References below to the Notes, the Global Note Certificates and the Individual Note Certificates representing such Notes are to each respective class of Notes.
Initial Issue of Notes
The Notes of each class sold in reliance on Regulation S under the Securities Act will be represented on issue by one or more permanent Global Note Certificates of such class in fully registered form without interest coupons or principal receipts attached (each a ‘‘Regulation S Global Note Certificate’’) deposited with a common depositary for Euroclear and Clearstream, Luxembourg. Beneficial interests in a Regulation S Global Note Certificate may be held only through Euroclear or Clearstream, Luxembourg at any time. See ‘‘Book-Entry Clearance Procedures’’. Beneficial interests in a Regulation S Global Note Certificate may not be held by a U.S. Person (as defined in Regulation S under the Securities Act) at any time. By acquisition of a beneficial interest in a Regulation S Global Note Certificate, the purchaser thereof will be deemed to represent, among other things, that it is not a U.S. Person, and that, if in the future it determines to transfer such beneficial interest, it will transfer such interest in accordance with the procedures and restrictions contained in the Regulation S Global Note Certificate. See ‘‘Transfer Restrictions’’.
The Notes of each class sold in reliance on Rule 144A under the Securities Act will be represented on issue by one or more permanent Global Note Certificates of such class, in fully registered form without interest coupons or principal receipts attached (each a ‘‘Rule 144A Global Note Certificate’’), deposited with Deutsche Bank Trust Company Americas as custodian for, and registered in the name of Cede &
Co. as nominee of, DTC. Beneficial interests in a Rule 144A Global Note Certificate may only be held through DTC at any time. See ‘‘Book-Entry Clearance Procedures’’. Beneficial interests in a Rule 144A Global Note Certificate may only be held by persons who are QIBs, holding their interests for their own account or for the account of another QIB. By acquisition of a beneficial interest in a Rule 144A Global Note Certificate, the purchaser thereof will be deemed to represent, among other things, that it is a QIB and that, if in the future it determines to transfer such beneficial interest, it will transfer such interest in accordance with the procedures and restrictions contained in the Rule 144A Global Note Certificate. See
‘‘Transfer Restrictions’’.
The Regulation S Global Note Certificates and the Rule 144A Global Note Certificates are referred to herein as ‘‘Global Note Certificates’’. Beneficial interests in Global Note Certificates will be subject to certain restrictions on transfer set out therein and in the Note Trust Deed, and such Global Note Certificates will bear the applicable legends regarding the restrictions set out under ‘‘Transfer Restrictions’’.
No beneficial interest in a Regulation S Global Note Certificate may be transferred to a person who takes delivery in the form of a beneficial interest in a Rule 144A Global Note Certificate unless (i) the transfer is to a person that is a QIB, (ii) such beneficial interest is in a principal amount greater than or equal to
£50,000, (iii) such transfer is made in reliance on Rule 144A, and (iv) the transferor provides the Note Trustee and the Registrar with a written certification substantially in the form set out in the Note Trust Deed. No beneficial interest in the Rule 144A Global Note Certificates may be transferred to a person who takes delivery in the form of a beneficial interest in a Regulation S Global Note Certificate unless the transfer is to a non-U.S. person in an offshore transaction in reliance on Regulation S and the transferor provides the Note Trustee with a written certification substantially in the form set out in the Note Trust Deed.
Any beneficial interest in a Regulation S Global Note Certificate that is transferred to a person who takes delivery in the form of an interest in a Rule 144A Global Note Certificate will, upon transfer, cease to be an interest in such Regulation S Global Note Certificate and become an interest in the Rule 144A Global Note Certificate, and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in a Rule 144A Global Note Certificate for as long as it remains such an interest. Any beneficial interest in a Rule 144A Global Note Certificate that is transferred to a person who takes delivery in the form of an interest in a Regulation S Global Note Certificate will, upon transfer, cease to be an interest in a Rule 144A Global Note Certificate and become an interest in the Regulation S Global Note Certificate and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in a Regulation S Global Note Certificate for so long as it remains such an interest. No service charge will be made for any registration of transfer or exchange of Notes, but the Note Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Except in the limited circumstances described below, owners of beneficial interests in Global Note Certificates will not be entitled to receive physical delivery of Individual Note Certificates. The Notes will be issued in registered form and not in bearer form.
Amendments to Conditions
Each Global Note Certificate contains provisions that apply to the Notes that it represents, some of which modify the effect of the Conditions set out in this Prospectus. The following is a summary of those provisions:
Payments. Payments of principal and interest in respect of Notes represented by a Global Note Certificate will be made to or to the order of the Common Depository or its nominee as the registered owner thereof (and, in the case of final redemption of a Global Certificate or in circumstances where the unpaid Principal Amount of the related Global Certificate would be reduced to zero (including as a result of any other payment of principal due in respect of such Global Certificate), only upon surrender of such Global Certificate). On each occasion on which a payment of interest or principal is made in respect of a Global Note Certificate, the Issuer shall procure that the same is noted on the Register and, in the case of payment of principal, that the aggregate principal amount of the Global Note Certificate is decreased accordingly.
Notices. So long as any Notes are represented by a Global Note Certificate and such Global Note Certificate is held on behalf of a clearing system, notices to Noteholders may be given by delivery of the relevant notice to that clearing system for communication by it to entitled account holders in substitution for publication thereof as required by the Conditions of such Notes provided that, so long as such Notes are listed on the Irish Stock Exchange, such notice is also published in a daily leading newspaper with general circulation in Ireland (which is expected to be the Irish Times) and The Financial Times or, if either of such newspapers shall cease to be published or timely publication therein is not practicable, in such English language newspaper or newspapers as the Note Trustee may approve having a general circulation in Europe. Any such notice shall be deemed to have been given on the date of first publication or, if published more than once or on different dates, on the first date on which publication shall have been made in the newspaper or newspapers in which publication is required.
Prescription. Claims against the Issuer in respect of principal and interest on the Notes while the Notes are represented by a Global Note Certificate will become void unless presented for payment within a period of ten years from the appropriate relevant date.
Meetings. The holder of each Global Note Certificate will be treated as being two persons for the purposes of any quorum requirements of, or the right to demand a poll at, a meeting of Noteholders and, at any such meeting, as having one vote in respect of each £50,000 in principal amount for which the relevant Global Note Certificate may be exchanged.
Note Trustee’s Powers. While the Global Note Certificates are held on behalf of a clearing system, the Note Trustee may have regard to any information provided to it by such clearing system or its operator.
Purchase and Cancellation. Cancellation of any Note required by the Conditions to be cancelled will be effected by reduction in the principal amount of the applicable Global Note Certificate. For so long as any Notes are represented by a Global Note Certificate, such Notes will be transferable in accordance with the rules and procedures for the time being of Euroclear or Clearstream, Luxembourg or DTC, as appropriate.
Exchange for Individual Note Certificates Exchange
Each Global Note Certificate will be exchangeable, free of charge to the holder, on or after its Individual Exchange Date (as defined below), in whole but not in part, for certificates in Individual Note Certificate form:
(a) if a Global Note Certificate is held (directly or indirectly) on behalf of Euroclear and/or Clearstream, Luxembourg or an alternative clearing system and any such clearing system is closed for business for a continuous period of 14 days (other than by reason of holiday, statutory or otherwise) or announces that it is permanently to cease business or does in fact do so; or
(b) if the Global Note Certificate is held on behalf of DTC and DTC notifies the relevant Issuer that it is no longer willing to discharge properly its responsibilities as depositary with respect to the relevant Global Note Certificate or DTC ceases to be a ‘‘clearing agency’’ registered under the United States Securities Exchange Act of 1934, as amended or is at any time no longer eligible to act as such, and the Issuer is unable to locate a qualified successor within 90 days of receiving notice of such ineligibility on the part of DTC; or
(c) if the Issuer or any Paying Agent or any other person is or will be required to make any withholding or deduction from any payment in respect of the Notes for or on account of any present or future taxes, duties, assessments or governmental charges of whatever nature or the Issuer suffers or will suffer any other disadvantage as a result of such change, which withholding or deduction would not be required or other disadvantage would not be suffered (as the case may be) if the Notes were in Individual Note Certificate form.
The Registrar will not register the transfer of, or exchange of interests in, a Global Note Certificate for Individual Note Certificates for a period of 15 calendar days ending on the date for any payment of principal or interest in respect of the Notes.
If only one of the Global Note Certificates (the ‘‘Exchanged Global Note Certificate’’) becomes exchangeable for Individual Note Certificates in accordance with the above paragraphs, transfers of Notes may not take place between, on the one hand, persons holding Individual Note Certificates issued in exchange for beneficial interests in the Exchanged Global Note Certificate and, on the other hand, persons wishing to purchase beneficial interests in the other Global Note Certificate.
‘‘Individual Exchange Date’’ means a day falling not less than 30 days after that on which the notice requiring exchange is given and on which banks are open for business in the city in which the specified office of the Registrar and any Transfer Agent is located.
Delivery
In such circumstances, the relevant Global Note Certificate will be exchanged in full for Individual Note Certificates and the Issuer will, at the cost of the Issuer (but against such indemnity as the Registrar or the Transfer Agent may require in respect of any tax or other duty of whatever nature which may be levied or imposed in connection with such exchange), cause sufficient Individual Note Certificates to be executed and delivered to the Registrar or, as applicable, the Transfer Agent for completion, authentication and dispatch to the relevant Noteholders. A person having an interest in a Global Note Certificate must provide the Registrar with (a) a written order containing instructions and such other information as the Issuer and the Registrar may require to complete, execute and deliver such Individual Note Certificates and (b) in the case of the Rule 144A Global Note Certificate only, a fully completed, signed certification substantially to the effect that the exchanging holder is not transferring its interest at the time of such exchange or, in the case of simultaneous sale pursuant to Rule 144A, a certification that the transfer is being made in compliance with the provisions of Rule 144A to a purchaser that the transferor reasonably believes to be a QIB. Individual Note Certificates issued in exchange for a beneficial interest in the Rule 144A Global Note Certificate shall bear the legends applicable to transfers pursuant to Rule 144A, as set out under ‘‘Subscription and Sale’’ and ‘‘Transfer Restrictions’’.
Legends. The holder of an Individual Note Certificate may transfer the Notes represented thereby in whole or in part in the applicable minimum denomination by surrendering it at the specified office of the Registrar or the Transfer Agent, together with the completed form of transfer thereon. Upon the transfer, exchange or replacement of an Individual Note Certificate bearing the legend referred to under
‘‘Subscription and Sale’’ and ‘‘Transfer Restrictions’’, or upon specific request for removal of the legend on an Individual Note Certificate, the Issuer will deliver only Individual Note Certificates that bear such legend, or will refuse to remove such legend, as the case may be, unless there is delivered to the Issuer and the Registrar such satisfactory evidence, which may include an opinion of counsel, as may reasonably be required by the Issuer that neither the legend nor the restrictions on transfer set out therein are required to ensure compliance with the provisions of the Securities Act and the Investment Company Act.
Reports to Noteholders: Available Information
Noteholder Reports. On each Payment Date, the Cash Manager will be required to provide or make available electronically to the Note Trustee, for the benefit of and on behalf of each Noteholder, the Servicer, the Special Servicer, the Managers, the Rating Agencies, the Issuer and the Originator, a
statement (‘‘Statement to Noteholders’’), where necessary based upon information provided by the Servicer and the Special Servicer. Each Statement to Noteholders will be made available to Noteholders and certain other persons on a quarterly basis via the Cash Manager’s internet website currently located at www.tss.db.com; however, such website does not form part of the information provided for the purposes of this Prospectus. Registration may be required for access to this website and disclaimers may be posted with respect to the information posted thereon. The Statements to Noteholders will also be made available through Bloomberg L.P.. Among other things the Statement to Noteholders will contain the following information:
(a) the amount of the distribution on the Payment Date to the holders of the Notes in reduction of the Principal Amount Outstanding;
(b) the amount of the distribution on the Payment Date to the holders of the Notes allocable to the interest due or overdue on each individual class;
(c) the aggregate amount of any drawings made under the Liquidity Facility Agreement in respect of the Payment Date;
(d) the aggregate amount of compensation paid to the Note Trustee, the Cash Manager, the Operating Bank, the Common Depositary, the Liquidity Facility Provider, the Operating Bank, the Corporate Services Provider and servicing compensation paid to the Servicer and the Special Servicer with respect to the related Interest Period for the Payment Date;
(e) the principal balance of the Mortgage Loans outstanding immediately before and immediately after the Payment Date;
(f) the weighted average remaining term to maturity of the Mortgage Loans as of the end of the related Interest Period for the Payment Date;
(g) the aggregate value of the Mortgaged Properties as of the Payment Date based on the most recent valuation of the Mortgaged Properties;
(h) the amounts available to the Issuer for distribution to the Noteholders by way of principal and interest for the Payment Date;
(i) the Rates of Interest for each class of the Notes for the Payment Date;
(j) the Principal Amounts Outstanding of each class of the Notes immediately before and immediately after the Payment Date;
(k) the amounts of any remaining unpaid interest shortfalls for each class of the Notes as of the Payment Date;
(l) the amount and the type of principal prepayment occurring on the Mortgage Loans since the previous Determination Date (or in the case of the first Payment Date, as of the Closing Date);
(m) if a liquidation of any Mortgaged Property or any part of any of the Mortgaged Property has occurred since the previous Determination Date (or in the case of the first Payment Date, as of the Closing Date) (other than a payment in full), the aggregate of all liquidation or enforcement proceeds which are included in the amounts to be distributed to Noteholders and other amounts received in connection with the liquidation (separately identifying the portion thereof allocable to distributions on the Notes);
(n) any interest on drawings paid to the Liquidity Facility Provider since the previous Determination Date or payable on the Payment Date;
(o) any interest on any Property Protection Advances paid to the Servicer and the Special Servicer since the previous Determination Date or payable on the Payment Date;
(p) the original and then current credit support levels for the Notes;
(q) the original and then current ratings for each class of the Notes; and
(r) identification of any default actually known under the Mortgage Loans, as of the close of business on the last day of the month preceding the month in which the relevant Payment Date occurs and a summary description of any action taken since the last Statement to Noteholders.
In addition, the Note Trustee will give Noteholders three days’ notice of any early redemption of the Notes.
In addition, the Cash Manager will make available to the Noteholders via the Cash Manager’s internet website (currently located at www.tss.db.com) the Servicer Quarterly Reports. Such website does not form part of the information provided for the purposes of this Prospectus. Registration may be required for access to this website and disclaimers may be posted with respect to the information posted thereon.
In the information referred to above, the amounts will be expressed as a Sterling amount in the aggregate for all Notes of each applicable class and per any Definitive Note. In addition, within a reasonable period of time after the end of each calendar year, the Cash Manager is required to furnish to each person or entity who at any time during the calendar year was a holder of a Note, a statement containing the information set forth in (a) and (b) above as to the applicable class, together with any other information as the Cash Manager deems necessary or desirable, or that a Noteholder reasonably requests, to enable Noteholders to prepare their tax returns for that calendar year.
The Cash Management Agreement requires that the Cash Manager (except for items (e) and (f) below, which will be made available by the Note Trustee) make available at its offices, during normal business hours, for review by any holder of a Note, the Originator, the Issuer, the Special Servicer, the
The Cash Management Agreement requires that the Cash Manager (except for items (e) and (f) below, which will be made available by the Note Trustee) make available at its offices, during normal business hours, for review by any holder of a Note, the Originator, the Issuer, the Special Servicer, the