTHORISATION OR WAIVER
The Master Issuer Security Trustee shall waive or authorise (or direct
the Funding 2 Security Trustee to waive or authorise) (without
prejudice to its rights in respect of any further or other breach) any
breach or proposed breach by the Master Issuer or any other person (or,
in the case of a direction of the Funding 2 Security Trustee, by
Funding 2 or any other person) of any of the covenants or provisions of
any Master Issuer Transaction Document only if so directed by the Note
Trustee so long as there are any Notes outstanding.
12.3 REQUESTS FOR CONSENT OR APPROVAL
If a request is made to the Master Issuer Security Trustee by the
Master Issuer or any other person to give its consent or approval to
any event, matter or thing, then:
(a) if any Master Issuer Transaction Document specifies that the
Master Issuer Security Trustee is required to give its consent
or approval to that event, matter or thing if certain specified
conditions are satisfied in relation to that event, matter or
thing, then the Master Issuer Security Trustee will give its
consent or approval to that event, matter or thing upon being
satisfied that those specified conditions have been satisfied;
and
(b) in any other case, the Master Issuer Security Trustee shall
give its consent or approval to that event, matter or thing
only if so directed by the Note Trustee so long as there are
any Notes outstanding.
12.4 BINDING ON MASTER ISSUER SECURED CREDITORS
Any modification, authorisation, waiver, consent or approval provided
under this Clause will be binding on all of the Master Issuer Secured
Creditors.
12.5 ADDITIONAL TERMS AND CONDITIONS
Any modification, authorisation, waiver, consent or approval provided
under this Clause may be made or given on such terms and subject to
such conditions (if any) as the Note Trustee may direct so long as
there are any Notes outstanding.
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12.6 NOTICE TO MASTER ISSUER SECURED CREDITORS
If required by the Master Issuer Security Trustee, the Master Issuer
will as soon as practicable notify:
(a) the Noteholders in accordance with the Conditions; and
(b) each of the other Master Issuer Secured Creditors in accordance
with this Deed,
in each case, of any modification, authorisation or waiver made under
this Clause.
13. ADDITIONAL PROVISIONS REGARDING THE MASTER ISSUER SECURITY TRUSTEE
13.1 INCORPORATION OF MASTER ISSUER TRUST DEED PROVISIONS
(a) Without prejudice to the other provisions of this Deed and except as
set out below, the following Clauses of the Master Issuer Trust Deed
are incorporated in and will apply, mutatis mutandis, to this Deed (and
for that purpose references in that Clause to "these presents" or to
"this Deed" will be construed as references to this Deed and references
in that Clause to "the Note Trustee" will be construed as references to
the Master Issuer Security Trustee):
(i) Clause 13 (Investment by Note Trustee);
(ii) Clause 14 (Remuneration and indemnification of the Note
Trustee);
(iii) Clause 15 (Supplement to Trustee Acts);
(iv) Clause 16 (Note Trustee's liability);
(v) Clause 17 (Note Trustee contracting with Master Issuer and
others);
(vi) Clause 21 (Eligibility and Disqualification; New Note Trustee);
(vii) Clause 22 (Note Trustee's retirement and removal); and
(viii) Clause 23 (Note Trustee's powers to be additional).
(b) Clause 14 (Remuneration and indemnification of the Note Trustee) of the
Master Issuer Trust Deed will be amended so that:
(i) the last sentence of clause 14.1(a) is deleted and replaced by
the following:
"Such remuneration shall accrue from day to day and be payable
up to and including the date when the Master Issuer Security
Period has expired and the Master Issuer Security Trustee has
released, reassigned and/or discharged the Master Issuer
Charged Property from the Master Issuer Security as provided
under this Deed."; and
(ii) each of the references to the Master Issuer Security Trustee in
clauses 14.5, 14.6 and 14.7 include a reference to any Receiver
appointed by the Master Issuer Security Trustee.
(c) The following words shall be added to the end of clause 15(x)(ii)
before the final full stop:
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", provided that if the Master Issuer Security Trustee is required to
appoint an administrative receiver pursuant to clause 8.2
(Administrative receiver) of the Master Issuer Deed of Charge, the
Master Issuer Security Trustee agrees that it is adequately indemnified
and secured in respect of such appointment by virtue of its rights
against the Master Issuer under the Master Issuer Deed of Charge and
the security that it has in respect of such rights."
13.2 NO TRANSFER OF OBLIGATIONS
Notwithstanding anything else in this Deed, the Master Issuer Security
Trustee does not assume and will not be obliged to perform any
obligations of any other Party.
13.3 NO OBLIGATION TO INSURE
The Master Issuer Security Trustee shall not be under any obligation to
insure in respect of any of the Master Issuer Charged Property or to
require any other person to maintain any such insurance.
14. MASTER ISSUER SECURITY POWER OF ATTORNEY
Immediately upon execution of this Deed, the Master Issuer will execute
and deliver to the Master Issuer Security Trustee the Master Issuer
Security Power of Attorney. The Master Issuer Security Trustee confirms
that it may exercise the powers conferred under the Master Issuer
Security Power of Attorney if:
(a) the Master Issuer Security has become enforceable;
(b) it considers such action necessary for the protection or
preservation of the Attorney's (as defined in the Power of
Attorney) interests and rights in and to the Master Issuer
Charged Property; and/or
(c) it considers such action ought to be done under the covenants,
undertakings and provisions contained in this Deed.
15. FURTHER ASSURANCES
The Master Issuer must, at its own expense, take whatever action the
Master Issuer Security Trustee or a Receiver may require for:
(a) creating, perfecting or protecting any security intended to be
created by this Deed; or
(b) facilitating the realisation of any Master Issuer Charged
Property, or the exercise of any right, power or discretion
exercisable, by the Master Issuer Security Trustee or any
Receiver or any of its delegates or sub-delegates in respect of
any Master Issuer Charged Property.
This includes:
(i) the execution of any transfer, conveyance, assignment or
assurance of any property, whether to the Master Issuer
Security Trustee or to its nominee; or
(ii) the giving of any notice, order or direction and the making of
any registration,
which, in any such case, the Master Issuer Security Trustee may think
expedient.
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16. ADDITIONAL PROVISIONS RELATING TO THE MASTER ISSUER SECURITY
16.1 CONTINUING SECURITY
The Master Issuer Security will remain in force as continuing security
for the Master Issuer Secured Liabilities notwithstanding any
settlement of account or the existence at any time of a credit balance
on any Master Issuer Account or other account or any other act, event
or matter.
16.2 NO MERGER
The Master Issuer Security is in addition to, and will not be merged
in, or in any way exclude or prejudice any other Security Interest or
other right which the Master Issuer Security Trustee or any other
Master Issuer Secured Creditor may now or at any time have (or would
apart from the Master Issuer Security have) as regards the Master
Issuer or any other person in respect of the Master Issuer Secured
Liabilities.
16.3 AVOIDANCE OF SECURITY OR PAYMENT
(a) If an amount paid to the Master Issuer Security Trustee, the
Noteholders or any of the other Master Issuer Secured Creditors under a
Master Issuer Transaction Document is capable of being avoided or
reduced by virtue of any provisions or enactments relating to
bankruptcy, insolvency or liquidation for the time being in force or
otherwise, then that amount will not be considered to have been
irrevocably paid for the purposes of this Deed.
(b) Any settlement, discharge or release between the Master Issuer and the
Master Issuer Security Trustee (or any Receiver) will be conditional
upon no security or payment granted or made to the Master Issuer
Security Trustee (or any Receiver, as the case may be) by the Master
Issuer or any other person being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency or
liquidation for the time being in force.
(c) If any security or payment is avoided or reduced in the circumstances
described in paragraph (a) above, then the Master Issuer Security
Trustee (or any Receiver, as the case may be) will be entitled to
recover the value or amount of such security or payment from the Master
Issuer as if the relevant settlement, discharge or release had not
occurred.
16.4 RETENTION OF MASTER ISSUER SECURITY
(a) If the Master Issuer Security Trustee has grounds for believing that
the Master Issuer may be unable to pay its debts as they fall due as at
the date of any payment made by the Master Issuer to the Master Issuer
Security Trustee, the Noteholders or any of the other Master Issuer
Secured Creditors, then the Master Issuer Security Trustee may retain
the Master Issuer Security until the expiry of a period of (subject to
paragraph (b) below) one month plus the statutory period within which
any assurance, security, guarantee or payment can be avoided or
invalidated after the payment and discharge in full of all Master
Issuer Secured Liabilities notwithstanding any release, settlement,
discharge or arrangement which may be given or made by the Master
Issuer Security Trustee on, or as a consequence of, such payment or
discharge of liability.
(b) If, at any time within the period referred to in paragraph (a) above,
any person presents a petition, or files documents with a court or any
registrar for the winding-up or administration of the Master Issuer or
any analogous proceedings are commenced by or against the Master
Issuer, the Master Issuer Security Trustee may continue to retain the
Master Issuer Security for such further period as it
28
may determine and the Master Issuer Security will be deemed to continue
to be held as security for the payment and discharge to the Master
Issuer Security Trustee of all of the Master Issuer Secured
Liabilities.
16.5 CHANGE OF NAME, ETC.
This Deed will remain valid and enforceable notwithstanding any change
in the name, composition or constitution of the Master Issuer Security
Trustee or the Master Issuer or any merger, amalgamation or
consolidation by the Master Issuer Security Trustee or the Master
Issuer with any other corporation.
16.6 NEGATIVE PLEDGE
The Master Issuer shall not, save for the Master Issuer Security, or
with the prior written consent of the Master Issuer Security Trustee,
or unless otherwise permitted under any of the Master Issuer
Transaction Documents, create or permit to subsist any Security
Interest whatsoever, however created or arising (unless arising by
operation of law) over any of its property, assets or undertakings
present or future (including any uncalled capital) or any interest,
estate, right, title or benefit therein or use, invest or dispose of,
including by way of sale or the grant of any Security Interest of
whatsoever nature or otherwise deal with, or agree or attempt or
purport to sell or otherwise dispose of (in each case whether by one or
a series of transactions) or grant any option or right to acquire any
such property, assets or undertaking present or future.
17. SET-OFF
(a) The Master Issuer Security Trustee may at any time following a Note
Event of Default (without notice and notwithstanding any settlement of
account or other matter):
(i) combine or consolidate all or any existing accounts of the
Master Issuer whether in its own name or jointly with others
and held by it or any Master Issuer Secured Creditor;
(ii) set-off or transfer all or any part of any credit balance or
any sum standing to the credit of any account referred to in
paragraph (a) above (whether or not the same is due to the
Master Issuer from the Master Issuer Security Trustee or
relevant Master Issuer Secured Creditor and whether or not the
credit balance and the account in debit or the Master Issuer
Secured Liabilities are expressed in the same currency) in or
towards satisfaction of any of the Master Issuer Secured
Liabilities; and/or
(iii) in its discretion, estimate the amount of any liability of the
Master Issuer which is contingent or unascertained and set-off
such estimated amount.
(b) No amount will be payable by the Master Issuer Security Trustee to the
Master Issuer unless and until all Master Issuer Secured Liabilities
have been ascertained and fully repaid or discharged.
18. RELEASE
18.1 UPON DISCHARGE OF MASTER ISSUER SECURED LIABILITIES
At the end of the Master Issuer Security Period, the Master Issuer
Security Trustee will, at the cost of the Master Issuer, take whatever
action is necessary to release the Master Issuer Charged Property from
the Master Issuer Security to, or to the order of, the Master Issuer.
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18.2 AUTHORISED INVESTMENTS
Upon the Master Issuer or the Master Issuer Cash Manager on its behalf
making a disposal of an Authorised Investment charged under this Deed
and provided that the proceeds of such disposal are paid into the
Master Issuer Transaction Account in accordance with the terms of this
Deed and the Master Issuer Cash Management Agreement, such Authorised
Investment will be deemed to be released from the Master Issuer
Security the Master Issuer Security Trustee will, at the request and
cost of the Master Issuer take whatever action is necessary to release
that Authorised Investment from the Master Issuer Security.
18.3 MASTER ISSUER ACCOUNTS
For the avoidance of doubt, all amounts which the Master Issuer Cash
Manager (on behalf of the Master Issuer and the Master Issuer Security
Trustee or its appointee) is permitted to withdraw from the Master
Issuer Transaction Account pursuant to Clause 6.2 (Priority of payments
for Master Issuer Revenue Receipts - prior to enforcement and
acceleration) and Clause 6.3 (Priority of payments of Master Issuer
Principal Receipts - prior to enforcement and acceleration) will be
deemed to be released from the Master Issuer Security upon the relevant
withdrawal provided that, where the relevant amount is transferred to
another Master Issuer Account, it will become subject to the Master
Issuer Security in respect of that other Master Issuer Account.
18.4 NO LIABILITY FOR LOSS
The Master Issuer Security Trustee will not be liable to the Master
Issuer or any other person for any loss, costs, claims or liabilities
arising in connection with its acting upon a request made under this
Clause and/or any release made under this Clause.
19. MASTER ISSUER REPRESENTATIONS
19.1 TITLE
The Master Issuer represents to the Master Issuer Security Trustee that
it is the beneficial owner of the Master Issuer Charged Property and
the Master Issuer Charged Property are free of any Security Interests
(except for those created by or under this Deed) and any other rights
or interests (including any licences) in favour of third parties.
19.2 NO RESTRICTION
As at the Closing Date, none of its property, assets and/or undertaking
are subject to any restriction (whether contractual or otherwise) that
may render the Security Interests granted by the Master Issuer under
this Deed ineffective or which otherwise prohibit the grant of such
Security Interests.
19.3 STEPS TAKEN
The Master Issuer represents to the Master Issuer Security Trustee that
it has taken all necessary steps to enable it to create the Master
Issuer Security in accordance with this Deed and has taken no actions
or steps which will or may prejudice its rights, title and interest in,
to and under the Master Issuer Charged Property.
19.4 MASTER ISSUER CHARGED DOCUMENTS
The Master Issuer represents to the Master Issuer Security Trustee
that:
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(a) each Master Issuer Charged Document is its legally binding,
valid, and enforceable obligation;
(b) it is not in default of any of its obligations under any Master
Issuer Charged Document;
(c) there is no prohibition on assignment in any Master Issuer
Charged Document; and
(d) its entry into and performance of this Deed will not conflict
with any term of any Master Issuer Charged Document.
19.5 NATURE OF SECURITY
The Master Issuer represents to the Master Issuer Security Trustee that
this Deed creates those Security Interests it purports to create and is
not liable to be amended or otherwise set aside on its liquidation or
administration or otherwise, except that Security Interests expressed
to be fixed may take effect as floating charge security.
19.6 UNITED STATES ACTIVITIES
The Master Issuer represents to the Master Issuer Security Trustee that
it will not engage in any activities in the United States (directly or
through agents), will not derive any income from United States sources
as determined under United States income tax principles and will not
hold any property if doing so would cause it to be engaged or deemed to
be engaged in a trade or business within the United States as
determined under United States tax principles.
19.7 CENTRE OF MAIN INTERESTS AND ESTABLISHMENT
(a) The Master Issuer represents to the Master Issuer Security Trustee that
its "centre of main interests" for the purposes of the Insolvency
Regulation and the UNCITRAL Implementing Regulations is in England and
it does not have any "establishment" (as defined in the Insolvency
Regulation and the UNCITRAL Implementing Regulations) other than in
England.
(b) The Master Issuer undertakes to conduct its business and affairs such
that, at all relevant times, its "centre of main interests" for the
purposes of the Insolvency Regulation and the UNCITRAL Implementing
Regulations will be and remain in England and it will not have any
"establishment" (as defined in the Insolvency Regulation and the
UNCITRAL Implementing Regulations) other than in England.
19.8 TIMES FOR MAKING REPRESENTATIONS
(a) The representations set out in this Deed (including in this Clause) are
made on the date of this Deed.
(b) Unless a representation is expressed to be given at a specific date,
each representation under this Deed is deemed to be repeated by the
Master Issuer on each date during the Master Issuer Security Period.
(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
20. EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the Master
Issuer Security, any statement (which will contain information in
reasonable detail in support thereof) as to:
31
(a) any amount due to any Master Issuer Secured Creditor;
(b) all or any part of the Master Issuer Secured Liabilities; or
(c) any amounts which have been notified to the Master Issuer
Security Trustee as being amounts due to any Master Issuer
Secured Creditor,
in each case, which is certified as being correct by an officer of the
Master Issuer Security Trustee or an officer of the relevant Master
Issuer Secured Creditor will be conclusive evidence that such amount is
in fact due and payable.
21. RIGHTS CUMULATIVE
The respective rights of the Master Issuer Security Trustee and any
Receiver under this Deed:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of
that right.
22. SEVERABILITY
If a term of this Deed is or becomes illegal, invalid or unenforceable
in any jurisdiction, that will not affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other term of this Deed; or
(b) the legality, validity or enforceability in any other
jurisdiction of that or any other term of this Deed.
23. COUNTERPARTS
This Deed may be executed and delivered in any number of counterparts
(including by facsimile), all of which, taken together, shall
constitute one and the same deed and any Party may enter into the same
by executing and delivering a counterpart (including by facsimile).
24. NOTICES
24.1 IN WRITING
Any communication in connection with this Deed must be in writing and,
unless otherwise stated, may be given in person, by post or by fax.
Unless it is agreed to the contrary, any consent or agreement required
under this Deed must be given in writing.
24.2 PARTY DETAILS
The contact details of each Party for all communications in connection
with this Deed are those set out below:
32
(a) MASTER ISSUER: Permanent Master Issuer PLC
▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: Secretary
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
(b) MASTER ISSUER SECURITY The Bank of New York
TRUSTEE AND NOTE TRUSTEE: ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: Global Corporate Trust
Administration
Facsimile: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇/6399
(c) PRINCIPAL PAYING AGENT, Citibank, N.A.
REGISTRAR, TRANSFER AGENT Citigroup Centre, Canada Square,
AND AGENT BANK: ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: Agency and Trust
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
(d) U.S. PAYING AGENT: Citibank, N.A. ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For the attention of: Agency and Trust
Facsimile: ▇▇ (▇▇▇) ▇▇▇▇▇▇▇
(e) MASTER ISSUER SWAP PROVIDERS:
Master Issuer Swap Provider: Deutsche Bank AG, London Branch
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
For the attention of: Legal Department
Telex No: 411836 or 416731 or 41233
Master Issuer Swap Provider: Credit Suisse International
One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
For the attention of: Head of Credit Risk Management
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
For the attention of: Global Head of OTC Operations,
Operations Department
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
For the attention of: General Counsel Europe - Legal and
Compliance Department
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
Master Issuer Swap Provider: Barclays Bank PLC
▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
33
For the attention of: Derivatives Director, Legal
Division (marked Urgent)
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
(f) MASTER ISSUER Halifax plc
CASH MANAGER: ▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇/▇/▇/▇▇▇)
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: The Head of Mortgage
Securitisation
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
with a copy to: HBOS Treasury Services PLC
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
For the attention of The Head of Mortgage
Securitisation and Covered Bonds
(g) MASTER ISSUER Bank of Scotland
ACCOUNT BANK: Leeds Business Centre
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇
For the attention of: The Corporate Banking Channel
Support
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
with a copy to: Halifax PLC
▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇/▇/▇/▇▇▇)
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Facsimile: ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
For the attention of: The Head of Mortgages
Securitisation
and with a copy to: HBOS Treasury Services PLC
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
For the attention of: The Head of Mortgages
Securitisation and Covered Bonds
(h) MASTER ISSUER Structured Finance Management
Limited
CORPORATE SERVICES PROVIDER: ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of: The Directors
Facsimile: ▇▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇
34
24.3 CHANGES
Any party may change its contact details by giving five London Business
Days' notice to the other parties.
24.4 EFFECTIVENESS
(a) Except as provided below, any notice in connection with this Deed will
be deemed to be given as follows:
(i) if delivered in person, at the time of the delivery;
(ii) if posted, five days after being deposited in the post, postage
prepaid, in a correctly addressed envelope; and
(iii) if by fax, when received in legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
25. LANGUAGE
(a) Any notice given in connection with this Deed must be in English.
(b) Any other document provided in connection with this Deed must be:
(i) in English; or
(ii) accompanied by a certified English translation. In this case,
the English translation prevails unless the document is a
statutory or other official document.
26. LAW AND JURISDICTION
26.1 GOVERNING LAW
This Deed and all matters arising out of or in connection with it shall
be governed by, and construed in accordance with, English law (provided
that any terms of this Agreement which are particular to Scots law
shall be continued in accordance with the laws of Scotland).
26.2 SUBMISSION TO JURISDICTION
The Master Issuer irrevocably agrees for the benefit of the Master
Issuer Security Trustee and the other Master Issuer Secured Creditors
that the English courts have exclusive jurisdiction to settle any
dispute which may arise out of or in connection with this Deed and
accordingly submits to the exclusive jurisdiction of the English
courts. The Master Issuer waives any objection to the courts of England
on the grounds that they are an inconvenient or inappropriate forum.
The Master Issuer Security Trustee and the other Master Issuer Secured
Creditors may take any suit, action or proceeding arising out of or in
connection with this Deed (together referred to as PROCEEDINGS) against
the Master Issuer in any other court of competent jurisdiction and
concurrent Proceedings in any number of jurisdictions.
35
26.3 WAIVER OF TRIAL BY JURY
Each party waives any right it may have to a jury trial of any claim or
cause of action in connection with any finance document or any
transaction contemplated by any finance document. This deed may be
filed as a written consent to trial by court.
27. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a Party has no rights under the Contracts (Rights
of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of these presents, but
this does not affect any right or remedy of a third party which exists
or is available apart from that Act.
THIS DEED has been executed as a deed by each of the parties and delivered on
the date stated at the beginning of this Deed.
THE MASTER ISSUER
EXECUTED as a DEED by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
PERMANENT MASTER ISSUER PLC )
acting by )
Director
Director/Secretary
THE MASTER ISSUER SECURITY TRUSTEE
EXECUTED and DELIVERED as a DEED by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE BANK OF NEW YORK )
acting by its authorised signatory )
Authorised Signatory:
THE NOTE TRUSTEE
EXECUTED and DELIVERED as a DEED by ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
THE BANK OF NEW YORK )
acting by its authorised signatory )
Authorised Signatory:
36
PRINCIPAL PAYING AGENT
EXECUTED as a DEED on behalf of ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CITIBANK N.A., a company incorporated in )
the United States of America )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority of
the company
REGISTRAR
EXECUTED as a DEED on behalf of ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CITIBANK N.A., a company incorporated in )
the United States of America )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority of
the company
TRANSFER AGENT
EXECUTED as a DEED on behalf of ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CITIBANK N.A., a company incorporated in )
the United States of America )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority of
the company
AGENT BANK
EXECUTED as a DEED on behalf of ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CITIBANK N.A., a company incorporated in )
the United States of America )
by )
being a person who, in accordance with the laws
of that territory, is acting under the authority of
the company
37
MASTER ISSUER SWAP PROVIDER
EXECUTED as a DEED by ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
DEUTSCHE BANK AG, ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LONDON BRANCH )
acting by its duly authorised attorney )
By:
Name:
Witness Signature: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
Name:
Address
MASTER ISSUER SWAP PROVIDER
EXECUTED as a DEED by ) /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CREDIT SUISSE INTERNATIONAL ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
acting by its duly authorised attorney )
By:
Name:
Witness Signature: /s/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address
MASTER ISSUER SWAP PROVIDER
EXECUTED as a DEED by ) /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
BARCLAYS BANK PLC )
acting by its duly authorised attorney )
By:
Name:
Witness Signature: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
Address
MASTER ISSUER CASH MANAGER
EXECUTED as a DEED by ) /s/ ▇▇▇ ▇▇▇▇▇▇▇
HALIFAX ) /s/ Tamarpal Takk
acting by its duly authorised attorney )
38
By:
Name:
Witness Signature:
Name:
Address
MASTER ISSUER ACCOUNT BANK
EXECUTED as a DEED by ) /s/ ▇▇▇ ▇▇▇▇▇▇▇
THE GOVERNOR AND COMPANY OF ) /s/ Tamarpal Takk
THE BANK OF SCOTLAND )
acting by its duly authorised attorney )
By:
Name:
Witness Signature:
Name:
Address
MASTER ISSUER CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by ) /s/ ▇▇ ▇▇▇▇▇▇▇
STRUTURED FINANCE MANAGEMENT ) /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LIMITED )
acting by two directors )
Witness Signature:
Name:
Address
39
SCHEDULE 1
FORM OF NOTICE OF CHARGE
From: Permanent Master Issuer PLC (the MASTER ISSUER)
To: [Relevant party name[s]]
Copy: The Bank of New York (the MASTER ISSUER SECURITY TRUSTEE)
[date]
Dear Sirs,
We hereby give you notice that by a deed of charge dated [date] and made
between the Master Issuer, the Master Issuer Security Trustee and others (the
MASTER ISSUER DEED OF CHARGE), the Master Issuer charged to the Master Issuer
Security Trustee all of its right, title, interest and benefit, present and
future, in, to and under the [insert relevant agreement name[s]] dated [insert
date] (each as defined in the Master Issuer Master Definitions and Construction
Schedule signed on the date hereof by, inter alios, the Master Issuer and the
[relevant party name[s]] and made, in each case, between, amongst others, the
Master Issuer and the [relevant party name[s]].
You are authorised and instructed henceforth to deal with the Master Issuer
Security Trustee in relation to our rights (but not our obligations) under the
[insert relevant agreement name[s]] without further reference to us.
This notice is irrevocable. Please acknowledge receipt of this notice to the
Master Issuer Security Trustee on the attached Consent to Charge.
Yours faithfully,
..............................
For and on behalf of
PERMANENT MASTER ISSUER PLC
40
SCHEDULE 2
FORM OF CONSENT TO CHARGE
From: [Relevant Party Name[s]]
To: The Bank of New York (the MASTER ISSUER SECURITY TRUSTEE)
Permanent Master Issuer PLC (the MASTER ISSUER)
[date]
Dear Sirs,
We hereby acknowledge receipt of the notice of charge dated [date] relating to
the Master Issuer Deed of Charge (as defined therein) as adequate notice of the
charge described therein.
We agree to deal only with the Master Issuer Security Trustee in relation to
the Master Issuer's rights (but not its obligations) under the [relevant
agreement name[s]] referred to, and as defined in, such notice without any
reference to the Master Issuer.
We have not received from any other person any notice of charge of or any
interest in the [relevant agreement name[s]].
Yours faithfully,
..............................
For and on behalf of
[Relevant party name]
..............................
For and on behalf of
[Relevant party name]
41
SCHEDULE 3
FORM OF ACCESSION DEED
THIS DEED is made on [date]
BETWEEN
(1) PERMANENT MASTER ISSUER PLC, a company incorporated in England and
Wales with limited liability (registered number 5922774), and having
its registered office at ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
MASTER ISSUER);
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
offices at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its
capacity as the MASTER ISSUER SECURITY TRUSTEE, which expression
includes such company and all other persons or companies for the time
being acting as security trustee or security trustees under this Deed);
(3) THE BANK OF NEW YORK, a New York banking corporation acting through its
offices at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (acting in
its capacity as the NOTE TRUSTEE, which expression includes such
company and all other persons or companies for the time being acting as
trustee or trustee for the Noteholders under the Note Trust Deed);
(4) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting
in its capacity as the PRINCIPAL PAYING AGENT);
(5) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting
in its capacity as the REGISTRAR);
(6) TRANSFER AGENT, Citibank, N.A., London Branch of Citigroup Centre,
Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, in its capacity as the
TRANSFER AGENT appointed by the Master Issuer under the Master Issuer
Paying Agent and Agent Bank Agreement to administer the transfer of
Notes;
(7) CITIBANK N.A., a national association acting through its offices at
Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting
in its capacity as the AGENT BANK);
(8) CITIBANK N.A., a national association acting through its offices at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (acting in its
capacity as the U.S. PAYING AGENT);
(9) DEUTSCHE BANK AG, LONDON BRANCH, a corporation domiciled in Frankfurt
am Main, Germany, operating in the United Kingdom under branch
registration number BR000005, acting through its London branch at
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (acting
in its capacity as a MASTER ISSUER SWAP PROVIDER in respect of the
2006-1 Notes);
(10) CREDIT SUISSE INTERNATIONAL, a private unlimited company incorporated
in England and Wales (registered number 2500199), and acting through
its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its capacity
as a MASTER ISSUER SWAP PROVIDER in respect of the 2006-1 Notes);
(11) BARCLAYS BANK PLC, a public limited company incorporated in England and
Wales with limited liability (registered number 1026167), and acting
through its office at 5 ▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (acting in its capacity as a MASTER ISSUER
SWAP PROVIDER in respect of the 2006-1 Notes);
(12) HALIFAX PLC, a public limited company incorporated in England and Wales
with limited liability (registered number 02367076), and having its
registered office at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
MASTER ISSUER CASH MANAGER);
(13) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a company established
by an Act of the Parliament of Scotland in 1695, and acting through its
offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇ (the MASTER ISSUER
ACCOUNT BANK); and
(14) STRUCTURED FINANCE MANAGEMENT LIMITED, a company incorporated in
England and Wales, with limited liability (registered number 3853947),
and having its registered office at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ (▇▇▇ MASTER ISSUER CORPORATE SERVICES PROVIDER).
(15) [Any other additional of Master Issuer Secured Creditor.]
(16) [ ] (the "NEW MASTER ISSUER SECURED CREDITOR").
NOW THIS DEED WITNESSES AS FOLLOWS
WHEREAS
(A) Pursuant to the terms of a [describe agreement] (the "AGREEMENT") dated
[date] made between the Master Issuer and the New the Master Issuer
Secured Creditor, the Master Issuer has agreed to [describe nature of
the obligations of the Master Issuer under the Agreement].
(B) The Master Issuer has agreed to provide the Master Issuer Security
Trustee with the benefit of the security described in the Master Issuer
Deed of Charge to secure the Master Issuer's obligations to the Master
Issuer Secured Creditors.
(C) The terms of the Master Issuer Deed of Charge permit the Master Issuer
to secure its obligations to a New Master Issuer Secured Creditor
thereunder.
(D) The New Master Issuer Secured Creditor has agreed to enter into this
Deed to accede to the provisions of the Master Issuer Deed of Charge.
(E) The Master Issuer Secured Creditors have agreed to enter into this Deed
to, among other things, acknowledge and agree to such accession and to
permit any consequential changes to the Master Issuer Priority of
Payments set out in Clauses 6 (and to the Schedule 2 of the Master
Issuer Cash Management Agreement referred to therein) and 7 of the
Master Issuer Deed of Charge as are required and any other amendment as
may be required to give effect to this Deed.
1. INTERPRETATION
The Master Issuer master definitions and construction schedule signed
for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ and Sidley Austin
on 17 October 2006 (as the same may be amended, varied or supplemented
from time to time with the consent of the parties to this Deed) (the
MASTER ISSUER MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) are
expressly and specifically incorporated into this Deed and,
accordingly, the expressions defined in the Master Issuer Master
Definitions and Construction Schedule shall, except where the context
otherwise requires and save where otherwise defined herein, have the
same meanings in this Deed, including the Recitals hereto
43
and this Deed shall be construed in accordance with the interpretation
provisions set out in Clause 2 of the Master Issuer Master Definitions
and Construction Schedule.
2. REPRESENTATIONS AND WARRANTIES
2.1 The New Master Issuer Secured Creditor hereby represents and warrants
to the Master Issuer Security Trustee and each of the Master Issuer
Secured Creditors in respect of itself that as of the date of this
Deed:
(a) pursuant to the terms of the Agreement, the Master Issuer has
agreed to pay to the New Master Issuer Secured Creditor the
amount (if any) [describe in relation to the Agreement]; and
(b) the Agreement expressly provides that all amounts due from the
Master Issuer thereunder are to be secured by the Master Issuer
Deed of Charge.
2.2 [the Master Issuer hereby represents and warrants to the Master Issuer
Security Trustee and each of the Master Issuer Secured Creditors that
as at the date of this Deed, the conditions to incurring further Master
Issuer Secured Liabilities are satisfied.
3. ACCESSION
In consideration of the New Master Issuer Secured Creditor being
accepted as a Master Issuer Secured Creditor for the purposes of the
Master Issuer Deed of Charge by the parties thereto as from the date of
this Deed, the New Master Issuer Secured Creditor:
(a) confirms that as from [date], it intends to be a party to the
Master Issuer Deed of Charge as a Master Issuer Secured
Creditor;
(b) undertakes to comply with and be bound by all of the provisions
of the Master Issuer Master Issuer Master Definitions and
Construction Schedule (as the same may be amended, varied or
restated from time to time) and the Master Issuer Deed of
Charge in its capacity as a Master Issuer Secured Creditor, as
if it had been an original party thereto;
(c) undertakes to perform comply with and be bound by all of the
provisions of the Master Issuer Deed of Charge in its capacity
as a Master Issuer Secured Creditor, as if it had been an
original party thereto as provided in Clause 4.5 (Master Issuer
Secured Creditors) (including without limitation Clauses 6
(Payments out of the Master Issuer Accounts Prior to
Acceleration) and 7 (Payments out of the Master Issuer Accounts
Upon Acceleration); and
(d) agrees that the Master Issuer Security Trustee shall be the
Master Issuer Security Trustee of the Master Issuer Deed of
Charge for all Master Issuer Secured Creditors upon and subject
to the terms set out in the Master Issuer Deed of Charge.
4. SCOPE OF THE MASTER ISSUER DEED OF CHARGE
The Master Issuer, the New Master Issuer Secured Creditor and the
Master Issuer Security Trustee hereby agree that for relevant purposes
under the Master Issuer Deed of Charge and the Master Issuer Master
Definitions and Construction Schedule:
(a) the Agreement shall be a Master Issuer Transaction Document;
and
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(b) the New Master Issuer Secured Creditor shall be a Master Issuer
Secured Creditor.
5. [AMENDMENT TO THE MASTER ISSUER PRIORITY OF PAYMENTS
The Master Issuer Secured Creditors agree to amend and restate the
Master Issuer Priority of Payments set out in Schedule 2 of the Master
Issuer Cash Management Agreement and Clauses 6 and 7 of the Master
Issuer Deed of Charge in accordance with Appendix 1 hereto.]
6. APPLICATION
Prior to and following enforcement of the Master Issuer Security all
amounts at any time held by the Master Issuer, the Master Issuer Cash
Manager or the Master Issuer Security Trustee in respect of the
security created under this Deed shall be held and/or applied by such
person subject to and in accordance with the relevant provisions of the
Master Issuer Cash Management Agreement or the Master Issuer Deed of
Charge.
7. NOTICES AND DEMANDS
Any notice or communication under or in connection with this Deed, the
Master Issuer Deed of Charge or the Master Issuer Master Definitions
Schedule shall be given in the manner and at the times set out in
Clause 24 (Notices) of the Master Issuer Deed of Charge to the
addresses given in this Clause or at such other address as the
recipient may have notified to the other parties hereto and/or thereto
in writing.
The address referred to in this Clause 7 for the New Master Issuer
Secured Creditor is:
[name and address]
For the attention of: [ ]
Telephone: [ ]
Facsimile: [ ]
or such other address and/or numbers as the New Master Issuer Secured
Creditor may notify to the parties to the Master Issuer Deed of Charge
in accordance with the provisions thereof.
8. CHOICE OF LAW
This Deed is governed by and shall be construed in accordance with
English law.
DULY EXECUTED AND DELIVERED AS A DEED by each of the parties hereto or
on its behalf on the date appearing on page 1.
MASTER ISSUER
EXECUTED as a DEED by )
PERMANENT MASTER ISSUER PLC )
acting by )
Director
Director/Secretary
45
MASTER ISSUER SECURITY TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
acting by its authorised signatory )
Authorised signatory )
NOTE TRUSTEE
EXECUTED as a DEED by )
THE BANK OF NEW YORK )
acting by its authorised signatory )
Authorised signatory )
PRINCIPAL PAYING AGENT
EXECUTED as a DEED on behalf of )
CITIBANK N.A., a company incorporated )
In the United States of America )
by )
being a person who, in
accordance with the laws
of that territory, is acting under
the authority of
the company
REGISTRAR
EXECUTED as a DEED on behalf of )
CITIBANK N.A., a company incorporated )
In the United States of America )
by )
being a person who, in
accordance with the laws
of that territory, is acting under
the authority of
the company
46
TRANSFER AGENT
EXECUTED as a DEED on behalf of )
CITIBANK N.A., a company incorporated )
In the United States of America )
by )
being a person who, in
accordance with the laws
of that territory, is acting under
the authority of
the company
AGENT BANK
EXECUTED as a DEED on behalf of )
CITIBANK N.A., a company incorporated )
In the United States of America )
by )
being a person who, in
accordance with the laws
of that territory, is acting under
the authority of
the company
U.S. PAYING AGENT
EXECUTED as a DEED by )
CITIBANK N.A. )
signed for and on its behalf by one of its )
duly authorised attorneys/signatories )
being a person who, in
accordance with the laws
of that territory, is acting
under the authority of the company
47
THE MASTER ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
DEUTSCHE BANK AG )
acting by its duly authorised attorney )
By:
Name:
Witness Signature:
Name:
Address
THE MASTER ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
CREDIT SUISSE INTERNATIONAL )
signed for and on its behalf by one of its )
duly authorised attorneys/signatories )
By:
Name:
Witness Signature:
Name:
Address
THE MASTER ISSUER SWAP PROVIDER
EXECUTED as a DEED by )
BARCLAYS BANK PLC )
acting by its duly )
authorised attorney )
By:
Name:
Witness Signature:
Name:
Address
48
THE MASTER ISSUER CASH MANAGER
EXECUTED as a DEED by )
HALIFAX PLC )
acting by its duly authorised attorney )
By:
Name:
Witness Signature:
Name:
Address
THE MASTER ISSUER ACCOUNT BANK
EXECUTED as a DEED by )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
acting by its duly authorised attorney )
By:
Name:
Witness Signature:
Name:
Address
MASTER ISSUER CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
STRUCTURED FINANCE MANAGEMENT )
LIMITED )
acting by its duly authorised attorney )
By:
Name:
Witness Signature:
Name:
Address
49
NEW MASTER ISSUER SECURED CREDITOR
EXECUTED as a DEED by )
[ ] )
acting by )
directors/a director and the secretary )
Director
Director/Secretary
50
SCHEDULE 4
FORM OF MASTER ISSUER SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on 17 October 2006 by PERMANENT MASTER ISSUER
PLC (registered number 5922774) whose registered office is ▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇ PRINCIPAL).
WHEREAS:
(1) By virtue of a deed of charge (the MASTER ISSUER DEED OF CHARGE) dated
17 October 2006 between, inter alios, the Principal, the Master Issuer
Security Trustee, the Note Trustee, the Agent Bank, the Principal
Paying Agent, the Registrar, the Transfer Agent, the Master Issuer Cash
Manager, the Master Issuer Account Bank, the Master Issuer Corporate
Services Provider and the Master Issuer Swap Providers (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 Master 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 Master 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 Master 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 Master Issuer Charged
Property or which ought to be done under the covenants, undertakings
and provisions contained in the Master Issuer Deed of Charge on or at
any time after the service of a Note Acceleration Notice or in any
other circumstances where the Attorney has become entitled to take the
steps referred to in Clauses 9.4 (Power of sale) to 9.9 (Disposal of
Master Issuer Charged Property) (inclusive) of the Master 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
Master Issuer Security and/or the Master 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 Master
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
51
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.
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 (each as INDEMNIFIED PARTY) 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 Master Issuer Security
Trustee's Master Issuer Security and/or the Master 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 )
PERMANENT MASTER ISSUER PLC )
acting by its attorney )
in the presence of: )
(as attorney for PERMANENT MASTER ISSUER PLC)
Witness's Signature:................................
Name:...............................................
Address:............................................
52