EXHIBIT 10.1
Draft: 25/02/03
THIS AMENDED AND RESTATED FUNDING 1 LIQUIDITY FACILITY AGREEMENT is dated [6th
March], 2003 between:
(1) PERMANENT FUNDING (NO. 1) LIMITED, (registered number 4267660) whose
registered office is Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
("FUNDING 1");
(2) JPMORGAN CHASE BANK, acting through its offices at 000 Xxxxxx Xxxx,
Xxxxxx XX0X 0XX acting in its capacity as the Funding 1 Liquidity
Facility Provider;
(3) HALIFAX PLC, a public limited company incorporated under the laws of
England and Wales whose registered office is at Xxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX acting in its capacity as Cash Manager;
(4) STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
organised under the laws of the Commonwealth of Massachusetts, United
States of America, acting through its office at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 acting as a co-trustee in its capacity as
Security Trustee; and
(5) U.S. BANK NATIONAL ASSOCIATION, a national banking association formed
under the laws of the United States of America, acting through its
office at 0 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
acting as a co-trustee in its capacity as Security Trustee.
WHEREAS:
(A) The parties hereto entered into the Funding 1 Liquidity Facility
Agreement (as amended and restated on the Second Issuer Closing Date
and as further amended and/or restated from time to time, the "FUNDING
1 LIQUIDITY FACILITY AGREEMENT") to assist Funding 1 in, among other
things, (i) making Eligible Liquidity Facility Principal Repayments and
(ii) meeting its interest payment liabilities in respect of any Term
Advance from time to time.
(B) Upon the terms and subject to the conditions set out in the Funding 1
Liquidity Facility Agreement, the Funding 1 Liquidity Facility Provider
agreed to make a Funding 1 Liquidity Facility and a Funding 1 Liquidity
Stand-by Facility available to Funding 1 on and subject to the terms
set out in the Funding 1 Liquidity Facility Agreement.
(C) The parties to the Funding 1 Liquidity Facility Agreement have agreed
to amend and restate the terms of that Agreement as set out herein.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Xxxxx and Xxxxxx
Xxxxxx Xxxxx & Wood on [5th March], 2003 (as the same may be amended,
varied or supplemented from time to time with the consent of the
parties hereto) is expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in the Amended and
Restated Master Definitions and Construction Schedule (as so amended,
varied or supplemented) shall, except
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where the context otherwise requires and save where otherwise defined
in this Agreement, have the same meanings in this Agreement.
1.2 This Agreement amends and restates the Funding 1 Liquidity Facility
Agreement made on 14th June, 2002 between the parties hereto (the
"PRINCIPAL AGREEMENT"). As of the date of this Agreement, any future
rights or obligations (excluding such obligations accrued to the date
of this Agreement) of a party under the Principal Agreement shall be
extinguished and shall instead be governed by this Agreement.
1.3 CONSTRUCTION
(a) Unless the contrary intention appears, a term used in any other Funding
1 Liquidity Document or in any notice given under or in connection with
any Funding 1 Liquidity Document has the same meaning in that Funding 1
Liquidity Document or notice as in this Agreement.
(b) The Security Trustee has agreed to become a party to this Agreement
only for the purpose of taking the benefit of CLAUSES 2.3 (Extension),
5.1(b) (Funding 1 Liquidity Drawings), 5.2(a), (b) and (d) (Stand-by
Drawings), 6(b) and (c) (Repayment), 14.1 (Representations and
warranties by Funding 1), 7.2 (Voluntary Cancellation), 7.3 (Additional
right of prepayment and cancellation), 14 (Representations warranties).
15.2 (Financial information), 18 (Enforcement and Subordination), 24
(Changes to the Parties) and 29 (Notices) and for agreeing amendments
to this Agreement pursuant to CLAUSE 23 (Amendments and waivers) and
for the better preservation and enforcement of its rights under the
Funding 1 Deed of Charge and (without prejudice to the terms of the
Funding 1 Deed of Charge), other than as specified above, the Security
Trustee shall assume no obligations or liabilities whatsoever to the
Funding 1 Liquidity Facility Provider or Funding 1 by virtue of the
provisions of this Agreement.
2. THE FUNDING 1 LIQUIDITY FACILITY
2.1 FACILITIES
Subject to the terms of this Agreement, the Funding 1 Liquidity
Facility Provider grants to Funding 1 the following facilities:
(a) the Initial Funding 1 Liquidity Facility;
(b) the Further Funding 1 Liquidity Facility;
(together, the "FUNDING 1 LIQUIDITY FACILITY"),
(c) the Initial Funding 1 Stand-by Facility; and
(d) the Further Funding 1 Stand-by Facility,
(together, the "FUNDING 1 LIQUIDITY STAND-BY FACILITY").
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2.2 FACILITY LIMITS
The aggregate principal amount of each Funding 1 Liquidity Facility
Loan shall not at any time exceed the relevant Funding 1 Liquidity
Facility Commitment. The Funding 1 Liquidity Facility Provider is not
obliged to lend more than the relevant Funding 1 Liquidity Facility
Commitment.
2.3 EXTENSION
(a) Save as otherwise provided in this Agreement, Funding 1 (or the
Security Trustee or the Cash Manager on its behalf) may by not more
than 60 days and not later than 30 days before the end of the Funding 1
Liquidity Facility Commitment Period deliver to the Funding 1 Liquidity
Facility Provider an irrevocable request in writing that the Funding 1
Liquidity Facility Commitment Period should be extended (an "EXTENSION
REQUEST") to a date that is not more than 364 days from the last day of
the then current Funding 1 Liquidity Facility Commitment Period.
(b) The Funding 1 Liquidity Facility Provider shall promptly send the
Security Trustee a copy of any Extension Request received by it.
(c) If the Funding 1 Liquidity Facility Provider wishes to accept an
Extension Request then the Funding 1 Liquidity Facility Provider shall,
not more than 15 days after receipt of the Extension Request, deliver
to Funding 1 (with a copy to the Security Trustee) an irrevocable
notice (a "NOTICE OF EXTENSION") that the Funding 1 Liquidity Facility
Provider has consented to the Extension Request.
(d) The Funding 1 Liquidity Facility Provider is not obliged to agree to
extend the Funding 1 Liquidity Facility Commitment Period and in no
event may it be extended beyond the Repayment Date.
2.4 CHANGE OF CURRENCY
(a) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency of
that country, then:
(i) any reference in the Funding 1 Liquidity Documents to, and any
obligations arising under the Funding 1 Liquidity Documents
in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country
designated by the Funding 1 Liquidity Facility Provider; and
(ii) any translation from one currency or currency unit to another
shall be at the official rate of exchange recognised by the
central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Funding 1
Liquidity Facility Provider acting reasonably.
(b) If a change in any currency of a country occurs, this Agreement will be
amended to the extent the Funding 1 Liquidity Facility Provider
specifies to be necessary to reflect the change in currency and to put
the Funding 1 Liquidity Facility Provider in the same position, so far
as possible, that it would have been in if no change in currency had
occurred.
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3. PURPOSE
(a) Funding 1 (or the Cash Manager on behalf of Funding 1) shall apply a
Funding 1 Liquidity Drawing to meet a corresponding Funding 1 Liquidity
Shortfall existing at that time. For the avoidance of doubt, an Initial
Funding 1 Liquidity Facility Drawing may only be applied to meet an
Initial Funding 1 Liquidity Shortfall and a Further Funding 1 Liquidity
Facility Drawing may only be applied to meet a Further Funding 1
Liquidity Shortfall.
(b) Funding 1 (or the Cash Manager on behalf of Funding 1) shall apply a
Funding 1 Liquidity Facility Stand-by Drawing for the purposes set out
in CLAUSE 5.2 (Stand-by Drawings).
(c) Without affecting the obligations of Funding 1 in any way, the Funding
1 Liquidity Facility Provider is not bound to monitor or verify the
application of any Funding 1 Liquidity Facility Drawing.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The obligations of the Funding 1 Liquidity Facility Provider to Funding
1 under this Agreement are subject to the condition precedent that the
Funding 1 Liquidity Facility Provider has notified Funding 1 that it
has received all of the documents set out in SCHEDULE 1 and that each
is in form and substance satisfactory to it.
4.2 FURTHER CONDITIONS PRECEDENT
(a) The obligation of the Funding 1 Liquidity Facility Provider to make a
Funding 1 Liquidity Facility Drawing is subject to the further
conditions precedent that on both the date of the Funding 1 Liquidity
Facility Request and the Funding 1 Liquidity Facility Drawdown Date for
that Funding 1 Liquidity Facility Drawing:
(i) no Asset Trigger Event has occurred;
(ii) no Funding 1 Liquidity Facility Default is outstanding or
would result from the making of the Funding 1 Liquidity
Facility Drawing; and
(iii) no or insufficient amounts are available for drawing from the
Reserve Fund in order to pay the liabilities in respect of
which the relevant Funding 1 Liquidity Facility Drawing is to
be applied.
(b) The obligation of the Funding 1 Liquidity Facility Provider to make a
Funding 1 Liquidity Facility Drawing available for the purpose of a
relevant Funding 1 Liquidity Revenue Shortfall is subject to the
further conditions precedent that, on the Funding 1 Liquidity Facility
Drawdown Date for that Funding 1 Liquidity Facility Drawing, Funding 1
(or the Cash Manager on its behalf) provides confirmation to the
Funding 1 Liquidity Facility Provider that:
(i) in respect of any Initial Funding 1 Liquidity Facility Drawing
to assist the payment of interest on the relevant Term AAA
Advances, the debit balance on the relevant AAA Principal
Deficiency Sub Ledger is in an amount equal to or in excess of
50 per cent. of the principal amount outstanding of the
relevant Term AAA Advances;
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(ii) in respect of any Further Funding 1 Liquidity Facility Drawing
to assist the payment of interest on the relevant Term AAA
Advances, the debit balance on the relevant AAA Principal
Deficiency Sub Ledger is in an amount equal to or in excess of
50 per cent. of the principal amount outstanding of the
relevant Term AAA Advances;
(iii) in respect of any Initial Funding 1 Liquidity Facility Drawing
to assist the payment of interest on the relevant Term AA
Advances, the debit balance on the relevant AA Principal
Deficiency Sub Ledger is in an amount equal to or in excess of
50 per cent. of the principal amount outstanding of the
relevant Term AA Advances;
(iv) in respect of any Further Funding 1 Liquidity Facility Drawing
to assist the payment of interest on the relevant Term AA
Advances, the debit balance on the relevant AA Principal
Deficiency Sub Ledger is in an amount equal to or in excess of
50 per cent. of the principal amount outstanding of the
relevant Term AA Advances;
(v) in respect of any Initial Funding 1 Liquidity Facility Drawing
to assist the payment of interest on the relevant Term BBB
Advances, the debit balance on the relevant BBB Principal
Deficiency Sub Ledger is in an amount equal to or in excess of
50 per cent. of the principal amount outstanding of the
relevant Term BBB Advances; and
(vi) in respect of any Further Funding 1 Liquidity Facility Drawing
to assist the payment of interest on the relevant Term BBB
Advances, the debit balance on the BBB Principal Deficiency
Sub Ledger is in an amount equal to or in excess of 50 per
cent. of the principal amount outstanding of the relevant Term
BBB Advances.
(c) The obligation of the Funding 1 Liquidity Facility Provider to make a
Funding 1 Liquidity Facility Drawing available for the purpose of a
relevant Funding 1 Liquidity Principal Shortfall is subject to the
further conditions precedent that, on the Funding 1 Liquidity Facility
Drawdown Date for that Funding 1 Liquidity Facility Drawing, Funding 1
(or the Cash Manager on its behalf) provides confirmation to the
Funding 1 Liquidity Facility Provider that:
(i) if a Non Asset Trigger Event has occurred, then a Funding 1
Liquidity Facility Drawing may be made only to make Eligible
Liquidity Facility Principal Repayments on the respective
Final Repayment Date of each relevant Term Advance; and
(ii) if an Asset Trigger Event has occurred, then a Funding 1
Liquidity Facility Drawing will not be available to make
Eligible Liquidity Facility Principal Repayments.
5. DRAWDOWN
5.1 FUNDING 1 LIQUIDITY DRAWINGS
(a) If, on the Intercompany Loan Determination Date immediately preceding a
relevant Funding 1 Interest Payment Date, the Cash Manager determines
that, on the relevant Funding 1 Interest Payment Date, a Funding 1
Liquidity Shortfall will arise, the Cash Manager will direct Funding 1
to make a Funding 1 Liquidity Drawing on the Business Day immediately
preceding that Funding 1 Interest Payment Date, subject to the terms of
this Agreement, for all or any of the purposes set out in CLAUSE 3
(Purpose) (as appropriate) and, subject to the limits set out in CLAUSE
2.2 (Facility limits), in an amount equal to the Funding 1 Liquidity
Shortfall.
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(b) Funding 1 (or Cash Manager on behalf of Funding 1) will serve on the
Funding 1 Liquidity Facility Provider a Funding 1 Liquidity Facility
Request (substantially in the form set out in SCHEDULE 3 to this
Agreement) for each Funding 1 Liquidity Drawing, such request to be
given by facsimile in accordance with CLAUSE 29 (Notices) of this
Agreement to be received by the Funding 1 Liquidity Facility Provider
not later than 10.00 a.m. on the Business Day immediately preceding the
proposed Funding 1 Liquidity Facility Drawdown Date.
(c) No Funding 1 Liquidity Drawing may be made, or requested to be made, on
or after the last day of the then current Funding 1 Liquidity Facility
Commitment Period.
5.2 STAND-BY DRAWINGS
(a) The Funding 1 Liquidity Provider shall, upon becoming aware of a
Relevant Event, promptly notify Funding 1, the Security Trustee and the
Cash Manager in writing of that fact.
(b) If a Relevant Event occurs, Funding 1 (or the Security Trustee or the
Cash Manager on behalf of Funding 1) may, subject to the terms of this
Agreement, and after serving a Funding 1 Liquidity Facility Request on
the Funding 1 Liquidity Facility Provider, make a Funding 1 Liquidity
Facility Stand-by Drawing equal to the undrawn portion of the Funding 1
Liquidity Facility Commitment at that time provided that such Funding 1
Liquidity Facility Stand-by Drawing shall be used only in accordance
with PARAGRAPH (e) below. No Funding 1 Liquidity Facility Stand-by
Drawing may be made or requested to be made after the end of the
Funding 1 Liquidity Facility Commitment Period.
(c) Upon making a Funding 1 Liquidity Facility Stand-by Drawing, Funding 1
(or the Security Trustee or the Cash Manager on behalf of Funding 1)
shall forthwith pay the Funding 1 Liquidity Facility Stand-by Drawing
into the Funding 1 Liquidity Facility Stand-by Account, which shall be
an account with the Funding 1 Liquidity Facility Provider if the
Relevant Event leading to the making of the Funding 1 Liquidity
Facility Stand-by Drawing is of the type described in paragraph (c) of
the definition of Relevant Event, and, otherwise with the Account Bank,
or, if the Account Bank ceases to have the Requisite Ratings, shall be
an account with a bank which has the Requisite Ratings.
(d) Subject to the Funding 1 Deed of Charge, interest earned on the Funding
1 Liquidity Facility Stand-by Account shall be for the account of:
(i) Funding 1 in so far as it relates to an Initial Funding 1
Stand-by Drawing and Funding 1 shall be entitled to withdraw
and retain such interest earned; and
(ii) the Funding 1 Liquidity Facility Provider in so far as it
relates a Further Funding 1 Stand-by Drawing.
(e) Save as provided for in PARAGRAPH (d)(II) above, amounts from time to
time standing to the credit of the Funding 1 Liquidity Facility
Stand-by Account shall belong to Funding 1 and the Funding 1 Liquidity
Facility Provider shall not have any proprietary interest or Security
Interest in such amounts save as arises under the Funding 1 Deed of
Charge. Other than as referred to in PARAGRAPH (d)(i) above, Funding 1
(or the Security Trustee or the Cash Manager on behalf of Funding 1)
shall only make withdrawals from the Funding 1 Liquidity Facility
Stand-by Account:
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(i) in such circumstances and in such amount as it would otherwise
have been able to make a Funding 1 Liquidity Drawing pursuant
to CLAUSE 5.1 (Funding 1 Liquidity Drawings), which withdrawal
shall be deemed to be a Funding 1 Liquidity Drawing made under
CLAUSE 5.1;
(ii) in order to make a repayment of a Funding 1 Liquidity Facility
Stand-by Drawing in accordance with CLAUSE 6 (Repayment); or
(iii) in order to invest funds standing to the credit of the Funding
1 Liquidity Facility Stand-by Account in Authorised
Investments,
but not otherwise, and the amounts of the Funding 1 Liquidity Facility
Stand-by Drawing shall be reduced by the amount of such deemed Funding
1 Liquidity Drawings or, as the case may be, repayment.
5.3 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, the Funding 1 Liquidity
Facility Provider shall make each Funding 1 Liquidity Facility Loan
available for Funding 1 on the relevant Funding 1 Liquidity Facility
Drawdown Date and shall remit each Funding 1 Liquidity Facility Loan to
Funding 1 by noon on the relevant Funding 1 Liquidity Facility Drawdown
Date or, if LIBOR is determined otherwise than in accordance with
paragraph (a) of its definition, by 2.00 p.m. on the relevant Funding 1
Liquidity Facility Drawdown Date.
6. REPAYMENT
(a) Subject as provided below and subject to CLAUSE 7.2 (Voluntary
Cancellation), CLAUSE 18 (Enforcement and Subordination) and CLAUSE
21.2 (Other indemnities) on the earlier of:
(i) the immediately succeeding Funding 1 Interest Payment Date;
and
(ii) the Repayment Date,
Funding 1 shall repay the outstanding balance of the Funding 1
Liquidity Drawing, if any, from Funding 1 Available Principal Receipts
(but only to the extent that the Funding 1 Liquidity Drawing has been
made to meet Funding 1 Liquidity Principal Shortfalls (if any)) and
from Funding 1 Available Revenue Receipts (but only to the extent that
the Funding 1 Liquidity Drawing has been made to meet Funding 1
Liquidity Revenue Shortfalls (if any)) as at the opening of business on
such date. Other than on the Repayment Date and subject to the terms of
this Agreement, Funding 1 may draw a new Funding 1 Liquidity Drawing or
rollover an existing Funding 1 Liquidity Drawing for the purposes of
this PARAGRAPH (a). Funding 1 Liquidity Drawings so repaid may be
redrawn in accordance with and subject to the terms of this Agreement.
(b) While a Funding 1 Liquidity Facility Stand-by Drawing is outstanding,
any amount that has been withdrawn from the Funding 1 Liquidity
Facility Stand-by Account shall be repaid by crediting such amount to
the Funding 1 Liquidity Facility Stand-by Account as if it were a
Funding 1 Liquidity Drawing repayable in accordance with PARAGRAPH (a)
above and the Funding 1 Liquidity Facility Stand-by Account shall be
increased by the amount of the Funding 1 Liquidity Drawing repaid. For
the avoidance of doubt, any repayment pursuant to
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this PARAGRAPH (b) shall not be applied to reduce the amount of the
Funding 1 Liquidity Facility Stand-by Drawing.
(c) The Funding 1 Liquidity Facility Stand-by Drawing shall, subject to
CLAUSE 18 (Enforcement and Subordination), be repayable to the Funding
1 Liquidity Facility Provider, together with accrued interest pursuant
to CLAUSE 8 (Interest), on the earlier of:
(i) (A) if the Relevant Event resulting in the making of the
Funding 1 Liquidity Facility Stand-by Drawing was of
the type described in paragraph (a) or (b) of the
definition of Relevant Event:
(x) Funding 1 cancelling the Funding 1 Liquidity
Facility Commitment in full (in accordance
with CLAUSE 7.2(b) (Voluntary cancellation))
or the Funding 1 Liquidity Facility Provider
entering into a Novation Certificate with a
Qualifying Lender having the Requisite
Ratings; or
(y) the day which is two London Business Days
after the date on which the Funding 1
Liquidity Facility Provider has given notice
to Funding 1 that it again has the Requisite
Ratings; or
(B) if the Relevant Event resulting in the making of the
Funding 1 Liquidity Facility Stand-by Drawing was of
the type described in paragraph (c) of the definition
of Relevant Event, Funding 1 entering into a
replacement liquidity facility on terms acceptable to
the Security Trustee and the Rating Agencies;
(ii) the Repayment Date; and
(iii) Funding 1 electing to repay the Funding 1 Liquidity Facility
Stand-by Drawing as a result of Funding 1 not having available
to it sufficient funds to pay interest and other amounts due
and payable in respect of the Funding 1 Liquidity Facility
Stand-by Drawing.
7. CANCELLATION
7.1 AUTOMATIC CANCELLATION OF THE FUNDING 1 LIQUIDITY FACILITY COMMITMENT
The Funding 1 Liquidity Facility Commitment shall be automatically
cancelled at close of business on the last day of the Funding 1
Liquidity Facility Commitment Period.
7.2 VOLUNTARY CANCELLATION
(a) Funding 1 may with the prior written consent of the Security Trustee
and provided that:
(i) the Rating Agencies have confirmed that such cancellation will
have no material adverse effect on the then current ratings of
any of the Notes of any Issuer; or
(ii) if the ratings of any of the Notes of any Issuer has
previously been downgraded that such cancellation will not
prevent the restoration of such rating,
without premium or penalty, cancel the undrawn and uncancelled part of
the Funding 1 Liquidity Facility Commitment in whole or in part (but if
in part, in multiples of not less than
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Pound Sterling 50,000 unless the Funding 1 Liquidity Facility
Commitment is less than Pound Sterling50,000) at any time provided that
it has given the Funding 1 Liquidity Facility Provider not less than
seven London Business Days' prior notice (which notice Funding 1 shall
copy to the Security Trustee, the Cash Manager and to the Rating
Agencies) stating the principal amount to be cancelled. During such
seven Business Day period Funding 1 may not serve a Funding 1 Liquidity
Facility Request purporting to draw all or any part of the amount the
subject of such notice of such cancellation.
(b) If a Relevant Event of the type described in paragraph (a) or (b) of
the definition of such term occurs, Funding 1 may, without premium or
penalty, by notice to the Funding 1 Liquidity Facility Provider (which
notice Funding 1 shall copy to the Security Trustee and the Cash
Manager):
(i) cancel the undrawn and uncancelled part of the Funding 1
Liquidity Facility, provided that Funding 1 shall first have
made arrangements for a replacement liquidity facility
provider which is a Qualifying Lender and has the Requisite
Ratings to enter into an agreement on substantially the same
terms as this Agreement and provided that the Funding 1
Liquidity Facility Provider has been repaid all amounts
outstanding to it under this Agreement in full; or
(ii) require the Funding 1 Liquidity Facility Provider to enter
into a novation agreement (at the cost of Funding 1) in a form
reasonably satisfactory to the Funding 1 Liquidity Facility
Provider, Funding 1 and the Security Trustee with, or
otherwise transfer the Funding 1 Liquidity Facility Provider's
rights and obligations under this Agreement in such manner as
is required by Funding 1 and the Security Trustee to, a
replacement liquidity facility provider which is a Qualifying
Lender and has the Requisite Ratings, provided that the
Funding 1 Liquidity Facility Provider has been repaid all
amounts outstanding to it under this Agreement in full as a
result of the novation.
(c) Without prejudice to Funding 1's rights under PARAGRAPH (b) above, if a
Relevant Event of the type described in paragraph (a) or (b) of the
definition of such term occurs, the Funding 1 Liquidity Facility
Provider may make arrangements either:
(i) to replace itself with a replacement liquidity facility
provider which is acceptable to Funding 1 which is a
Qualifying Lender and has the Requisite Ratings to enter into
an agreement on substantially the same terms as this
Agreement; or
(ii) request Funding 1, the Security Trustee and the Cash Manager
to enter into a novation agreement in a form reasonably
satisfactory to Funding 1 and the Security Trustee with, or
otherwise to transfer the Funding 1 Liquidity Facility
Provider's rights and obligations under this Agreement in such
manner as is required by Funding 1 and the Security Trustee
to, a replacement liquidity facility provider which is a
Qualifying Lender and has the Requisite Ratings;
and in either case, Funding 1 shall take all reasonable steps to effect
such arrangement
(d) To the extent that there is any conflict between Funding 1's rights
under PARAGRAPH (b) above and the Funding 1 Liquidity Facility
Provider's rights under PARAGRAPH (c) above, the views of Funding 1
will prevail with the result that if each of Funding 1 and the Funding
1 Liquidity Facility Provider had selected a replacement liquidity
facility provider, or wished to
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adopt a different approach under PARAGRAPH (b) above or PARAGRAPH (c)
above, as appropriate, the selection and/or the approach to be adopted
will be that selected or adopted (as the case may be) by Funding 1.
(e) Funding 1 may also, without premium or penalty, by notice to the
Funding 1 Liquidity Facility Provider, cancel the whole of the Funding
1 Liquidity Facility Commitment on the Repayment Date.
7.3 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
(a) Funding 1 is required to pay to the Funding 1 Liquidity
Facility Provider any additional amounts under CLAUSE 10
(Taxes); or
(b) Funding 1 is required to pay to the Funding 1 Liquidity
Facility Provider any amount under CLAUSE 12 (Increased
costs),
then, without prejudice to the obligations of Funding 1 under those
Clauses, Funding 1 may, whilst the circumstances continue, give a
notice of prepayment and cancellation to the Funding 1 Liquidity
Facility Provider with a copy to the Security Trustee. On the date
falling five London Business Days after the date of giving of the
notice:
(i) Funding 1 shall prepay the Funding 1 Liquidity Facility Loans;
and
(ii) the Funding 1 Liquidity Facility Commitment shall be
cancelled.
7.4 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to CLAUSE 21
(Indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) No amount of the Funding 1 Liquidity Facility Commitment cancelled
under this Agreement may subsequently be reinstated except with the
prior written consent of the Funding 1 Liquidity Facility Provider,
Funding 1 and the Security Trustee.
8. INTEREST
8.1 INTEREST RATE
The rate of interest on each Funding 1 Liquidity Facility Loan (other
than the Further Funding 1 Liquidity Facility Stand-by-Loan) for each
Funding 1 Liquidity Facility Interest Period is the rate per annum
determined by the Funding 1 Liquidity Facility Provider to be the
aggregate of the applicable:
(a) Funding 1 Liquidity Facility Margin;
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(b) LIBOR; and
(c) subject to CLAUSE 18 (Enforcement and Subordination),
Mandatory Liquid Asset Cost.
Interest is not payable in respect of the principal amount of any
Further Funding 1 Liquidity Facility Stand-by Drawing.
8.2 DUE DATES
Except as otherwise provided in this Agreement (including, without
limitation, CLAUSE 6 (Repayment)), accrued interest on each Funding 1
Liquidity Facility Loan is payable by Funding 1 on each Funding 1
Interest Payment Date.
8.3 DEFAULT INTEREST
(a) If Funding 1 fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the Funding 1 Liquidity
Facility Provider pay interest on the overdue amount from the due date
up to the date of actual payment, as well after as before judgment, at
a rate (the "DEFAULT RATE") determined by the Funding 1 Liquidity
Facility Provider to be one per cent. per annum above the higher of:
(i) the rate on the overdue amount under CLAUSE 8.1 (Interest
rate) immediately before the due date (if of principal); and
(ii) the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Funding 1
Liquidity Facility Drawing in the currency of the overdue
amount for such successive Funding 1 Liquidity Facility
Interest Periods of such duration as the Funding 1 Liquidity
Facility Provider may determine (each a "DESIGNATED INTEREST
PERIOD").
(b) The Default Rate will be determined on each Business Day or the first
day of the relevant Designated Interest Period, as appropriate.
(c) If LIBOR is to be determined in accordance with paragraph (b) of its
definition and the Funding 1 Liquidity Facility Provider determines
that deposits in the currency of the overdue amount are not at the
relevant time being made available by the Reference Banks to leading
banks in the London interbank market, the Default Rate will be
determined by reference to the cost of funds to the Funding 1 Liquidity
Facility Provider from whatever sources it reasonably selects.
(d) Default interest will be compounded at the end of each Designated
Interest Period.
(e) This CLAUSE 8.3 shall not apply to amounts deferred as a result of the
operation of CLAUSE 18 (Enforcement and Subordination).
8.4 NOTIFICATION OF RATES OF INTEREST
The Funding 1 Liquidity Facility Provider shall promptly notify each
relevant Party of the determination of a rate of interest under this
Agreement.
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9. PAYMENTS
9.1 PLACE
All payments by Funding 1 under this Agreement shall be made to the
Funding 1 Liquidity Facility Provider's account at JPMorgan Chase Bank,
Sort Code: 60-92-42, Account Reference: European Loans or to its
account at such office or bank as it may notify to Funding 1 for this
purpose.
9.2 FUNDS
Payments under this Agreement to the Funding 1 Liquidity Facility
Provider shall be made for value on the due date at such times and in
such funds as the Funding 1 Liquidity Facility Provider may specify to
the Party concerned as being customary at the time for the settlement
of transactions in Sterling.
9.3 CURRENCY
(a) Amounts payable in respect of costs, expenses, taxes and the like are
payable in the currency in which they are incurred.
(b) Any other amount payable under this Agreement is, except as otherwise
provided in this Agreement, payable in Sterling.
9.4 SET-OFF AND COUNTERCLAIM
All payments made by the Funding 1 under this Agreement shall be made
without set-off or counterclaim.
9.5 NON-BUSINESS DAYS
(a) If a payment under this Agreement is due on a day which is not a London
Business Day, the due date for that payment shall instead be the next
London Business Day in the same calendar month (if there is one) or the
preceding London Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on the principal at the rate payable
on the original due date.
10. TAXES
10.1 GROSS-UP
Subject to CLAUSE 18 (Enforcement and Subordination) and CLAUSE 10.3
(Qualifying Lender), all payments by Funding 1 under the Funding 1
Liquidity Documents shall be made free and clear of and without
deduction or withholding for or on account of any Taxes, except to the
extent that Funding 1 is required by law to make payment subject to any
such deduction or withholding for or on account of any Taxes. If any
Tax or amounts in respect of Tax is required by law to be deducted or
withheld from any amounts payable or paid by Funding 1 under the
Funding 1 Liquidity Documents, subject to CLAUSE 18 (Enforcement and
Subordination) Funding 1 shall pay such additional amounts as may be
necessary to ensure that (after any deduction or withholding required
in respect of such additional amounts) the Funding 1 Liquidity Facility
Provider receives a net amount equal to the full amount which it
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would have received had payment not been made subject to any such
deduction or withholding for or on account of any Taxes.
10.2 TAX RECEIPTS
Subject to CLAUSE 18 (Enforcement and Subordination), all Taxes
required by law to be deducted or withheld by Funding 1 from any
amounts paid or payable under the Funding 1 Liquidity Documents shall
be paid by Funding 1 when due and Funding 1 shall, within 30 days of
the payment being made, deliver to the Funding 1 Liquidity Facility
Provider evidence satisfactory to the Funding 1 Liquidity Facility
Provider (acting reasonably) (including all relevant Tax receipts) that
the payment has been duly remitted to the appropriate authority.
10.3 QUALIFYING LENDER
Funding 1 shall not be required to pay an additional amount as referred
to in CLAUSE 10(1) (Gross-up) above in respect of any deduction or
withholding for or on account of any Taxes levied or imposed by the
United Kingdom (or any taxing authority of or in the United Kingdom)
from a payment of interest, if on the date on which the payment falls
due:
(a) the payment could have been made to the Funding 1 Liquidity
Facility Provider or replacement liquidity facility provider
(as applicable) in the absence of a deduction or withholding
for or on account of any Taxes if the Funding 1 Liquidity
Facility Provider or replacement liquidity facility provider
(as applicable) were a Qualifying Lender, but on that date the
Funding 1 Liquidity Facility Provider or replacement liquidity
facility provider is not or has ceased to be a Qualifying
Lender other than as a result of any change occurring after
the date of this Agreement in (or in the interpretation,
administration or application of) any law or regulation or
applicable Double Taxation Treaty or any published practice or
concession of any relevant Tax authority;
(b) (i) the Funding 1 Liquidity Facility Provider or
replacement liquidity finance provider (as
applicable) is a UK Non-Bank Lender, or would have
been a UK Non-Bank Lender were it not for the
introduction of, change to or change in the
interpretation, administration or application of any
law or regulation or any published practice or
concession of the United Kingdom Inland Revenue
occurring after the date of this Agreement; and
(ii) the Board of the United Kingdom Inland Revenue has
given (and not revoked) a direction under Section
349C of the Income and Corporation Taxes Act 1998 (as
that provision has effect on the date of this
Agreement) which relates to such payment and Funding
1 has notified the Funding 1 Liquidity Facility
Provider or the replacement liquidity facility
provider (as applicable) of the precise terms of that
notice;
(c) the Funding 1 Liquidity Facility Provider or the
replacement liquidity facility provider (as
applicable) is a Treaty Lender and Funding 1 is able
to demonstrate that the additional amounts referred
to in CLAUSE 10.1 (Gross-up) above would not have
been required if the Funding 1 Liquidity Facility
Provider or the replacement liquidity facility
provider (as applicable) had complied with its
obligations under CLAUSE 10.6 (Treaty Lender) below.
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10.4 REFUND OF TAX CREDITS
If Funding 1 makes a payment under CLAUSE 10.1 (Gross-up) (a "TAX
PAYMENT") in respect of a payment to the Funding 1 Liquidity Facility
Provider under this Agreement and the Funding 1 Liquidity Facility
Provider determines that it has obtained a refund of Tax or obtained
and used a credit against Tax on its overall net income (a "TAX
CREDIT") which the Funding 1 Liquidity Facility Provider determines to
be attributable to that Tax Payment, then the Funding 1 Liquidity
Facility Provider shall reimburse Funding 1 such amount as the Funding
1 Liquidity Facility Provider determines to be such proportion of that
Tax Credit as will leave the Funding 1 Liquidity Facility Provider
(after that reimbursement) in no better or worse position than it would
have been in if no Tax Payment had been required. The Funding 1
Liquidity Facility Provider shall not be obliged to disclose to any
party to this Agreement or otherwise any information regarding its Tax
affairs and computations.
10.5 STATUS OF QUALIFYING LENDER
If the Funding 1 Liquidity Facility Provider or replacement liquidity
facility provider (as applicable) ceases, for whatever reason, to be a
Qualifying Lender, it shall promptly notify Funding 1 in writing of
that change in is status.
10.6 TREATY LENDER
A Treaty Lender and Funding 1 shall co-operate in completing any
procedural formalities necessary for Funding 1 to obtain authorisation
to make payments under the Funding 1 Liquidity Documents free and clear
of and without deduction or withholding for or on account of any Taxes
levied or imposed by the United Kingdom or any taxing authority of or
in the United Kingdom.
10.7 TAX INDEMNITY
(a) Funding 1 shall (within three Business Days of demand by the Funding 1
Liquidity Facility Provider or replacement liquidity facility provider
(as applicable) (the "PROTECTED PARTY")) pay to a Protected Party an
amount equal to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered for on
and account of Tax by that Protected Party in respect of the Funding 1
Liquidity Documents.
(b) Paragraph (a) above shall not apply:
(i) to any alternative minimum tax or any state or local tax
assessed on a Protected Party by the United States of America
or any state or local authority thereof;
(ii) with respect to any Tax assessed on a Protected Party:
(A) under the law of the jurisdiction in which that
Protected Party is incorporated or, if different, the
jurisdiction in which that Protected Party is treated
as resident for tax purposes; or
(B) under the law of the jurisdiction in which that
Protected Party's Facility Office is located in
respect of amounts received or receivable in that
jurisdiction,
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if that Tax is imposed or calculated by reference to the net
income received or receivable (but not any sum deemed to be
received or receivable) by that Protected Party;
(iii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under
CLAUSE 10.1 (Gross-up); or
(B) would have been compensated for by an increased
payment under CLAUSE 10.1 (Gross-up) but was not so
compensated solely because one of the exclusions in
CLAUSE 10.3 (Qualifying Lender) applied.
11. MARKET DISRUPTION
(a) If LIBOR is to be determined in accordance with paragraph (b) of its
definition and a Reference Bank does not supply an offered rate by 1.00
p.m. on a Funding 1 Liquidity Facility Drawdown Date, the applicable
LIBOR shall, subject to PARAGRAPH (b) below, be determined on the basis
of the quotations of the remaining Reference Bank(s).
(b) If, in relation to any Funding 1 Liquidity Facility Drawing or proposed
Funding 1 Liquidity Facility Drawing:
(i) LIBOR is to be determined in accordance with paragraph (b) of
its definition and no, or only one, Reference Bank supplies a
rate for the purposes of determining the applicable LIBOR or
the Funding 1 Liquidity Facility Provider otherwise determines
that adequate and fair means do not exist for ascertaining the
applicable LIBOR; or
(ii) in the Funding 1 Liquidity Facility Provider's opinion:
(1) matching deposits may not be available to it in the
London interbank market in the ordinary course of
business to fund that Funding 1 Liquidity Facility
Loan for the relevant Funding 1 Liquidity Facility
Interest Period; or
(2) the cost to it of matching deposits in the London
interbank market would be in excess of the relevant
LIBOR,
the Funding 1 Liquidity Facility Provider shall promptly notify Funding
1 of the fact and that this CLAUSE 11 is in operation.
(c) After any notification under PARAGRAPH (b) above, the Funding 1
Liquidity Facility Loan shall bear interest at the rate per annum equal
to the sum of the applicable Funding 1 Liquidity Facility Margin,
Mandatory Liquid Asset Cost and the cost to the Funding 1 Liquidity
Facility Provider (expressed as a rate per annum) of funding the
Funding 1 Liquidity Facility Loan by whatever means it reasonably
determines to be appropriate.
12. INCREASED COSTS
12.1 INCREASED COSTS
(a) Subject to CLAUSE 12.2 (Exceptions) and CLAUSE 18 (Enforcement and
Subordination), Funding 1 shall forthwith on demand by the Funding 1
Liquidity Facility Provider pay the
16
Funding 1 Liquidity Facility Provider the amount of any increased cost
incurred by it as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation by any court or official authority or
application of, any law or regulation or in the case of Tax,
the introduction of or any change in or any change in the
interpretation of any law, regulation or published practice or
concession of any relevant tax authority(in each case
occurring after the date of this Agreement);
(ii) compliance with any regulation made or modified after the date
of this Agreement,
including any law or regulation relating to change in currency of a
country or reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control or in the case of taxation, any law, regulation, published
practice or concession relating to Tax.
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by the Funding 1 Liquidity
Facility Provider or its holding company as a result of it
having entered into, or performing, maintaining or funding its
obligations under, the Funding 1 Liquidity Documents; or
(ii) that portion of an additional cost incurred by the Funding 1
Liquidity Facility Provider or its holding company in making,
funding or maintaining all or any advances comprised in a
class of advances formed by or including the Funding 1
Liquidity Facility Loans made or to be made under the Funding
1 Liquidity Documents as is attributable to it making, funding
or maintaining those participations; or
(iii) a reduction in any amount payable to the Funding 1 Liquidity
Facility Provider or its holding company or the effective
return to a Funding 1 Liquidity Facility Provider under this
Agreement or (to the extent that it is attributable to this
Agreement) on its capital, including any reduction in the
effective return from the Funding 1 Liquidity Facility Margin
or the commitment fee payable under CLAUSE 17 (Fees) of this
Agreement; or
(iv) the amount of any payment made by the Funding 1 Liquidity
Facility Provider or its holding company, or the amount of
interest or other return foregone by the Funding 1 Liquidity
Facility Provider, calculated by reference to any amount
received or receivable by the Funding 1 Liquidity Facility
Provider from any other Party under this Agreement.
12.2 EXCEPTIONS
CLAUSE 12.1 does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Liquid Asset
Cost;
(b) compensated for by the operation of CLAUSE 10 (Taxes); or
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(c) to the extent that any such increased cost is attributable to
any deduction or withholding for or on account of any taxes
required to be made by Funding 1.
13. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for the Funding 1
Liquidity Facility Provider to give effect to any of its obligations as
contemplated by this Agreement or to fund or maintain any Funding 1
Liquidity Facility Loan, then:
(a) the Funding 1 Liquidity Facility Provider may notify Funding 1
accordingly; and
(b) (i) subject to CLAUSE 18 (Enforcement and Subordination),
Funding 1 shall forthwith prepay the Funding 1
Liquidity Facility Loans together with all interest
and all other amounts payable by it to the Funding 1
Liquidity Facility Provider under this Agreement; and
(ii) the Funding 1 Liquidity Facility Commitment shall be
cancelled.
14. REPRESENTATIONS AND WARRANTIES
14.1 REPRESENTATIONS AND WARRANTIES BY FUNDING 1
Funding 1 makes the representations and warranties set out in this
CLAUSE 14.1 to the Funding 1 Liquidity Facility Provider and the
Security Trustee:
(a) STATUS
(i) It is a limited liability company, duly incorporated
and validly existing under the laws of England and
Wales; and
(ii) it has the power to own its assets and carry on its
business as it is being conducted.
(b) POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and
delivery of, the Funding 1 Liquidity Documents to which it is
or will be a party and the transactions contemplated by those
Funding 1 Liquidity Documents.
(c) LEGAL VALIDITY
Each Funding 1 Liquidity Document to which it is or will be a
party constitutes, or when executed in accordance with its
terms will constitute, its legal, valid and binding obligation
enforceable in accordance with its terms.
(d) NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Funding 1 Liquidity Documents do not and
will not:
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(i) result in the existence or imposition of nor oblige
it to create any Security Interest in favour of any
person (other than the Funding 1 Secured Creditors)
over all or any of its present or future revenues or
assets;
(ii) conflict with any law or regulation or judicial or
official order;
(iii) conflict with its constitutional documents; or
(iv) conflict with any document which is binding upon it
or any of its assets.
(e) NO DEFAULT
No Liquidity Facility Default is outstanding or might result
from the making of any Funding 1 Liquidity Facility Loan.
(f) AUTHORISATIONS
All authorisations required or desirable in connection with
the entry into, performance, validity and enforceability of,
and the transactions contemplated by, the Funding 1 Liquidity
Documents have been obtained or effected (as appropriate) and
are in full force and effect.
(g) LITIGATION
No litigation, arbitration or administrative proceedings
involving Funding 1 are current or, to its knowledge, pending
or threatened, which might, if adversely determined, have a
material adverse effect on the business or financial condition
of Funding 1 or the ability of Funding 1 to perform its
obligations under this Agreement.
(h) SECURITY INTERESTS
None of the assets of Funding 1 is affected by any Security
Interest, and Funding 1 is not a party to, nor is it or any of
its assets bound by, any order, agreement or instrument under
which Funding 1 is, or in certain events may be, required to
create, assume or permit to arise any Security Interest, other
than the Security Interests created by the Funding 1 Deed of
Charge.
(i) NO OTHER BUSINESS
(i) It has not traded or carried on any business since
its date of incorporation or engaged in any activity
whatsoever that is not incidental to or necessary in
connection with any of the activities in which the
Transaction Documents provide or envisage that it
will engage; and
(ii) it is not party to any material agreements other than
the Transaction Documents.
(j) OWNERSHIP
(i) Its entire issued share capital is legally and
beneficially owned and controlled by Holdings; and
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(ii) its shares are fully paid.
(k) GOOD TITLE AS TO ASSETS
Funding 1 is and will remain the absolute beneficial owner of
the Funding 1 Share and absolute legal and beneficial owner of
all other assets charged or assigned by the Funding 1 Deed of
Charge to which it is a party.
(l) TAX
(i) It is tax resident and legally domiciled in its
jurisdiction of incorporation; and
(ii) it has no branch, business establishment or other
fixed establishment outside the United Kingdom.
(m) FUNDING 1 DEED OF CHARGE
The Funding 1 Deed of Charge creates, or will create when the
Funding 1 Liquidity Facility Stand-by Account is opened and
the Funding 1 Liquidity Facility Stand-By Deposit is credited
to such account, a first priority Security Interest of the
type described in the Funding 1 Deed of Charge over the
Funding 1 Liquidity Facility Stand-by Deposit in favour of the
Security Trustee.
For the avoidance of doubt, a breach by Funding 1 of any representation
or warranty contained in this CLAUSE 14.1 or otherwise in this
Agreement shall not entitle the Funding 1 Liquidity Facility Provider
to terminate this Agreement or declare the Funding 1 Liquidity Drawing
or the Funding 1 Liquidity Facility Stand-by Drawing or any other
amounts payable under this Agreement due and payable or to prevent any
utilisation of the Funding 1 Liquidity Facility or the Standby-by
Facility or any Funding 1 Liquidity Facility Loan being made.
14.2 REPRESENTATIONS AND WARRANTIES BY THE FUNDING 1 LIQUIDITY FACILITY
PROVIDER
The Funding 1 Liquidity Facility Provider makes the representations and
warranties set out in this CLAUSE 14.2 to Funding 1 and the Security
Trustee.
(a) STATUS
It is duly incorporated with limited liability under the laws
of the jurisdiction of its incorporation and is an authorised
institution under the FSMA 2000.
(b) TAX STATUS
It is a Qualifying Lender.
(c) POWERS AND AUTHORISATIONS
The documents which contain or establish its constitution
include provisions which give power, and all necessary
corporate authority has been obtained and action taken, for it
to sign and deliver, and perform the transactions contemplated
in this Agreement and the agreements entered into in
connection herewith and this
20
Agreement and the agreements entered into in connection
herewith constitute its valid, legal and binding obligations.
(d) RATING
It has the Requisite Ratings (and will promptly notify both
Funding 1 and the Security Trustee of the occurrence of any
downgrading by the Rating Agencies of any of its rated debt
obligations to a level below the Requisite Ratings).
(e) NON-VIOLATION
Neither the signing and delivery of this Agreement nor the
performance of any of the transactions contemplated in it does
or will contravene or constitute a default under, or cause to
be exceeded any limit on the Funding 1 Liquidity Facility
Provider or the powers of its directors imposed by or
contained in (i) any law by which it or any of its assets is
bound or affected, or (ii) any agreement to which it is a
party or by which any of its assets is bound.
14.3 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this CLAUSE 14
(Representations and warranties):
(a) are made on the date of this Agreement; and
(b) save in respect of the warranty of the Funding 1 Liquidity
Facility Provider given under CLAUSE 14.2(b) (Tax Status), are
deemed to be repeated by the relevant Party on the date of
each Funding 1 Liquidity Facility Request, each Funding 1
Liquidity Facility Drawdown Date and each Funding 1 Interest
Payment Date with reference to the facts and circumstances
then existing.
15. UNDERTAKINGS
15.1 DURATION
The undertakings in this CLAUSE 15 remain in force from the date of
this Agreement for so long as any amount is or may be outstanding under
this Agreement or any Funding 1 Liquidity Facility Commitment is in
force.
15.2 FINANCIAL INFORMATION
Funding 1 shall supply to the Funding 1 Liquidity Facility Provider and
the Security Trustee:
(a) as soon as the same are available (and in any case before the
latest date for publication in accordance with the Companies
Xxx 0000, as amended), its audited accounts for that financial
year which shall be prepared in accordance with generally
accepted accounting principles; and
(b) promptly such other information as the Security Trustee may
reasonably request.
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15.3 INFORMATION - MISCELLANEOUS
Funding 1 shall supply to the Funding 1 Liquidity Facility Provider
promptly, such further information in its possession or control
regarding its financial condition and operations as it supplies to the
Security Trustee, if the Funding 1 Liquidity Facility Provider so
requests.
15.4 NOTIFICATION OF DEFAULT
Funding 1 shall notify the Funding 1 Liquidity Facility Provider of any
Funding 1 Liquidity Facility Default (and the steps, if any, being
taken to remedy it) promptly upon its occurrence.
15.5 AUTHORISATIONS
Funding 1 shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Funding 1 Liquidity Facility
Provider of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability
of, any Funding 0 Xxxxxxxxx Xxxxxxxx.
00.0 XXXXXX XXXXXX ACTIVITIES
Funding 1 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 income tax principles.
16. DEFAULT
16.1 FUNDING 1 LIQUIDITY FACILITY DEFAULT
Each of the events set out in CLAUSES 16.2 (Non-Payment) to 16.4
(Unlawfulness) (inclusive) is a Funding 1 Liquidity Facility Default
(whether or not caused by any reason whatsoever outside the control of
Funding 1 or any other person).
16.2 NON-PAYMENT
(a) Subject to PARAGRAPH (b) below, Funding 1 does not pay within 3 London
Business Days of the due date any amount payable by it under the
Funding 1 Liquidity Documents at the place at and in the currency in
which it is expressed to be payable.
(b) The Funding 1 Liquidity Facility Provider agrees that the non-payment
of any Funding 1 Liquidity Subordinated Amounts shall only constitute a
Funding 1 Liquidity Facility Default under PARAGRAPH (a) above in
circumstances where Funding 1 has the requisite funds to pay such
amounts in accordance with the Funding 1 Deed of Charge on the relevant
due date and any such Funding 1 Liquidity Subordinated Amounts are not
then paid.
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16.3 INTERCOMPANY LOAN ACCELERATION NOTICE
An Intercompany Loan Acceleration Notice is served or the Security
Trustee having become bound to serve an Intercompany Loan Acceleration
Notice fails to do so within 30 days of becoming so bound.
16.4 UNLAWFULNESS
It is or becomes unlawful for Funding 1 to perform any of its
obligations under the Funding 1 Liquidity Documents.
16.5 ACCELERATION
On and at any time after the occurrence of a Funding 1 Liquidity
Facility Default and subject to CLAUSE 18 (Enforcement and
Subordination) and if such Funding 1 Liquidity Facility Default is
continuing the Funding 1 Liquidity Facility Provider may by notice to
Funding 1:
(a) cancel the Funding 1 Liquidity Facility Commitment; and/or
(b) demand that all or part of the Funding 1 Liquidity Facility
Loans, together with accrued interest, and all other amounts
accrued under this Agreement be immediately due and payable,
whereupon they shall become immediately due and payable;
and/or
(c) demand that all or part of the Funding 1 Liquidity Facility
Loans be payable on demand, whereupon they shall immediately
become payable on demand.
17. FEES
17.1 COMMITMENT FEE
(a) Funding 1 shall (subject to CLAUSE 17.1(b) below and to CLAUSE 18
(Enforcement and Subordination) pay to the Funding 1 Liquidity Facility
Provider a commitment fee computed at the rate of 0.08 per cent. per
annum on the undrawn, uncancelled amount of the Funding 1 Liquidity
Facility Commitment during the period from the date of this Agreement
up to and including the last day of the Funding 1 Liquidity Facility
Commitment Period. Such commitment fee will be inclusive of VAT (if
any) payable thereon.
(b) In the event that a Further Funding 1 Liquidity Stand-by Drawing is
made, the commitment fee referred to in CLAUSE 17.1(a) will not be
payable in respect of that portion of the Further Funding 1 Liquidity
Facility Commitment referable to such Further Funding 1 Liquidity
Stand-by Drawing and Funding 1 will instead (subject to CLAUSE 18
(Enforcement and Subordination) pay to the Funding 1 Liquidity Facility
Provider a contingent fee computed at the rate of 0.38 per cent. per
annum on the Further Funding 1 Liquidity Stand-by Drawing. Such
contingent fee will be inclusive of VAT (if any) payable thereon.
(c) Subject to CLAUSE 18 (Enforcement and Subordination), the accrued
commitment fee is payable quarterly in arrear on each Funding 1
Interest Payment Date. The accrued commitment fee is also payable to
the Funding 1 Liquidity Facility Provider on the cancelled amount of
the Funding 1 Liquidity Facility Commitment at the time the
cancellation takes effect.
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17.2 VAT
(a) Subject to CLAUSE 17.1(a) and CLAUSE 17.1(b) (Commitment fee),
all payments to be made by Funding 1 under the Funding 1
Liquidity Documents are exclusive of VAT chargeable thereon
and Funding 1 shall pay to the Funding 1 Liquidity Facility
Provider a sum in respect of any VAT chargeable in respect of
any supply made by the Funding 1 Liquidity Facility Provider
for the purposes of VAT in connection with the Funding 1
Liquidity Documents.
(b) Where under the Funding 1 Liquidity Documents, Funding 1 is
required to reimburse or indemnify the Funding 1 Liquidity
Facility Provider against any costs, expenses (including legal
fees), loss or liability or otherwise, such obligation to
reimburse or indemnify shall extend to any VAT charged to the
Funding 1 Liquidity Facility Provider on such costs, expenses
(including legal fees) or in respect of such loss, liability
or otherwise which is irrecoverable by the Funding 1 Liquidity
Facility Provider .
18. ENFORCEMENT AND SUBORDINATION
(a) The Funding 1 Liquidity Facility Provider acknowledges to the Security
Trustee that it is bound by the terms of the Funding 1 Deed of Charge
and, in particular, confirms that no sum, whether in respect of
principal or interest or otherwise relating to any Funding 1 Liquidity
Facility Loan, shall be paid by Funding 1 except in accordance with the
provisions of the Funding 1 Cash Management Agreement and the Funding 1
Deed of Charge unless and until all sums required by the Funding 1 Cash
Management Agreement or the Funding 1 Deed of Charge, as the case may
be, to be paid or provided for in priority thereto have been paid or
discharged in full.
(b) The Funding 1 Liquidity Facility Provider further agrees that only the
Security Trustee may enforce the security created in favour of, inter
alia, the Funding 1 Liquidity Facility Provider and the Security
Trustee by the Funding 1 Deed of Charge and that the Funding 1
Liquidity Facility Provider shall not take any steps for the purpose
of:
(i) recovering any debts whatsoever owing to it by Funding 1 save
as provided for in accordance with the terms of the Funding 1
Deed of Charge (including, without limitation, by exercising
any right of set-off); or
(ii) enforcing any rights arising out of this Agreement against
Funding 1; or
(iii) procuring the winding-up, administration or liquidation of
Funding 1 in respect of any of its liabilities whatsoever,
unless the Security Trustee, having become bound to serve an
Intercompany Loan Acceleration Notice, fails to do so within 30 days of
becoming so bound and that failure is continuing (in which case the
Funding 1 Liquidity Facility Provider shall be entitled to take any
such steps and proceedings as it shall deem necessary other than the
presentation of a petition for the winding-up of, or for an
administration order in respect of, Funding 1) provided that the
Funding 1 Liquidity Facility Provider shall not be entitled to take any
steps or proceedings pursuant to this Agreement which would contravene
CLAUSES 5 to 9 of the Funding 1 Deed of Charge.
24
(c) Subject to PARAGRAPH (b) above, the Funding 1 Liquidity Facility
Provider agrees to defer taking any action or proceedings against
Funding 1 to recover any amounts payable by Funding 1 to the Funding 1
Liquidity Facility Provider under this Agreement except to the extent
expressly permitted by the provisions of the Funding 1 Deed of Charge
unless and until (then only to the extent that) Funding 1 has assets
sufficient to meet such claim in full having taken into account all
other liabilities (actual, contingent or prospective) of Funding 1
which under the Funding 1 Deed of Charge rank pari passu with or in
priority to its liabilities to the Funding 1 Liquidity Facility
Provider under this Agreement, provided however that nothing in this
PARAGRAPH (c) shall prevent the Funding 1 Liquidity Facility Provider
from proving for the full amount owed to it by Funding 1 under this
Agreement in the liquidation of Funding 1.
(d) Without prejudice to the other provisions of this CLAUSE 18, the
Funding 1 Liquidity Facility Provider covenants with the Security
Trustee that if, whether in the liquidation of Funding 1 or otherwise
(and notwithstanding the provisions of this CLAUSE 18), any payment
(whether of principal, interest or otherwise) is received by it in
respect of a Funding 1 Liquidity Facility Loan other than in accordance
with CLAUSES 4 and 6 of the Funding 1 Cash Management Agreement and
CLAUSES 7 and 8 of the Funding 1 Deed of Charge, the amount so paid
shall be received and held by the Funding 1 Liquidity Facility Provider
upon trust for the Security Trustee and shall be paid over to the
Security Trustee forthwith upon receipt provided however that this
PARAGRAPH (d) shall have effect only to the extent that it does not
constitute or create and is not deemed to constitute or create any
mortgage, charge or other Security Interest of any kind.
19. EXPENSES
19.1 INITIAL AND SPECIAL COSTS
Subject to CLAUSE 18 (Enforcement and Subordination), Funding 1 shall
forthwith on demand pay the Funding 1 Liquidity Facility Provider the
amount of all costs and expenses (including reasonable legal fees)
incurred by it in connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred to in
this Agreement;
(ii) any other Funding 1 Liquidity Document (other than a
Novation Certificate) executed after the date of this
Agreement;
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of Funding 1 or, in the case of CLAUSE 2.4 (Change of
currency), the Funding 1 Liquidity Facility Provider and
relating to a Funding 1 Liquidity Document or a document
referred to in any Funding 1 Liquidity Document; and
(c) any other matter, not of an ordinary administrative nature,
arising out of or in connection with a Funding 1 Liquidity
Document.
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19.2 ENFORCEMENT COSTS
Subject to CLAUSE 18 (Enforcement and Subordination), Funding 1 shall
forthwith on demand pay to the Funding 1 Liquidity Facility Provider
the amount of all costs and expenses (including legal fees) incurred by
it:
(a) in connection with the enforcement of, or the preservation of
any rights under, any Funding 1 Liquidity Document; or
(b) in investigating any possible Funding 1 Liquidity Facility
Default.
20. STAMP DUTIES
Subject to CLAUSE 18 (Enforcement and Subordination), Funding 1 shall
pay and forthwith on demand indemnify the Funding 1 Liquidity Facility
Provider against any liability it incurs in respect of any stamp,
registration and similar tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Funding 1
Liquidity Document.
21. INDEMNITIES
21.1 CURRENCY INDEMNITY
(a) Subject to CLAUSE 18 (Enforcement and Subordination), if the Funding 1
Liquidity Facility Provider receives an amount in respect of Funding
1's liability under the Funding 1 Liquidity Documents or if that
liability is converted into a claim, proof, judgment or order in a
currency other than the currency (the "CONTRACTUAL CURRENCY") in which
the amount is expressed to be payable under the relevant Funding 1
Liquidity Document:
(i) Funding 1 shall indemnify the Funding 1 Liquidity Facility
Provider as an independent obligation against any loss or
liability arising out of or as a result of the conversion;
(ii) if the amount received by the Funding 1 Liquidity Facility
Provider, when converted into the contractual currency at a
market rate in the usual course of its business, is less than
the amount owed in the contractual currency, Funding 1 shall
forthwith on demand pay to the Funding 1 Liquidity Facility
Provider an amount in the contractual currency equal to the
deficit; and
(iii) Funding 1 shall forthwith on demand pay to the Funding 1
Liquidity Facility Provider on demand any exchange costs and
taxes payable in connection with any such conversion.
(b) Funding 1 waives any right it may have in any jurisdiction to pay any
amount under the Funding 1 Liquidity Documents in a currency other than
that in which it is expressed to be payable.
21.2 OTHER INDEMNITIES
Subject to CLAUSE 18 (Enforcement and Subordination), Funding 1 shall
forthwith on demand indemnify the Funding 1 Liquidity Facility Provider
against any loss or liability which that Funding 1 Liquidity Facility
Provider incurs as a consequence of:
26
(a) the operation of CLAUSE 16.6 (Acceleration) or if the loss or
liability is caused by Funding 1 making a payment other than
in accordance with CLAUSE 9 (Payments);
(b) any payment of principal or an overdue amount being received
from any source otherwise than on its Funding 1 Interest
Payment Date and, for the purposes of this PARAGRAPH (b), the
Funding 1 Interest Payment Date of an overdue amount is the
last day of each Designated Interest Period (as defined in
CLAUSE 8.3 (Default interest)); or
(c) (other than by reason of negligence or default by the Funding
1 Liquidity Facility Provider) a Funding 1 Liquidity Facility
Loan not being made after Funding 1 has delivered a Funding 1
Liquidity Facility Request for that Funding 1 Liquidity
Facility Loan; or
(d) any reasonable costs, including legal fees, which the Funding
1 Liquidity Facility Provider may sustain or incur as a
consequence of any default by Funding 1 in the performance of
any of the obligations expressed to be assumed by it in this
Agreement.
Funding 1's liability in each case includes any loss of margin or other
loss or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Funding 1 Liquidity
Document, any amount repaid or prepaid or any Funding 1 Liquidity
Facility Loan.
22. EVIDENCE AND CALCULATIONS
22.1 ACCOUNTS
Accounts maintained by the Funding 1 Liquidity Facility Provider in
connection with this Agreement are prima facie evidence of the matters
to which they relate.
22.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by the Funding 1 Liquidity Facility
Provider of a rate or amount under this Agreement is, in the absence of
manifest error, conclusive evidence of the matters to which it relates.
22.3 CALCULATIONS
Interest (including any applicable Mandatory Liquid Asset Cost) and the
fee payable under CLAUSE 17.1 (Commitment fee) accrue from day to day
and are calculated on the basis of the actual number of days elapsed
and a year of 365 days or, if market practice dictates, 360 days.
23. AMENDMENTS AND WAIVERS
23.1 PROCEDURE
Subject to CLAUSE 25 of the Funding 1 Deed of Charge (Supplemental
Provisions Regarding the Security Trustee), any term of the Funding 1
Liquidity Documents may be amended or
27
waived with the written agreement of Funding 1, the Security Trustee
and the Funding 1 Liquidity Facility Provider.
23.2 WAIVERS AND REMEDIES CUMULATIVE
The rights of the Funding 1 Liquidity Facility Provider under the
Funding 1 Liquidity Documents:
(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 such right is not a waiver
of that right.
24. CHANGES TO THE PARTIES
24.1 TRANSFERS BY FUNDING 1
Funding 1 may not assign, transfer, novate or dispose of any of, or any
interest in, the Funding 1 Liquidity Facility Commitment and/or rights
and/or obligations under this Agreement except that Funding 1 may
assign its rights under this Agreement to the Security Trustee pursuant
to the Funding 1 Deed of Charge.
24.2 TRANSFER BY THE SECURITY TRUSTEE
The Security Trustee may assign its rights under this Agreement to any
successor security trustee under the Funding 1 Deed of Charge.
24.3 TRANSFERS BY THE CASH MANAGER
The Cash Manager may assign its rights under this Agreement to any
successor Cash Manager under the Cash Management Agreement.
24.4 TRANSFERS BY THE FUNDING 1 LIQUIDITY FACILITY PROVIDER
(a) The Funding 1 Liquidity Facility Provider (the "EXISTING FUNDING 1
LIQUIDITY FACILITY PROVIDER") may, subject to PARAGRAPH (b) below, at
any time assign, transfer or novate any of its rights and/or
obligations under this Agreement to another Qualifying Lender with the
Requisite Ratings (the "NEW FUNDING 1 LIQUIDITY FACILITY PROVIDER")
provided that the then current ratings of the Notes of an Issuer are
not adversely affected thereby.
(b) The prior written consent of Funding 1 and the Security Trustee is
required for any such assignment, transfer or novation, unless a
Funding 1 Liquidity Facility Default is outstanding in which case no
consent is required from Funding 1. However, the prior written consent
of Funding 1 and the Security Trustee must not be unreasonably withheld
or delayed and will be deemed to have been given if, within 14 days of
receipt by Funding 1 or the Security Trustee (as applicable) of an
application for consent, it has not been expressly refused.
28
(c) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with CLAUSE 24.5
(Procedure for novations); or
(ii) the New Funding 1 Liquidity Facility Provider confirms to the
Security Trustee and Funding 1 in writing that it undertakes
to be bound by the terms of this Agreement (including, without
limitation, the representations and warranties) to be made by
it in accordance with CLAUSE 14.2 (Representations and
warranties by the Funding 1 Liquidity Facility Provider) and
the Funding 1 Deed of Charge. On the transfer becoming
effective in this manner the Existing Funding 1 Liquidity
Facility Provider shall be relieved of its obligations under
this Agreement to the extent that they are transferred to the
New Funding 1 Liquidity Facility Provider.
(d) Nothing in this Agreement restricts the ability of the Funding 1
Liquidity Facility Provider to sub-contract an obligation if the
Funding 1 Liquidity Facility Provider remains primarily liable under
this Agreement for that obligation.
(e) The Existing Funding 1 Liquidity Facility Provider is not responsible
to a New Funding 1 Liquidity Facility Provider for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Funding 1 Liquidity Document or any other
document;
(ii) the collectability of amounts payable under any Funding 1
Liquidity Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Funding 1 Liquidity Document.
(f) The New Funding 1 Liquidity Facility Provider confirms to the Existing
Funding 1 Liquidity Facility Provider and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of each of Funding 1 and
its related entities in connection with its participation in
this Agreement and has not relied exclusively on any
information provided to it by the Existing Funding 1 Liquidity
Facility Provider in connection with any Funding 1 Liquidity
Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each of Funding 1 and its related entities
while any amount is or may be outstanding under this Agreement
or any Funding 1 Liquidity Facility Commitment is in force.
(g) Nothing in any Funding 1 Liquidity Document obliges the Existing
Funding 1 Liquidity Facility Provider to:
(i) accept a re-transfer from a New Funding 1 Liquidity Facility
Provider of the Funding 1 Liquidity Facility Commitment and/or
rights and/or obligations assigned, transferred or novated
under this Clause; or
(ii) support any losses incurred by the New Funding 1 Liquidity
Facility Provider by reason of the non-performance by Funding
1 of its obligations under this Agreement or otherwise.
29
(h) Any reference in this Agreement to the Funding 1 Liquidity Facility
Provider includes a New Funding 1 Liquidity Facility Provider.
24.5 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Funding 1 Liquidity Facility Provider and the New
Funding 1 Liquidity Facility Provider deliver to the Security
Trustee a duly completed Novation Certificate, substantially
in the form of SCHEDULE 4; and
(ii) the Security Trustee executes such Novation Certificate.
(b) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:
(i) the Existing Funding 1 Liquidity Facility Provider and the
other Parties (the "EXISTING PARTIES") will be released from
their obligations to each other (the "DISCHARGED
OBLIGATIONS");
(ii) the New Funding 1 Liquidity Facility Provider and the Existing
Parties will assume obligations towards each other which
differ from the Discharged Obligations only insofar as they
are owed to or assumed by the New Funding 1 Liquidity Facility
Provider instead of the Existing Funding 1 Liquidity Facility
Provider;
(iii) the rights of the Existing Funding 1 Liquidity Facility
Provider against the Existing Parties and vice versa (the
"DISCHARGED RIGHTS") will be cancelled; and
(iv) the New Funding 1 Liquidity Facility Provider and the Existing
Parties will acquire rights against each other which differ
from the Discharged Rights only insofar as they are
exercisable by or against the New Funding 1 Liquidity Facility
Provider instead of the Existing Funding 1 Liquidity Facility
Provider,
all on the date of execution of the Novation Certificate by the
Security Trustee or, if later, the date specified in the Novation
Certificate.
25. DISCLOSURE OF INFORMATION
The Funding 1 Liquidity Facility Provider may disclose to any person
with whom it is proposing to enter, or has entered into, any kind of
transfer, participation or other agreement in relation to this
Agreement:
(a) a copy of any Funding 1 Liquidity Document; and
(b) any information which the Funding 1 Liquidity Facility
Provider has acquired under or in connection with any Funding
1 Liquidity Document,
if that person undertakes to Funding 1 and the Security Trustee to keep
the information confidential.
30
26. SET-OFF
(a) The Funding 1 Liquidity Facility Provider undertakes with Funding 1 and
the Security Trustee not to exercise or claim any right of set-off or
combination or consolidation of accounts in respect of any account of
Funding 1 with the Funding 1 Liquidity Facility Provider and/or
interest accruing on amounts in any such account or any part of such
account in or towards, or conditionally upon satisfaction of any
liabilities to the Funding 1 Liquidity Facility Provider of Funding 1
or itself in any other capacity whatsoever or any other person.
(b) In the event that the Funding 1 Liquidity Facility Provider (in breach
of its undertaking in PARAGRAPH (a) above) exercises any right of
set-off or combination or consolidation of accounts, the Funding 1
Liquidity Facility Provider shall pay to Funding 1 such additional
amount so that the net amount received by Funding 1 will equal the full
amount which would have been received by it if the Funding 1 Liquidity
Facility Provider had not exercised or claimed such right of set-off or
combination or consolidation of accounts.
27. SEVERABILITY
If a provision of any Funding 1 Liquidity Document is or becomes
illegal, invalid or unenforceable in any jurisdiction, that shall not
affect:
(a) the legality, validity or enforceability in that jurisdiction
of any other provision of the Funding 1 Liquidity Documents;
or
(b) the legality, validity or enforceability in other
jurisdictions of that or any other provision of the Funding 1
Liquidity Documents.
28. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) each of which, when executed and delivered, shall
constitute an original, but all the counterparts shall together
constitute but one and the same instrument Provided, however, that this
Agreement shall have no force or effect until it is executed by the
last party to execute the same and shall be deemed to have been
executed and delivered in the place where such last party executed this
Agreement.
29. NOTICES
29.1 GIVING OF NOTICES
Any notice, communication or demand made under or in connection with
this Agreement shall be in writing and shall be delivered personally,
or by post, fax or cable to the addresses given in CLAUSE 29.2
(Addresses) or at such other address as the recipient may have notified
to the other party in writing. Proof of posting or despatch of any
notice or communication shall be deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after
posting; and
(b) in the case of a facsimile on the business day of despatch.
31
29.2 ADDRESSES FOR NOTICES
The addresses referred to in this CLAUSE 29 (Notices) are as follows:
(a) in the case of Funding 1, to Permanent Funding (No. 1) Limited
at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (0) 00 0000 0000) for the attention of the
Secretary with a copy to HBOS Treasury Services plc, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile no. +44 (0) 20 7574
8784) for the attention of Head of Capital Markets and
Securitisation;
(b) in the case of the Cash Manager, to Halifax plc at Xxxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (facsimile number +44
(0) 0000 000 000) for the attention of Mortgage Securitisation
Manager with a copy to HBOS Treasury Services plc, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile no. +44 (0) 20 7574
8784) for the attention of Head of Capital Markets and
Securitisation;
(c) in the case of the Security Trustee, to:
(i) State Street Bank and Trust Company, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (facsimile
number + 0 (000) 000 0000) for the attention of Xxxx
Xxxxxx; and
(ii) U.S. Bank National Association, 0 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (facsimile number
+ 0 (000) 000 0000) for the attention of Corporate
Trust Services; and
(d) in the case of the Funding 1 Liquidity Facility Provider, to
JPMorgan Chase Bank, 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX
(facsimile no. x00 00 0000 0000/5311) for the attention of
European Loans,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this CLAUSE 29.
30. THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
31. GOVERNING LAW
This Agreement is governed by and construed in accordance with English
law.
32. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English
32
courts are an inconvenient forum for the maintenance or hearing of such
action or proceeding.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
33
SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1. A copy of the memorandum and articles of association and certificate of
incorporation of Funding 1.
2. A copy of a resolution of the board of directors of Funding 1:
(a) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement;
(b) authorising a specified person or persons to execute this
Agreement on its behalf; and
(c) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices to be
signed and/or despatched by it under or in connection with
this Agreement.
3. A specimen of the signature of each person authorised by the resolution
referred to in PARAGRAPH 2 above.
4. A certificate of an authorised signatory of Funding 1 certifying that
each copy document specified in this Schedule 1 is correct, complete
and in full force and effect as at a date no earlier than the date of
this Agreement.
5. The Transaction Documents.
6. Confirmation from Sidley Xxxxxx Xxxxx & Xxxx as legal counsel to the
Security Trustee that they have received, on behalf of the Security
Trustee, a transaction legal opinion from Xxxxx & Overy.
34
SCHEDULE 2
CALCULATION OF THE MANDATORY LIQUID ASSET COST
(a) For the purposes of PARAGRAPH (a) of the definition of Mandatory Liquid
Asset Cost, the Mandatory Liquid Asset Cost for a Funding 1 Liquidity
Facility Loan for its Funding 1 Liquidity Facility Interest Period is
the rate determined by the Funding 1 Liquidity Facility Provider
(rounded upward, if necessary, to four decimal places) calculated in
accordance with the following formulae:
BY+S(Y-Z)+Fx(0.01)
------------------% per annum = Mandatory Liquid Asset Cost
100-(B+S)
where on the day of application of the formula:
B is the percentage of the Funding 1 Liquidity Facility
Provider's eligible liabilities (in excess of any stated
minimum) which the Bank of England requires the Funding 1
Liquidity Facility Provider to hold on a non-interest-bearing
deposit account in accordance with its cash ratio
requirements;
Y is the applicable LIBOR for that Funding 1 Liquidity Facility
Provider;
S is the percentage of the Funding 1 Liquidity Facility
Provider's eligible liabilities which the Bank of England
requires the Funding 1 Liquidity Facility Provider to place as
a special deposit;
Z is the lower of Y and the interest rate per annum paid by the
Bank of England on special deposits; and
F is the charge payable by the Funding 1 Liquidity Facility
Provider to the Financial Services Authority under the fees
rules (but, for this purpose, calculated by the Funding 1
Liquidity Facility Provider on a notional basis as being the
average of the fee tariffs within fee-block Category A1
(Deposit acceptors) of the fees rules, applying any applicable
discount and ignoring any minimum fee required under the fees
rules) and expressed in pounds per Pound Sterling1 million of
the tariff base of the Funding 1 Liquidity Facility Provider.
(b) For the purposes of this Schedule 2:
(i) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "FEE BASE" means the then current rules on periodic fees in
the Supervision Xxxxxx of the FSA Handbook; and
(iii) "TARIFF BASE" has the meaning given to it in the fees rules.
(c) In the application of the formula, B, Y, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y =
15%, BY is calculated as 0.5 x 15. A negative result obtained by
subtracting Z from Y is taken as zero.
35
(d) (i) Each formula is applied on the first day of the relevant
Funding 1 Liquidity Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(iii) If the formula produces a negative percentage, the percentage
shall be taken as zero.
(e) If the Funding 1 Liquidity Facility Provider determines, after
consultation with the Issuer that a change in circumstances has
rendered, or will render, the formula inappropriate, the Funding 1
Liquidity Facility Provider shall notify the Issuer of the manner in
which the Mandatory Liquidity Asset Cost will subsequently be
calculated. The manner of calculation so notified by the Funding 1
Liquidity Facility Provider shall, in the absence of manifest error, be
binding on all the parties.
36
SCHEDULE 3
FORM OF FUNDING 1 LIQUIDITY FACILITY REQUEST
To: JPMorgan Chase Bank as Funding 1 Liquidity Facility Provider
Copy: State Street Bank and Trust Company and U.S. Bank National Association
(as Security Trustee)
From: Permanent Funding (No. 1) Limited
Date:[ ]
PERMANENT FUNDING (NO. 1) LIMITED
POUND STERLING[[O],000,000] FUNDING 1 LIQUIDITY FACILITY AGREEMENT
DATED 14TH JUNE, 2002 (AS AMENDED AND RESTATED)
1. We wish to borrow [a Further][an Initial] Funding 1 Liquidity [Facility
Drawing/Facility Stand-by Drawing] as follows:
(a) Funding 1 Liquidity Facility Drawdown Date: [ ]
(b) [Further/Initial Funding 1 Liquidity Facility/ Further/Initial
Funding 1 Liquidity Facility Stand-by Facility]*
(c) Amount: Pound Sterling[ ]
(d) Payment Instructions: [ ]**
(e) Term of Funding 1 Liquidity [Facility Drawing/Facility
Stand-by Drawing]: [ ]
2. We confirm that each condition specified in CLAUSE 4.2 (Further
conditions precedent) is satisfied on the date of this Funding 1
Liquidity Facility Request.
3. We confirm that the Funding 1 Liquidity Facility Drawing is to be used
for one of the purposes specified in CLAUSE 3 (Purpose).
By:
PERMANENT FUNDING (NO. 1) LIMITED
Authorised Signatory
-----------------------------
* delete as applicable
** This will be the Funding 1 Liquidity Facility Stand-by Account if this
is a Funding 1 Liquidity Facility Stand-by Drawing.
37
SCHEDULE 4
FORM OF NOVATION CERTIFICATE
To: [State Street Bank and Trust Company and U.S Bank National Association]
(as Security Trustee)
From: [THE EXISTING FUNDING 1 LIQUIDITY FACILITY PROVIDER] and
[THE NEW FUNDING 1 LIQUIDITY FACILITY PROVIDER] Date: [ ]
PERMANENT FUNDING (NO. 1) LIMITED
POUND STERLING[[O],000,000] FUNDING 1 LIQUIDITY
FACILITY AGREEMENT DATED 14TH JUNE, 2002
We refer to CLAUSE 24.5 (Procedure for novations).
1. We JPMorgan Chase Bank (the "EXISTING FUNDING 1 LIQUIDITY FACILITY
PROVIDER") and [ ] (the "NEW FUNDING 1 LIQUIDITY FACILITY PROVIDER")
agree to the Existing Funding 1 Liquidity Facility Provider and the New
Funding 1 Liquidity Facility Provider novating all the Existing Funding
1 Liquidity Facility Provider's FUNDING 1 LIQUIDITY Facility Commitment
(or part) and/or rights and obligations referred to in the Schedule in
accordance with CLAUSE 24.5 (Procedure for novations).
2. The specified date for the purposes of CLAUSE 24.5(b) (Procedure for
novations) is [date of novation].
3. The New Funding 1 Liquidity Facility Provider makes the representations
and warranties to be made by it in accordance with CLAUSE 14
(Representations and warranties) as at [date of novation].
4. The address for notices of the New Funding 1 Liquidity Facility
Provider for the purposes of CLAUSE 29.2 (Addresses for notices) is set
out in the Schedule.
5. This Novation Certificate is governed by English law.
38
THE SCHEDULE
FUNDING 1 LIQUIDITY FACILITY COMMITMENT
AND RIGHTS AND OBLIGATIONS TO BE NOVATED
[insert relevant details]
[NEW FUNDING 1 LIQUIDITY FACILITY PROVIDER]
[Address for notices]
[Existing Funding 1 [New Funding 1 Liquidity [SECURITY TRUSTEE]
Liquidity Facility Provider] Facility Provider]
By: By: By:
Date: Date: Date:
39
SIGNATORIES
FUNDING 1
PERMANENT FUNDING (NO. 1) LIMITED
By:
FUNDING 1 LIQUIDITY FACILITY PROVIDER
JPMORGAN CHASE BANK
By:
CASH MANAGER
HALIFAX plc
By:
SECURITY TRUSTEE
STATE STREET BANK AND TRUST COMPANY
By:
U.S. BANK NATIONAL ASSOCIATION
By:
40
DATED [6TH MARCH], 2003
PERMANENT FUNDING (NO. 1) LIMITED
as Funding 1
- and -
JPMORGAN CHASE BANK
as Funding 1 Liquidity Facility Provider
- and -
HALIFAX plc
as Cash Manager
- and -
STATE STREET BANK AND TRUST COMPANY
and
U.S. BANK NATIONAL ASSOCIATION
as Security Trustee
-------------------------------------------------
AMENDED AND RESTATED FUNDING 1 LIQUIDITY FACILITY AGREEMENT
-------------------------------------------------
XXXXX & XXXXX
London
ICM:655946.3
CONTENTS
CLAUSE PAGE
------ ----
1. DEFINITIONS AND Interpretation.......................................................................1
2. The Funding 1 Liquidity Facility.....................................................................2
3. Purpose..............................................................................................4
4. Conditions Precedent.................................................................................4
5. Drawdown.............................................................................................5
6. Repayment............................................................................................7
7. Cancellation.........................................................................................8
8. Interest............................................................................................10
9. Payments............................................................................................12
10. Taxes...............................................................................................12
11. Market Disruption...................................................................................15
12. Increased Costs.....................................................................................15
13. Illegality..........................................................................................17
14. Representations and Warranties......................................................................17
15. Undertakings........................................................................................20
16. Default.............................................................................................21
17. Fees................................................................................................22
18. Enforcement and subordination.......................................................................23
19. Expenses............................................................................................24
20. Stamp Duties........................................................................................25
21. Indemnities.........................................................................................25
22. Evidence and Calculations...........................................................................26
23. Amendments and Waivers..............................................................................26
24. Changes to the Parties..............................................................................27
25. Disclosure of Information...........................................................................29
26. Set-Off.............................................................................................30
27. Severability........................................................................................30
28. Counterparts........................................................................................30
29. Notices.............................................................................................30
30. third party rights..................................................................................31
31. Governing Law.......................................................................................31
32. Submission to Jurisdiction..........................................................................31
SCHEDULES
1. Conditions Precedent Documents......................................................................33
2. Calculation of the MLA Cost.........................................................................34
3. Form of Liquidity Facility Request..................................................................36
4. Form of Novation Certificate........................................................................37
SIGNATORIES..................................................................................................39
