Exhibit 4.1
EXECUTION COPY
AMENDED AND RESTATED INTERCOMPANY LOAN
TERMS AND CONDITIONS
Signed on 8 December, 2005 for the purposes of identification by:
Xxxxxx Funding Limited:
...............................................
JPMorgan Chase Bank, N.A., London Branch as Security Trustee:
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JPMorgan Chase Bank, N.A., London Branch as Agent Bank:
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XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation........................................................1
2. The Term Advances.....................................................2
3. Purpose...............................................................3
4. Limited Recourse......................................................3
5. Utilisation of the Term Advances......................................4
6. Interest..............................................................5
7. Repayment.............................................................6
8. Prepayment............................................................7
9. Taxes.................................................................8
10. Illegality............................................................8
11. Mitigation............................................................8
12. Representations and Warranties of Funding.............................9
13. Covenants............................................................11
14. Default..............................................................13
15. Default Interest and Indemnity.......................................15
16. Payments.............................................................16
17. Entrenched Provisions................................................17
18. Further Provisions...................................................17
19. Redenomination.......................................................19
20. Governing Law........................................................19
SCHEDULE
1. Notice of Drawdown of a Term Advance.................................20
2. Solvency Certificate.................................................21
3. Form of Relevant Intercompany Loan Confirmation......................23
THESE AMENDED AND RESTATED TERMS AND CONDITIONS ARE MADE ON 8 DECEMBER, 2005 and
signed on the front page hereof for the purposes of identification by Xxxxxx
Funding Limited and JPMorgan Chase Bank, N.A., London Branch in its capacities
as Security Trustee and as Agent Bank.
WHEREAS:
(A) On 26th July, 2000 Xxxxxx Financing (No. 1) PLC (the FIRST ISSUER) made
a loan to Xxxxxx Funding Limited (FUNDING) on the terms set out in the
terms and conditions dated on or about the same date (the INTERCOMPANY
LOAN TERMS AND CONDITIONS) and the separate intercompany loan
confirmation dated 26th July, 2000 (the FIRST ISSUER INTERCOMPANY LOAN
CONFIRMATION (together the FIRST ISSUER INTERCOMPANY LOAN AGREEMENT).
(B) During the period from 26th July, 2000 until the date hereof, Funding
has entered into intercompany loan agreements with each of the Second
Issuer, the Third Issuer, the Fourth Issuer, the Fifth Issuer, the
Sixth Issuer, the Seventh Issuer and the Eighth Issuer on the terms set
out in the Intercompany Loan Terms and Conditions, as amended and
supplemented from time to time, together with the relevant separate
intercompany loan confirmations.
(C) On 8 December, 2005 the Ninth Issuer shall make a loan to Funding on
the terms set out herein and the separate intercompany loan
confirmation dated 8 December, 2005.
(D) From time to time Funding may enter into new intercompany loan
agreements with New Issuers which shall be made on the terms set out in
these Intercompany Loan Terms and Conditions (as the same may be
amended from time to time in the manner set out herein) and the
relevant new intercompany loan confirmation (each a NEW INTERCOMPANY
LOAN CONFIRMATION and together with the Intercompany Loan Terms and
Conditions a NEW INTERCOMPANY LOAN AGREEMENT).
(E) On 29th November, 2000 the signatories to the Intercompany Loan Terms
and Conditions agreed to amend the terms of the Intercompany Loan Term
and Conditions as set out in an Amendment Agreement to the Intercompany
Loan Term and Conditions of the same date.
(F) On 5th July, 2001 the signatories to the Intercompany Loan Terms and
Conditions agreed to amend the terms of the Intercompany Loan Terms and
Conditions as set out in a Second Amendment Agreement to the
Intercompany Loan Terms and Conditions of the same date.
(G) On 1st April, 2004 the signatories to the Intercompany Loan Terms and
Conditions agreed, inter alia, to amend the terms of the Intercompany
Loan Terms and Conditions as set out in the Loan Confirmation - Eighth
Issuer Intercompany Loan Agreement of the same date.
(H) The signatories to the Intercompany Loan Terms and Conditions have now
agreed to amend and restate the terms of the Intercompany Loan Terms
and Conditions as set out herein.
1. INTERPRETATION
1.1 Capitalised terms in these Intercompany Loan Terms and Conditions
shall, except where the context otherwise requires and save where
otherwise defined in these Intercompany Loan Terms and Conditions or
the relevant Intercompany Loan Agreement, have the meanings ascribed to
them in the Master Definitions Schedule dated 8 December, 2005 and
signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May (as the same may be amended, varied or supplemented)
and these Intercompany Loan Terms and Conditions shall be construed
accordingly. References in these Intercompany Loan Terms
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and Conditions to the Intercompany Loan Agreement shall include
references to these Intercompany Loan Terms and Conditions as
incorporated into the Intercompany Loan Agreement by way of reference
and shall be construed accordingly.
1.2 These Amended and Restated Terms and Conditions amend and restate the
Intercompany Loan Terms and Conditions signed for the purposes of
identification by the signatories hereto as amended on 29th November,
2000, 5th July, 2001 and 1st April, 2004 (the PRINCIPAL INTERCOMPANY
LOAN TERMS AND CONDITIONS). As of the date of these Amended and
Restated Intercompany Loan Terms and Conditions, any future rights or
obligations (excluding such obligations accrued to the date of these
Amended and Restated Intercompany Loan Terms and Conditions) of a
signatory or any Issuer under the Principal Intercompany Loan Terms and
Conditions shall be extinguished and shall instead be governed by these
Amended and Restated Terms and Conditions.
1.3 References to these Intercompany Loan Terms and Conditions shall mean
the terms and conditions set out in these Amended and Restated Terms
and Conditions. References in these Intercompany Loan Terms and
Conditions to the Issuer shall be to the Issuer specified in the
applicable Intercompany Loan Confirmation.
2. THE TERM ADVANCES
2.1 CONDITIONS PRECEDENT
Save as the Issuer and the Security Trustee may otherwise agree, the
Term Advances will not be available for utilisation unless:
(a) Funding and the Issuer have signed an Intercompany Loan
Confirmation (generally in the form set out in Schedule 3 to
these Intercompany Loan Terms and Conditions);
(b) the Security Trustee has confirmed to Funding that it or its
advisers have received all of the information and documents
listed in Schedule 1 to the Intercompany Loan Confirmation in
form and substance satisfactory to the Security Trustee; and
(c) the conditions set out in Clause 5.1 (Drawdown conditions
relating to the Term Advances) have been satisfied.
2.2 NEW INTERCOMPANY LOAN AGREEMENTS
Funding may at any time, by written notice to the Security Trustee and
the Rating Agencies, enter into a New Intercompany Loan Agreement with
a New Issuer and draw additional term advances thereunder (each a NEW
TERM ADVANCE). Each New Term Advance will be financed by the issue of
New Notes by the New Issuer, and will only be permitted if the
following conditions precedent are satisfied if on the Drawdown Date:
(a) the proceeds of the New Intercompany Loan are used by Funding
in accordance with Clause 3.1 hereof;
(b) each of the Rating Agencies confirms in writing to the
Security Trustee that there will not, as a result of the New
Issuer issuing any New Notes or Funding entering into any
additional agreements as a result of entering into the New
Intercompany Loan, be any adverse effect on (i) the then
current ratings by the Rating Agencies of the existing Notes
of any Issuer, the proceeds of which have been advanced to
Funding pursuant to, inter alia, these Intercompany Loan Terms
and Conditions or (ii) the then current implicit ratings by
the Rating Agencies of any existing Term Advances;
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(c) no Intercompany Loan Event of Default under any Intercompany
Loan Agreement is continuing or unwaived at the relevant
drawdown date;
(d) the Principal Deficiency Ledger not having a debit balance as
at the relevant date specified above; and
(e) any other relevant conditions precedent specified in the
Intercompany Loan Confirmation.
3. PURPOSE
3.1 PURPOSE AND APPLICATION OF THE TERM ADVANCES
(a) The Term Advances shall be used by Funding either: to pay the
Seller (in whole or in part) for New Loans to be assigned to
the Mortgages Trustee pursuant to the terms of the Mortgage
Sale Agreement (which shall increase the Funding Share of the
Trust Property); and/or
(b) to acquire a portion of the Current Seller Share of the Trust
Property from the Seller pursuant to the terms of the
Mortgages Trust Deed; and/or
(c) to refinance the existing debt of Funding, including any
existing Intercompany Loan; and/or
(d) to fund the First Reserve Fund and/or the Second Reserve Fund
and/or the Funding Reserve Fund.
3.2 APPLICATION OF AMOUNTS
Without prejudice to the obligations of Funding under this Clause 3,
neither the Security Trustee nor any of the Funding Secured Creditors
shall be obliged to concern themselves as to the application of amounts
raised by Funding under the Intercompany Loan Agreement.
4. LIMITED RECOURSE
4.1 RECOURSE LIMITED TO AVAILABLE FUNDS
Each of the Issuer and the Security Trustee agree that the liability of
Funding in respect of its obligations to repay principal and pay
interest or any other amounts due under the Intercompany Loan Agreement
or for any breach of any other representation, warranty, covenant or
undertaking of Funding under the Intercompany Loan Agreement, shall be
limited to amounts standing to the credit of the Funding Transaction
Account and the Funding GIC Account from time to time (including, for
the avoidance of doubt, amounts received by Funding in respect of the
Funding Share of the Trust Property and (except for collateral) from
the Funding Swap Provider); provided that the application of such
amounts to the discharge of Funding's obligations under an Intercompany
Loan Agreement shall be subject to the terms of the Funding Deed of
Charge and the relevant Funding Priority of Payments in all cases.
4.2 SHORTFALL ON FINAL REPAYMENT DATE IN RESPECT OF CERTAIN TERM ADVANCES
(a) Clause 4.2(b) will only apply to those Term Advances specified in
the Intercompany Loan Confirmation.
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(b) On the Final Repayment Date of a specified Term Advance, the
amount of interest and principal due and payable on the
specified Term Advance shall be an amount equal to the sum
available to pay all outstanding interest and/or principal
amounts due (including interest and principal amounts deferred
and unpaid) on such Term Advance after paying amounts of a
higher order of priority in accordance with the relevant
Funding Priority of Payments. To the extent that on the Final
Repayment Date of the specified Term Advance there is a
shortfall between the amount available to pay such interest
and principal on such Term Advance and the amount required to
pay such interest and principal on such Term Advance, then the
shortfall shall be extinguished.
5. UTILISATION OF THE TERM ADVANCES
5.1 DRAWDOWN CONDITIONS RELATING TO THE TERM ADVANCES
Save as otherwise provided in the Intercompany Loan Agreement, the Term
Advances will be made available by the Issuer to Funding on the
relevant Closing Date if:
(a) the Notes have been issued by the Issuer and the subscription
proceeds have been received by or on behalf of the Issuer;
(b) not later than 2.00 p.m. (London time) on the relevant Closing
Date (or such later time as may be agreed by Funding, the
Issuer and the Security Trustee), the Issuer and the Security
Trustee have received from Funding a Drawdown Notice
requesting a drawing under the Intercompany Loan Agreement,
receipt of which shall (subject to the terms of the
Intercompany Loan Agreement and to the issue of the Notes by
the Issuer) oblige Funding to borrow the whole of the amount
requested in the Drawdown Notice on the date stated in the
Drawdown Notice (which shall be the relevant Closing Date)
upon the terms and subject to the conditions contained in the
Intercompany Loan Agreement;
(c) Funding has confirmed in the relevant Drawdown Notice that:
(i) no Intercompany Loan Event of Default has occurred
and is continuing unremedied (if capable of remedy)
or unwaived or would result from the making of the
Term Advances;
(ii) the representations set out in Clause 12
(Representations and warranties of Funding) are true
on and as of the Closing Date by reference to the
facts and circumstances then existing;
(d) the aggregate principal amount of the Term Advances to be
drawn on the Drawdown Date would not exceed the amount
available for drawing under the Intercompany Loan Agreement as
at the relevant Drawdown Date; and
(e) Funding has delivered a solvency certificate substantially in
the form set out in Schedule 2 to these Intercompany Loan
Terms and Conditions.
5.2 SINGLE DRAWING OF THE TERM ADVANCES
Each of the Term Advances will only be available for drawing in one
amount by Funding on the relevant Closing Date subject to satisfaction
of the matters specified in Clause 2.1 (Conditions precedent) and
Clause 5.1 (Drawdown conditions relating to the Term Advances).
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6. INTEREST
6.1 INTEREST PERIODS
(a) The first Interest Period will commence on (and include) the
Drawdown Date of the Term Advances and end on (but exclude)
the first Interest Payment Date falling thereafter. Each
subsequent Interest Period shall commence on (and include) an
Interest Payment Date and end on (but exclude) the next
following Interest Payment Date.
(b) Whenever it is necessary to compute an amount of interest in
respect of the Term Advances for any period (including any
Interest Period), such interest shall be calculated on the
basis of actual days elapsed in a 365 day year.
6.2 DETERMINATION OF TERM ADVANCE RATES OF INTEREST
(a) The rate of interest payable in respect of each Term Advance
(each a TERM ADVANCE RATE OF INTEREST and together the TERM
ADVANCE RATES OF INTEREST) shall be calculated as follows:
(i) On the first TERM ADVANCE INTEREST DETERMINATION DATE
(being the first day of the Interest Period for which
the rate will apply) of the Term Advances, the Agent
Bank will determine the Term Advance Rates of
Interest in accordance with the provisions of the
Intercompany Loan Confirmation;
(ii) on each subsequent Term Advance Interest
Determination Date, the Agent Bank will determine the
Relevant Screen Rate in respect of each Term Advance
as at or about 11.00 a.m. (London time) on the Term
Advance Interest Determination Date in question. If
the Relevant Screen Rate is unavailable, the Agent
Bank will request the principal London office of each
of the Reference Banks to provide the Agent Bank with
its offered quotation to leading banks for
three-month Sterling deposits of (pound)10,000,000 in
the London inter-bank market as at or about 11.00
a.m. (London time) on the Term Advance Interest
Determination Date and the Term Advance Rates of
Interest for the relevant Interest Period shall be
the aggregate of (a) the Relevant Margin (as defined
in the relevant Intercompany Loan Confirmation) for
the Term Advances and (b) the Relevant Screen Rate
for the Term Advances or, if the Relevant Screen Rate
is unavailable, the arithmetic mean of such offered
quotations for Sterling deposits (rounded upwards, if
necessary, to five decimal places); and
(iii) if on any Term Advance Interest Determination Date,
the Relevant Screen Rate is unavailable and two or
three only of the Reference Banks provide offered
quotations, the Term Advance Rates of Interest for
the relevant Interest Period shall be determined in
accordance with the provisions of sub-paragraph (i)
or (ii) above on the basis of the offered quotations
of those Reference Banks providing such quotations.
If, on any such Term Advance Interest Determination
Date, only one or none of the Reference Banks provide
the Agent Bank with such an offered quotation, the
Agent Bank shall forthwith consult with the Security
Trustee and the Issuer for the purposes of agreeing
two banks (or, where one only of the Reference Banks
provided such a quotation, one additional bank) to
provide such a quotation or quotations to the Agent
Bank (which bank or banks are in the opinion of the
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Security Trustee suitable for such purpose) and the
Term Advance Rates of Interest for the Interest
Period in question shall be determined, as aforesaid,
on the basis of the offered quotations of such banks
as so agreed (or, as the case may be, the offered
quotations of such bank as so agreed and the relevant
Reference Bank). If no such bank or banks is or are
so agreed or such bank or banks as so agreed does or
do not provide such a quotation or quotations, then
the Term Advance Rates of Interest for the relevant
Interest Period shall be the Term Advance Rates of
Interest in effect for the last preceding Interest
Period to which sub-paragraph (i) or (ii) shall have
applied but taking account of any change in the
Relevant Margin.
There will be no maximum or minimum Term Advance Rate of
Interest.
(b) The Agent Bank shall, as soon as practicable after 11.00 a.m.
(London time) on each Term Advance Interest Determination
Date, determine and notify the Issuer, Funding, the Cash
Manager and the Security Trustee of (i) the Term Advance Rates
of Interest applicable to the relevant Interest Period and
(ii) the sterling amount (the INTEREST AMOUNT) payable in
respect of such Interest Period in respect of the Outstanding
Principal Balance of each Term Advance. The Interest Amount in
respect of each Term Advance shall be determined by applying
the relevant Term Advance Rate of Interest to the Outstanding
Principal Balance of the relevant Term Advance, multiplying
the sum by a fraction equal to the actual number of days in
the relevant Interest Period divided by 365 days and rounding
the resultant figure to the nearest xxxxx (half a xxxxx being
rounded upwards).
(c) If the Agent Bank does not at any time for any reason
determine the Term Advance Rate of Interest and/or calculate
the Interest Amount for any of the Term Advances in accordance
with the foregoing paragraphs, the Security Trustee shall (i)
determine the Term Advance Rate of Interest at such rate as
(having such regard as it shall think fit to the procedure
described above) it shall deem fair and reasonable in all the
circumstances and/or (as the case may be) (ii) calculate the
Interest Amount for each Term Advance and any such
determination and/or calculation shall be deemed to have been
made by the Agent Bank.
(d) All notifications, opinions, determinations, certificates,
calculations, quotations and decisions given, expressed, made
or obtained for the purposes of this Clause 6, whether by the
Reference Banks (or any of them) or any other bank or the
Agent Bank or the Security Trustee shall (in the absence of
wilful default, bad faith or manifest error) be binding on
Funding, the Issuer, the Cash Manager, the Reference Banks,
such bank, the Agent Bank, the Security Trustee and (in such
absence as aforesaid) no liability to Funding shall attach to
the Issuer, the Reference Banks, such bank, the Agent Bank,
the Security Trustee or the Cash Manager in connection with
the exercise or non-exercise by them or any of them of their
powers, duties and discretions hereunder.
7. REPAYMENT
7.1 REPAYMENT ON INTEREST PAYMENT DATES
Each Term Advance shall be repaid on the Interest Payment Dates
specified in the Intercompany Loan Confirmation.
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7.2 TERM ADVANCE RATINGS DETERMINE ORDER OF REPAYMENT
(a) Unless otherwise specified in the Intercompany Loan
Confirmation, each Term Advance shall be repaid (as to both
interest and principal) in accordance with the Term Advance
Rating of that Term Advance, such that, to the extent that
amounts are due and payable on more than one Term Advance on
any Interest Payment Date, the Term Advance with the highest
Term Advance Rating shall be repaid (as to both interest and
principal) ahead of the Term Advances with the next highest
Term Advance Rating, down to the Term Advances with the lowest
Term Advance Rating being repaid (as to both interest and
principal) only after all of the Term Advances with higher
Term Advance Ratings have been repaid.
(b) The Term Advances shall be funded by a class or classes of
Notes issued by the Issuer. The Term Advance Ratings shall be
determined by the rating assigned by the Rating Agencies to
the relevant class of Notes on the Closing Date. If the
ratings assigned to the Notes change after the Closing Date,
then that shall not affect the designated Term Advance
Ratings. If the ratings assigned to two or more Term Advances
(including any New Term Advances) are the same, then those
Term Advances and New Term Advances will be repaid (as to both
interest and principal) pro rata and pari passu (but subject
to the relevant Schedule Repayment Dates and permitted
repayment dates thereof). If the ratings assigned to a class
of Notes by the Rating Agencies are not consistent, then the
affected Term Advance will reflect all the ratings assigned to
it and Funding will make payments on such Term Advance after
making payments on Term Advances with a Term Advance Rating
equivalent to or higher than the highest of the ratings
assigned to the affected Term Advance and before Term Advances
with a Term Advance Rating equivalent to or lower than the
lowest of the ratings assigned to the affected Term Advance
(unless otherwise agreed with the Security Trustee and the
Rating Agencies).
(c) The Term Advance Ratings for each Term Advance are specified
in the Intercompany Loan Confirmation.
8. PREPAYMENT
8.1 PREPAYMENT FOR TAXATION OR OTHER REASONS
If:
(a) the total amount in respect of interest in relation to any
Intercompany Loan ceases to be receivable (on account of any
present or future Taxes, duties, assessments or governmental
charges of whatever nature); or
(b) a Term Advance becomes illegal as described in Clause 10
(Illegality); or
(c) the Issuer is required to deduct or withhold from any payment
of principal, interest or premium in respect of its Notes any
amount for or on account of Tax,
then, without prejudice to the obligations of Funding under Clause 10
(Illegality) and subject to Clause 11 (Mitigation), Funding may, on any
Interest Payment Date having given not more than 60 days and not less
than 30 days' (or such shorter period as may be required by any
relevant law in the case of any Term Advance which becomes illegal
pursuant to Clause 10 (Illegality)) prior written notice to the Issuer
and the Security Trustee (or on or before the latest date permitted by
the relevant law in the case of Clause 10 (Illegality)) and while the
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relevant c ircumstances continue, prepay all but not some only of all
of the Term Advances without penalty or premium but subject to Clause
15 (Default interest and indemnity).
8.2 APPLICATION OF MONIES
The Issuer hereby agrees to apply any amounts received by way of
prepayment pursuant to Clauses 7.1 (Repayment on Interest Payment
Dates) and 8.1 (Prepayment for taxation or other reasons) in making
prepayments under the Notes.
8.3 FUNDING LEDGERS
Funding shall maintain, or cause to be maintained, the Funding Ledgers
in accordance with the Cash Management Agreement.
9. TAXES
9.1 NO GROSS UP
All payments by Funding under the Intercompany Loan Agreements shall be
made without any deduction or withholding for or on account of and free
and clear of, any Taxes, except to the extent that Funding is required
by law to make payment subject to any Taxes.
9.2 TAX RECEIPTS
All Taxes required by law to be deducted or withheld by Funding from
any amounts paid or payable under the Intercompany Loan Agreement shall
be paid by Funding when due and Funding shall, within 30 days of the
payment being made, deliver to the Issuer evidence satisfactory to that
Issuer (including all relevant Tax receipts) that the payment has been
duly remitted to the appropriate authority.
10. ILLEGALITY
If, at any time, it is unlawful for the Issuer to make, fund or allow
to remain outstanding a Term Advance made or to be made by it under the
Intercompany Loan Agreement, then the Issuer shall, promptly after
becoming aware of the same, deliver to Funding, the Security Trustee
and the Rating Agencies a certificate to that effect and if the Issuer
so requires, Funding shall promptly to the extent necessary to cure
such illegality prepay all the Term Advances subject to and in
accordance with the provisions of Clause 8.1 (Prepayment for taxation
or other reasons).
11. MITIGATION
If circumstances arise in respect of the Issuer which would, or would
upon the giving of notice, result in:
(a) the prepayment of the Term Advances pursuant to Clause 10
(Illegality);
(b) a withholding or deduction from the amount to be paid by
Funding on account of Taxes, pursuant to Clause 9 (Taxes),
then, without in any way limiting, reducing or otherwise
qualifying the obligations of Funding under the Intercompany
Loan Agreement, the Issuer shall:
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(i) promptly upon becoming aware of the circumstances, notify the
Security Trustee, Funding and the Rating Agencies; and
(ii) upon written request from Funding, take such steps as may be
practical to mitigate the effects of those circumstances
including (without limitation) the assignment of all its
rights under the Intercompany Loan Agreement to, and
assumption of all its obligations under that Intercompany Loan
Agreement by, another company, which is willing to participate
in the relevant Term Advances in its place and which is not
subject to (a) and/or (b) above,
provided that no such transfer or assignment and transfer may be
permitted unless the Rating Agencies confirm in writing that there will
be no downgrading of the then current rating of the Notes of any Issuer
as a result and Funding indemnifies the Issuers for any reasonable
costs and expenses properly incurred as a result of such transfer or
assignment.
12. REPRESENTATIONS AND WARRANTIES OF FUNDING
12.1 REPRESENTATIONS AND WARRANTIES
Funding makes the representations and warranties set out in this Clause
12 to the Issuer and the Security Trustee (as trustee for each of the
Funding Secured Creditors).
12.2 STATUS
(a) It is a limited liability company duly incorporated, validly
existing and registered under the laws of the jurisdiction in
which it is incorporated, capable of being sued in its own
right and not subject to any immunity from any proceedings;
and
(b) It has the power to own its property and assets and to carry
on its business as it is being conducted.
12.3 POWERS AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary corporate and other action to authorise the execution,
delivery and performance by it of each of the Transaction Documents to
which it is a party.
12.4 LEGAL VALIDITY
Each Transaction Document to which it is or will be a party constitutes
or when executed in accordance with its terms will constitute, a legal,
valid and binding obligation enforceable in accordance with its terms,
subject to general equitable principles, insolvency, liquidation and
other laws affecting creditors rights generally.
12.5 NON-CONFLICT
The execution by it of each of the Transaction Documents to which it is
a party and the exercise by it of its rights and the performance of its
obligations under such Transaction Documents including, without
limitation, borrowing pursuant to the terms of the Intercompany Loan
Agreement or granting any security contemplated by the Transaction
Documents will not:
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(a) result in the existence or imposition of nor oblige it to
create any Security Interest in favour of any person (other
than the Funding Secured Creditors) over all or any of its
present or future revenues or assets;
(b) conflict with any document which is binding upon it or any of
its assets;
(c) conflict with its constitutional documents; or
(d) conflict with any law, regulation or official or judicial
order of any government, governmental body or court, domestic
or foreign, having jurisdiction over it.
12.6 NO LITIGATION
No litigation, arbitration or administrative proceedings are current
or, to its knowledge, pending or threatened.
12.7 NO DEFAULT
No Intercompany Loan Event of Default is continuing unremedied (if
capable of remedy) or unwaived or would result from the making of any
Term Advance.
12.8 AUTHORISATIONS
All governmental consents, licences and other approvals and
authorisations required or desirable in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Transaction Documents have been obtained or
effected (as appropriate) and are in full force and effect.
12.9 REGISTRATION REQUIREMENTS
Except for due registration of the Funding Deed of Charge under Section
395 of the Companies Xxx 0000, it is not necessary that the Funding
Deed of Charge or the Intercompany Loan Agreement be filed, recorded or
enrolled with any authority or that, except for registration fees
payable at Companies Registry in respect of the Security Documents, any
stamp, registration or similar tax be paid on or in respect thereof.
12.10 RANKING OF SECURITY
The security conferred by the Funding Deed of Charge constitutes a
first priority security interest, over the security assets referred to,
in the Funding Deed of Charge and the security assets are not subject
to any prior or pari passu Security Interests.
12.11 NO OTHER BUSINESS
(a) 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
(b) it is not party to any material agreements other than the
Transaction Documents.
12.12 OWNERSHIP
(a) Its entire issued share capital is legally and beneficially
owned and controlled by Holdings; and
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(b) its shares are fully paid.
12.13 GOOD TITLE AS TO ASSETS
Funding is and will remain the absolute beneficial owner of the Funding
Share and absolute legal and beneficial owner of all other assets
charged or assigned by the Funding Deed of Charge to which it is a
party.
12.14 TAX
(a) It is tax resident and legally domiciled in its jurisdiction
of incorporation; and
(b) it has no branch, business establishment or other fixed
establishment outside the United Kingdom.
12.15 REPETITION
The representations in this Clause 12 shall survive the execution of
the Intercompany Loan Agreement and the making of each Term Advance
under the Intercompany Loan Agreement, and shall be repeated by Funding
on each Interest Payment Date after the date of the Intercompany Loan
Agreement by reference to the facts and circumstances then subsisting.
13. COVENANTS
13.1 DURATION
The undertakings in this Clause 13 remain in force from the date of the
Intercompany Loan Agreement for so long as any amount is or may be
outstanding under the Intercompany Loan Agreement.
13.2 INFORMATION
Funding shall supply to the Security Trustee and the Rating Agencies:
(a) as soon as the same are available its audited accounts for
each Financial Year; and
(b) promptly, such other information in connection with the
matters contemplated by the Transaction Documents as the
Security Trustee or the Rating Agencies may reasonably
request.
13.3 NOTIFICATION OF DEFAULT
Funding shall notify the Issuer and the Security Trustee of any
Intercompany Loan Event of Default (and the steps, if any, being taken
to remedy it) promptly upon its occurrence.
13.4 AUTHORISATIONS
Funding shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) upon request, supply certified copies to the Issuer and the
Security Trustee of,
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any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability
of, any Transaction Document to which it is a party.
13.5 PARI PASSU RANKING
Funding shall procure that its obligations under the Transaction
Documents do and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations
mandatorily preferred by law.
13.6 NEGATIVE PLEDGE
Funding shall not create or permit to subsist any security interest
(including but not limited to any mortgage, standard security, charge
(whether legal or equitable), assignment by way of security, pledge,
lien, hypothecation or other security interest securing any obligation
of any person (including, without limitation, any trust or arrangement
having the effect of providing security)) over or in respect of any of
its assets (unless arising by operation of law) other than as provided
pursuant to the Transaction Documents.
13.7 DISPOSALS
Funding shall not either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of all or any
part of its assets, properties or undertakings or any interest, estate,
right, title or benefit therein, other than as provided for pursuant to
the Transaction Documents.
13.8 MERGERS AND ACQUISITIONS
(a) Funding shall not enter into any amalgamation, demerger,
merger or reconstruction.
(b) Funding shall not acquire any assets or business or make any
investments other than as contemplated in the Transaction
Documents.
13.9 LENDING AND BORROWING
(a) Funding shall not make any loans or provide any other form of
credit to any person.
(b) Funding shall not give any guarantee or indemnity to or for
the benefit of any person in respect of any obligation of any
other person or enter into any document under which Funding
assumes any liability of any other person.
(c) Funding shall not incur any indebtedness in respect of any
borrowed money other than under the Transaction Documents.
13.10 SHARES AND DIVIDENDS
Funding shall not:
(a) declare or pay any dividend or make any other distribution in
respect of any of its shares other than in accordance with the
Funding Deed of Charge;
(b) issue any further shares or alter any rights attaching to its
issued shares as at the date hereof; or
(c) repay or redeem any of its share capital.
12
13.11 CHANGE OF BUSINESS
(a) Funding shall not carry on any business or engage in any
activity other than as contemplated by the Transaction
Documents.
(b) Funding shall not have any subsidiaries or subsidiary
undertakings as defined in the Companies Xxx 0000.
(c) Funding shall not have any employees or own any premises.
13.12 TAX
(a) Funding shall join with the Issuer in making a group income
election under section 247 of the Income and Corporation
Taxes Act 1988 in relation to any such payments as are
referred to in section 247(4) of that Act and which are made
under the Intercompany Loan Agreement by Funding to the
Issuer and Funding will ensure that no steps will be taken
(whether by act, omission or otherwise) by it which would
reasonably be expected to lead to the revocation or
invalidation of the aforementioned election. Funding shall
immediately notify the Issuer and the Security Trustee if it
becomes aware that the aforementioned election has ceased to
be in full force and effect or if circumstances arise, of
which it is aware, which would be reasonably likely to result
in that election ceasing to be in full force and effect; and
(b) Funding shall not apply to become part of any group for the
purposes of section 43 of the Value Added Tax Xxx 0000 with
the Issuer unless required to do so by law.
13.13 UNITED STATES ACTIVITIES
Funding will not engage in any activities in the United States
(directly or through agents), will not derive any income from United
States sources as determined under United States income tax principles
and will not hold any property if doing so would cause it to be engaged
or deemed to be engaged in a trade or business within the United States
as determined under United States tax principles.
13.14 CENTRE OF MAIN INTERESTS
Funding shall maintain its registered office in the United Kingdom and
shall maintain its "centre of main interests" (as that expression is
defined in Council Regulation (EC) No. 1346/2000 of 29th May, 2000) in
the United Kingdom.
14. DEFAULT
14.1 INTERCOMPANY LOAN EVENTS OF DEFAULT
Each of the events set out in Clause 14.2 to Clause 14.9 (inclusive) is
an Intercompany Loan Event of Default (whether or not caused by any
reason whatsoever outside the control of Funding or any other person).
14.2 NON-PAYMENT
Subject to Clause 4.1, Funding does not pay on the due date or for a
period of three London Business Days after such due date any amount
payable by it under any Intercompany Loan Agreement at the place at and
in the currency in which it is expressed to be payable.
13
14.3 BREACH OF OTHER OBLIGATIONS
Funding does not comply in any material respect with any of its
obligations under the Transaction Documents (other than those referred
to in Clause 14.2 (Non-payment)) and such non-compliance, if capable of
remedy, is not remedied promptly and in any event within twenty London
Business Days of Funding becoming aware of the non-compliance or
receipt of a notice from the Security Trustee requiring Funding's
non-compliance to be remedied.
14.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Transaction Document or in any document delivered
by or on behalf of Funding under or in connection with any Transaction
Document is incorrect in any material respect when made or deemed to be
made or repeated.
14.5 INSOLVENCY
Any corporate action is taken by Funding, or any legal proceedings are
started, for the winding-up, dissolution, administration or appointment
of a liquidator, receiver, administrator, administrative receiver,
trustee or similar officer of Funding or of any or all of Funding's
revenues and assets or any application is made or petition is lodged
for the making of an administration order in relation to Funding.
14.6 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset
of Funding and is not discharged within twenty London Business Days.
14.7 UNLAWFULNESS
It is or becomes unlawful for Funding to perform any of its obligations
under any Transaction Document.
14.8 THE FUNDING DEED OF CHARGE
The Funding Deed of Charge is not, or is alleged by Funding not to be,
binding on or enforceable against Funding or effective to create the
first priority security intended to be created by it.
14.9 OWNERSHIP
The entire issued share capital of Funding ceases to be legally and
beneficially owned and controlled by Holdings.
14.10 ACCELERATION
Upon the occurrence of an Intercompany Loan Event of Default which is
continuing unremedied and/or has not been waived, the Security Trustee
may by written notice to Funding (the INTERCOMPANY LOAN ENFORCEMENT
NOTICE) which is copied to each of the Funding Secured Creditors and
the Mortgages Trustee:
(a) declare the relevant Term Advances to be immediately due and
payable (whereupon the same shall, subject to Clause 14.11
(Repayment of Term Loan on acceleration),
14
become so payable together with accrued interest thereon and
any other sums then owed by Funding under the relevant
Intercompany Loan Agreement; and/or
(b) declare the relevant Term Advances to be due and payable on
demand of the Security Trustee.
14.11 REPAYMENT OF TERM LOAN ON ACCELERATION
Upon the Security Trustee declaring the Term Advances to be immediately due and
payable pursuant to Clause 14.10(a) (Acceleration), the amount due and payable
in respect of the Term Advances shall be calculated on the basis described in
Clause 8.1 (Prepayment for taxation or other reasons).
15. DEFAULT INTEREST AND INDEMNITY
15.1 DEFAULT LOAN INTEREST PERIODS
If any sum due and payable by Funding under the Intercompany Loan
Agreement is not paid on the due date for payment in accordance with
the relevant provision of the Intercompany Loan Agreement or if any sum
due and payable by Funding under any judgment or decree of any court in
connection with the Intercompany Loan Agreement is not paid on the date
of such judgment or decree, the period beginning on such due date or,
as the case may be, the date of such judgment or decree and ending on
the date upon which the obligation of Funding to pay such sum (the
balance thereof for the time being unpaid being herein referred to as
an UNPAID SUM) is discharged shall be divided into successive periods,
each of which (other than the first) shall start on the last day of the
preceding such period and the duration of each of which shall (except
as otherwise provided in this Clause 15) be selected by the Security
Trustee having regard to when such unpaid sum is likely to be paid.
15.2 DEFAULT INTEREST
During each such period relating to an unpaid sum as is mentioned in
this Clause 15 an unpaid sum shall bear interest at the rate per annum
which the Issuer, acting reasonably, determines and certifies to
Funding and the Security Trustee, will be sufficient to enable it to
pay interest and other costs and indemnities on or in respect of any
amount which the Issuer does not pay as a result of a non-payment under
the Intercompany Loan Agreement.
15.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 15.2 (Default
interest) in respect of an unpaid sum shall be due and payable and
shall be paid by Funding at the end of the period by reference to which
it is calculated or on such other date or dates as the Security Trustee
may specify by written notice to Funding.
15.4 BROKEN PERIODS
Funding shall forthwith on demand indemnify the Issuer against any loss
or liability that the Issuer incurs as a consequence of any payment of
principal being received from any source otherwise than on a Interest
Payment Date or an overdue amount being received otherwise than on its
due date.
15.5 FUNDING'S PAYMENT INDEMNITY
Funding undertakes to indemnify the Issuer:
15
(a) against any cost, claim, loss, expense (including legal fees)
or liability together with any amount in respect of
Irrecoverable VAT thereon (other than by reason of the
negligence or wilful default by the Issuer), which it may
sustain or incur as a consequence of the occurrence of any
Intercompany Loan Event of Default or any default by Funding
in the performance of any of the obligations expressed to be
assumed by it in any of the Transaction Documents (other than
by reason of negligence or wilful default on the part of the
Issuer or prior breach by the Issuer of the terms of any of
the Transaction Documents to which it is a party);
(b) against any loss it may suffer as a result of its funding a
Term Advance requested by Funding under the Intercompany Loan
Agreement (which shall include the amounts referred to in
Clause 6 of the Intercompany Loan Confirmation) but not made;
and
(c) against any other loss or liability (other than by reason of
the negligence or default of the Issuer or breach by the
Issuer of the terms of any of the Transaction Documents to
which it is a party (except where such breach is caused by the
prior breach of Funding) or loss of profit) it may suffer by
reason of having made the Term Advances available or entering
into the Intercompany Loan Agreement or enforcing any security
granted pursuant to the Funding Deed of Charge.
16. PAYMENTS
16.1 PAYMENT
(a) Subject to Clause 4 (Limited Recourse), interest and principal
shall be paid on the Term Advances for value by Funding to the
Issuer Transaction Account specified by the Issuer in the
Intercompany Loan Confirmation on each Interest Payment Date
and the relevant irrevocable payment instruction for such
payment shall be given by Funding by no later than noon to the
Cash Manager under the Cash Management Agreement (with a copy
to the Issuer and the Security Trustee) on the Intercompany
Loan Determination Date immediately before the relevant
Interest Payment Date.
(b) On each date on which the Intercompany Loan Agreement requires
an amount to be paid by Funding under that Intercompany Loan
Agreement, Funding shall, unless the Intercompany Loan
Agreement specifies otherwise, make the same available to the
Issuer in accordance with the terms of the Intercompany Loan
Agreement and by payment in Sterling in immediately available,
freely transferable, cleared funds to the Issuer Transaction
Account specified in the Intercompany Company Loan
Confirmation or, if the Intercompany Loan Agreement specifies
otherwise, to the relevant account or to such other account as
the Issuer (with the consent of the Security Trustee) may
notify to Funding for this purpose.
16.2 ALTERNATIVE PAYMENT ARRANGEMENTS
If, at any time, it shall become impracticable (by reason of any action
of any governmental authority or any change in law, exchange control
regulations or any similar event) for Funding to make any payments
under the Intercompany Loan Agreement in the manner specified in Clause
16.1 (Payment), then Funding shall make such alternative arrangements
for the payment direct to the Issuer of amounts due under the
Intercompany Loan Agreement as are acceptable to the Security Trustee
(acting reasonably).
16
16.3 NO SET-OFF
Subject to the terms of the Intercompany Loan Confirmation, all
payments required to be made by Funding under the Intercompany Loan
Agreement shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without any
deduction for or on account of any set-off or counterclaim.
17. ENTRENCHED PROVISIONS
Each of Funding, the Issuer and the Security Trustee acknowledge and
agree that Funding may from time to time enter into New Intercompany
Loan Agreements subject to the provisions of Clause 2 of these
Intercompany Loan Terms and Conditions. If Funding intends to enter
into a New Intercompany Loan Agreement then the provisions of these
Intercompany Loan Terms and Conditions may be varied (with the consent
of the parties to these Intercompany Loan Terms and Conditions) in the
Intercompany Loan Confirmation to the extent necessary to reflect the
terms of that New Intercompany Loan PROVIDED THAT no variation shall be
made to any of the following terms without the prior written consent of
the Funding Secured Creditors and the Rating Agencies:
(a) the Interest Payment Dates;
(b) the determination of the Term Advance Rates of Interest (other
than the Relevant Margin);
(c) Clause 4 (Limited Recourse);
(d) Clause 7 (Repayment); and
(e) Clause 9 (Taxes).
18. FURTHER PROVISIONS
18.1 EVIDENCE OF INDEBTEDNESS
In any proceeding, action or claim relating to the Intercompany Loan
Agreement a statement as to any amount due to the Issuer under the
Intercompany Loan Agreement which is certified as being correct by an
officer of the Security Trustee shall, unless otherwise provided in the
Intercompany Loan Agreement, be prima facie evidence that such amount
is in fact due and payable.
18.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Issuer and the Security Trustee under the
Intercompany Loan Agreement:
(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.
17
18.3 SEVERABILITY
If a provision of the Intercompany Loan Agreement is or becomes
illegal, invalid or unenforceable in any jurisdiction, that shall not
affect:
(a) the validity or enforceability in that jurisdiction of any
other provision of the Intercompany Loan Agreement; or
(b) the validity or enforceability in other jurisdictions of that
or any other provision of the Intercompany Loan Agreement.
18.4 NOTICES
Any notices to be given pursuant to the Intercompany Loan Agreement to
any of the parties thereto shall be sufficiently served if sent by
prepaid first class post, by hand or facsimile transmission and shall
be deemed to be given (in the case of facsimile transmission) when
despatched, (where delivered by hand) on the day of delivery if
delivered before 5.00pm (London time) on a London Business Day or on
the next London Business Day if delivered thereafter or on a day which
is not a London Business Day or (in the case of first class post) when
it would be received in the ordinary course of post and shall be sent
to such addresses as are set out in the Intercompany Loan Confirmation
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 18.4.
18.5 VARIATION
Subject to Clause 17 (Entrenched Provisions), no variation of any
provision(s) of the Intercompany Loan Agreement shall be effective
unless it is in writing and signed by (or by a person duly authorised
by) each of the parties to the Intercompany Loan Agreement.
18.6 SECURITY TRUSTEE
The Security Trustee shall have no responsibility for any of the
obligations of the Issuers or any other party to the Intercompany Loan
Agreements (other than itself). For the avoidance of doubt, the parties
to the Intercompany Loan Agreement acknowledge that the rights and
obligations of the Security Trustee under the Intercompany Loan
Agreements are governed by the Funding Deed of Charge.
18.7 COUNTERPARTS
The Intercompany Loan Agreement may be signed (manually or by
facsimile) and delivered in more than one counterpart all of which,
taken together, shall constitute one and the same Agreement.
18.8 THIRD PARTY RIGHTS
The Intercompany Loan Agreement does not create any right under the
Contracts (Rights of Third Parties) Xxx 0000 which is enforceable by
any person who is not a party to the Intercompany Loan Agreement.
18
19. REDENOMINATION
Each obligation under the Intercompany Loan Agreement which has been
denominated in sterling shall be redenominated in Euro in accordance
with applicable European legislation upon such redenomination of the
Notes.
20. GOVERNING LAW
The Intercompany Loan Agreement is governed by and shall be construed
in accordance with English law.
19
SCHEDULE 1
NOTICE OF DRAWDOWN OF A TERM ADVANCE
From: Xxxxxx Funding Limited (FUNDING)
To: [ ] (the ISSUER)
Copy: JPMorgan Chase Bank, N.A., London Branch (the SECURITY TRUSTEE)
Dear Sirs,
1. We refer to the agreement between, inter alios, ourselves, the Issuer
and the Security Trustee (as from time to time amended, varied, novated
or supplemented (the INTERCOMPANY LOAN AGREEMENT)) dated [ ] whereby an
intercompany loan facility was made available to us. Terms defined in
the Intercompany Loan Agreement shall have the same meaning in this
notice.
2. We hereby give you notice that, pursuant to the Intercompany Loan
Agreement and upon the terms and subject to the conditions contained
therein, we wish a [describe Term Advance] to be made to us as follows:
(a) Amount: (pound)[ ] of which (pound)[ ] is to be retained by you by way
of set off against our obligation to reimburse such amount to you on
the Closing Date under Clause [ ] (Fee for provision of Term Advance)
of the Intercompany Loan Confirmation.
(b) Drawdown Date: [ ]
3. We confirm that no Intercompany Loan Event of Default has occurred and
is continuing which has not been waived, or would result from the
making of such Term Advance.
4. We confirm that the principal amount of the Term Advance requested does
not exceed amount available under the Intercompany Loan Agreement as at
[relevant Drawdown Date].
5. The net proceeds of this drawdown should be credited to our account
numbered [ ] with [ ].
Yours faithfully,
For and on behalf of
Xxxxxx Funding Limited
20
SCHEDULE 2
SOLVENCY CERTIFICATE
XXXXXX FUNDING LIMITED (the COMPANY)
To: [o]
(the ISSUER)
JPMorgan Chase Bank, N.A., London Branch (the SECURITY TRUSTEE)
We the undersigned HEREBY CERTIFY, that (i) having made all appropriate searches
and investigations of the Company's books and records and the Company's accounts
(both management and those required by law); and (ii) the officers of the
Company having duly considered the provisions of the insolvency laws of the
United Kingdom (including, without limitation, the provisions of sections 123
and 238 to 243 and 423 of the Insolvency Xxx 0000 (the ACT)):
(a) the Company is not unable to pay its debts within the meaning of
section 123 of the Act and would not become unable to do so in
consequence of entering into the Transaction Documents to which it is a
party or making any drawing or granting any security under the
Transaction Documents to which it is a party, and the Company's assets
currently exceed its liabilities (taking into account its actual,
contingent and prospective liabilities) and will continue to do so
notwithstanding the entry into by it of the Transaction Documents and
the making of any drawing or the granting of any security under the
Transaction Documents to which it is a party;
(b) no execution or other process issued on a judgment, decree or order of
any court in favour of a creditor of the Company remains unsatisfied in
whole or in part;
(c) to the best of our knowledge and belief no corporate action has been
taken or is pending, no other steps have been taken and no legal
proceedings have been commenced or are threatened or are pending for
(i) the winding-up, liquidation, dissolution, administration or
reorganisation of the Company; or (ii) the Company to enter into any
composition or arrangement with its creditors generally; or (iii) the
appointment of a receiver, administrative receiver, trustee or similar
officer in respect of the Company or any of its property, undertaking
or assets. No event equivalent to any of the foregoing has occurred in
or under the laws of any relevant jurisdiction;
(d) neither the entry into of the Transaction Documents to which it is a
party nor the making of any drawing nor granting of security under the
Transaction Documents to which it is a party would be a transaction at
an undervalue within the meaning of section 238 of the Act, since the
value of any consideration received by the Company as a result of such
drawing and/or grant of security would not be significantly less than
the value of any consideration provided by the Company under the
Transaction Documents to which it is a party;
(e) the entry into of the Transaction Documents to which it is a party, any
drawing made by the Company under or pursuant to the Transaction
Documents to which it is a party, and any security granted by the
Company under or pursuant to the Transaction Documents to which it is a
party will be entered into or made, as the case may be, by the Company,
in good faith and for the purpose of carrying on its business, and
there are reasonable grounds for believing that such entry into of such
Transaction Documents, such drawings and grants of security would
benefit the Company;
21
(f) in entering into the Transaction Documents to which it is a party,
making a drawing under or pursuant to the Transaction Documents to
which it is a party and/or granting security under or pursuant to the
Transaction Documents to which it is a party the Company has no desire
to give a preference to any person as contemplated by section 239 of
the Act nor is it the purpose of the Company to put assets beyond the
reach of a person who is making, or may at some time make, a claim
against the Company or of otherwise prejudicing the interests of such a
person in relation to the claim which he is making or may make; and
(g) in so far as the transactions contemplated by the Transaction Documents
to which it is a party relate to assets located in Scotland or
otherwise subject to Scots law, then in addition to the foregoing:
(i) the assets of the Company are as at the date of this
Certificate greater than its liabilities for the purposes of
section 123 and 242 of the Act, and in our opinion there is no
reason to believe that such state of affairs will not continue
after completion of the said transactions; and
(ii) the said transactions under and related to the Transaction
Documents constitute reciprocal obligations of the Company
with the other parties thereto for the purposes of section 243
of the act and are not collusive with the purpose of
prejudicing the general body of creditors of the Company;
Terms defined in the Master Definitions Schedule signed for the purposes of
identification by Xxxxx & Xxxxx LLP and Xxxxxxxxx and May on 8 December, 2005
shall have the same respective meanings when used in this Certificate.
DATED *
Signed for and on behalf of Xxxxxx Funding Limited
......................................................
Director
......................................................
Director/Secretary
22
SCHEDULE 3
FORM OF RELEVANT INTERCOMPANY LOAN CONFIRMATION
LOAN CONFIRMATION
INTERCOMPANY LOAN AGREEMENT
DATED *
XXXXXX FUNDING LIMITED
(Funding)
(the [Issuer])
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
(the Security Trustee)
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
(the Agent Bank)
XXXXX & XXXXX
XXXXX & XXXXX LLP
London
23
THIS AGREEMENT is dated * between:
(1) XXXXXX FUNDING LIMITED (registered in England and Wales No. 3982428)
whose registered office is at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (FUNDING);
(2) [Relevant Issuer] (registered in England and Wales No. *) whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX (the [RELEVANT ISSUER]);
(3) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch), whose offices are at Xxxxxxx Xxxxx, 0
Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the SECURITY TRUSTEE which
expression shall include such person and all other persons for the time
being acting as the security trustee or trustees pursuant to the
Funding Deed of Charge); and
(4) JPMORGAN CHASE BANK, N.A., LONDON BRANCH (formerly known as The Chase
Manhattan Bank, London Branch), whose offices are at Xxxxxxx Xxxxx, 0
Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the AGENT BANK which expression
shall include such person for the time being acting as the agent bank
pursuant to the Paying Agent and Agent Bank Agreement).
IT IS AGREED as follows:
1. INTERPRETATION
1.1 The Master Definitions Schedule signed for the purposes of
identification by Xxxxx & Overy LLP and Xxxxxxxxx and May on [*](as the
same may be amended, varied or supplemented from time to time with the
consent of the parties hereto) and the [Relevant Issuer] Master
Definitions Schedule signed for the purposes of identification by Xxxxx
& Overy LLP and Xxxxxxxxx and May on * (as the same may be amended,
varied or supplemented from time to time with the consent of the
parties hereto) are expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in the Master
Definitions Schedule and/or the [Relevant Issuer] Master Definitions
Schedule (as so amended, varied or supplemented) shall, except where
the context otherwise requires and save where otherwise defined herein,
have the same meanings in this Agreement, including the Recitals hereto
and this Agreement shall be construed in accordance with the
interpretation provisions set out in Clause 2 of the Master Definitions
Schedule and the [Relevant Issuer] Master Definitions Schedule. In the
event of a conflict between the Master Definitions Schedule and the
[Relevant Issuer] Master Definitions Schedule, the [Relevant Issuer]
Master Definitions Schedule shall prevail.
1.2 Unless the context otherwise requires, references in the Intercompany
Loan Term and Conditions to:
[complete as appropriate]
2. INTERCOMPANY LOAN TERMS AND CONDITIONS
Each of the parties to this Agreement agree that the Intercompany Loan
Terms and Conditions signed by Funding, the Agent Bank and the Security
Trustee for the purposes of identification on [*] and the provisions
set out therein shall form part of this Agreement and
24
shall be binding on the parties to this Agreement as if they had
expressly been set out herein. References in this Agreement to "THIS
AGREEMENT" shall be construed accordingly.
3. THE TERM ADVANCES
[describe the term advances]
3.1 TERM ADVANCE RATING
The Term Advance Rating in respect of the * Advances shall be *, and in
respect of the * Advances shall be oand in respect of the * Advances
shall be *.
3.2 CONDITIONS PRECEDENT
Save as the [Relevant Issuer] and the Security Trustee may otherwise
agree, the Term Advances will not be available for utilisation unless
the Security Trustee has confirmed to Funding that it or its advisers
have received all the information and documents listed in Schedule 1 in
form and substance satisfactory to the Security Trustee.
4. INTEREST
[Set out interest rate, interest periods and payment dates]
5. REPAYMENT
[Describe:
Repayment subject to terms of the Funding Deed of Charge;
Repayment of Term Advances prior to a Trigger Event, enforcement of the
Funding Security or enforcement of the [Relevant Issuer] security;
Repayment after the occurrence of a Non-Asset Trigger Event but prior
to enforcement of the Funding Security or the [Relevant Issuer]
security;
Repayment after the occurrence of an Asset Trigger Event but prior to
enforcement of the Funding Security or the [Relevant Issuer] security;
Repayment following enforcement of the [Relevant Issuer] security;
Repayment following enforcement of the Funding Security;
Bullet Term Advances deemed to be Pass Through Term Advances].
5.1 ACKNOWLEDGEMENT OF NEW INTERCOMPANY LOANS
The [Relevant] Issuer hereby acknowledges and agrees that from time to
time Funding may enter into New Intercompany Loans with New Issuers and
that the obligation of Funding to repay this Intercompany Loan and any
New Intercompany Loan will depend on the Term Advance Rating of the
individual Term Advances made to Funding under the respective
Intercompany Loans. The [Relevant Issuer] further acknowledges and
agrees that Parts I, II and III of Schedule 3 to the Funding Deed of
Charge will be amended to reflect the entry by Funding into New
Intercompany Loans and related agreements from time to time and agrees
to execute such documents as are necessary or required by the Rating
Agencies for the purpose of including the New Issuer, any New Funding
Swap Provider, any New Start-up
25
Loan Provider or any other person who has executed an Accession
Undertaking in the Transaction Documents.
6. CERTAIN FEES, ETC.
[Describe payment and provision, including set-off, for fees and
indemnities]
7. APPLICATION OF CERTAIN PROVISIONS
8. DECLARATION OF TRUST
The [Relevant Issuer] declares the Security Trustee, and the Security
Trustee hereby declares itself, trustee of all the covenants,
undertakings, rights, powers, authorities and discretions in, under or
in connection with this Agreement for the [Relevant Issuer] Secured
Creditors in respect of the [Relevant Issuer] Secured Obligations owed
to each of them respectively upon and subject to the terms and
conditions of the [Relevant Issuer] Deed of Charge.
9. ADDRESSES
The addresses referred to in Clause 15.4 of the Intercompany Loan Terms
and Conditions are as follows:
THE SECURITY TRUSTEE:
For the attention of: Manager, Trust Administration
Address: Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx,
Xxxxxx X0X 0XX
Telephone: *
Facsimile: 020 7777 5410
THE [RELEVANT ISSUER]:
For the attention of: *
Address: *
Telephone: *
Facsimile: *
FUNDING:
For the attention of: Securitisation Team, Retail Credit Risk
Address: Xxxxxx Funding Limited c/o Abbey House
(AAM 126), 000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx, XX0 0XX
Telephone: 01908 343 232/01908 344602/01908 343836
Facsimile: 01908 343 019
26
RATING AGENCIES:
MOODY'S: 0 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
For the attention of: Xxxx Xxxxxxxxx
Telephone: [000 0000 0000]
Fax: [020 7772 5400]
S&P: 00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
For the attention of: Structured Finance Surveillance Group
Telephone: 000 0000 0000
Fax: 020 7176 3598
FITCH: Xxxxx Xxxxx
0 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
For the attention of: *
Telephone: 000 0000 0000
Fax: 020 7417 4242
27
SCHEDULE 1
CONDITIONS PRECEDENT IN RESPECT OF DRAWDOWN
1. AUTHORISATIONS
(a) A copy of the memorandum and articles of association, certificate of
incorporation and certificate of incorporation on change of name of
Funding.
(b) A copy of a resolution of the board of directors of Funding authorising
the entry into, execution and performance of each of the Transaction
Documents to which Funding is a party and authorising specified persons
to execute those on its behalf.
(c) A certificate of a director of Funding certifying:
(i) that each document delivered under this paragraph 1 of
Schedule 1 is correct, complete and in full force and effect
as at a date no later than the date of the Intercompany Loan
Agreement and undertaking to notify the Security Trustee if
that position should change prior to the first Drawdown Date;
and
(ii) as to the identity and specimen signatures of the directors
and signatories of Funding.
2. SECURITY
(a) The Funding Deed of Charge duly executed by the parties thereto.
(b) Duly completed bank account mandates in respect of the Funding GIC
Account and the Funding Transaction Account.
(c) Security Power of Attorney for Funding.
3. LEGAL OPINION
Legal opinions of:
(a) *, English legal advisers, addressed to the Security Trustee; and
(b) *, English legal advisers to the Seller, the [Relevant Issuer] and
Funding, addressed to the Security Trustee.
(c) [*, U.S. legal advisers to the Seller, the [Relevant Issuer] and
Funding addressed to the Security Trustee].
4. TAX
Evidence of a group income election made under section 247 of the
Income and Corporation Taxes Act 1988 in relation to Funding and the
[Relevant Issuer].
5. TRANSACTION DOCUMENTS
DULY EXECUTED COPIES OF:
[list the transaction documents]
28
6. BOND DOCUMENTATION
(a) Confirmation that the [Relevant Issuer] Notes have been
issued and the subscription proceeds received by the
[Relevant Issuer]; and
(b) Copy of the Prospectus and the Offering Circular.
7. MISCELLANEOUS
Solvency certificates from Funding signed by two directors of Funding
in or substantially in the form set out in Schedule 2 to the
Intercompany Loan Terms and Conditions.
29
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed on
the day and year appearing on page 1.
FUNDING
SIGNED by )
for and on behalf of )
XXXXXX FUNDING LIMITED )
[RELEVANT ISSUER]
SIGNED by )
for and on behalf of )
* )
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
JPMORGAN CHASE BANK, )
N.A., LONDON BRANCH )
AGENT BANK
SIGNED by )
for and on behalf of )
JPMORGAN CHASE BANK, )
N.A., LONDON BRANCH )
30
EXECUTION COPY
LOAN CONFIRMATION NINTH ISSUER INTERCOMPANY
LOAN AGREEMENT
DATED 8 DECEMBER 2005
XXXXXX FUNDING LIMITED
(FUNDING)
XXXXXX FINANCING (NO. 9) PLC
(THE NINTH ISSUER)
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
(THE SECURITY TRUSTEE)
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
(THE AGENT BANK)
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Interpretation........................................................1
2. Intercompany Loan Terms and Conditions................................2
3. The Ninth Issuer Term Advances........................................2
4. Interest..............................................................3
5. Repayment.............................................................4
6. Certain Fees, etc.....................................................7
7. Declaration of Trust..................................................9
8. Addresses.............................................................9
9. Counterparts.........................................................10
10. Third Party Rights...................................................10
11. Governing Law........................................................11
SCHEDULE
1. Conditions Precedent in respect of Drawdown..........................12
THIS AGREEMENT is dated 8 December, 2005 BETWEEN:
(1) XXXXXX FUNDING LIMITED (registered in England and Wales No. 3982428)
whose registered office is at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (FUNDING);
(2) XXXXXX FINANCING (NO. 9) PLC (registered in England and Wales No.
5115696) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (the NINTH ISSUER);
(3) JPMORGAN CHASE BANK, N.A., LONDON BRANCH, (formerly known as The Chase
Manhattan Bank, London Branch) whose offices are at Xxxxxxx Xxxxx, 0
Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the SECURITY Trustee which
expression shall include such person and all other persons for the time
being acting as the security trustee or trustees pursuant to the
Funding Deed of Charge); and
(4) JPMORGAN CHASE BANK, N.A., LONDON BRANCH, (formerly known as The Chase
Manhattan Bank, London Branch) whose offices are at Xxxxxxx Xxxxx, 0
Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the AGENT BANK which expression
shall include such person and all other persons for the time being
acting as the agent bank pursuant to the Ninth Issuer Paying Agent and
Agent Bank Agreement).
IT IS AGREED as follows:
1. INTERPRETATION
1.1 The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Overy LLP and
Xxxxxxxxx and May on 8 December 2005 (and as the same may be further
amended, varied or supplemented from time to time with the consent of
the parties hereto) and the Ninth Issuer Master Definitions and
Construction Schedule signed for the purposes of identification by
Xxxxx & Overy LLP and Xxxxxxxxx and May on 8 December, 2005 are
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule and/or the Ninth Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented from time to time) shall, except where the context
otherwise requires and save where otherwise defined herein, have the
same meanings in this Agreement, including the Recitals hereto and this
Agreement shall be construed in accordance with the interpretation
provisions set out in Clause 2 of the Amended and Restated Master
Definitions and Construction Schedule and Clause 2 of the Ninth Issuer
Master Definitions and Construction Schedule. In the event of a
conflict between the Amended and Restated Master Definitions and
Construction Schedule and the Ninth Issuer Master Definitions and
Construction Schedule, the Ninth Issuer Master Definitions and
Construction Schedule shall prevail.
1.2 Unless the context otherwise requires, references in the Intercompany
Loan Terms and Conditions to:
CLOSING DATE means on or about 8 December, 2005;
INTERCOMPANY LOAN means the Ninth Issuer Intercompany Loan;
INTERCOMPANY LOAN AGREEMENT means the Ninth Issuer Intercompany Loan
Agreement;
1
INTERCOMPANY LOAN CONFIRMATION means the Ninth Issuer Intercompany Loan
Confirmation;
INTEREST PAYMENT DATE has the meaning given to it in the Amended and
Restated Master Definitions and Construction Schedule;
ISSUER means the Ninth Issuer;
ISSUER TRANSACTION ACCOUNT means the Ninth Issuer Sterling Account;
NOTES means the Ninth Issuer Notes; and
TERM ADVANCES means the Ninth Issuer Term Advances.
2. INTERCOMPANY LOAN TERMS AND CONDITIONS
2.1 Each of the parties to this Agreement agrees that the Intercompany Loan
Terms and Conditions signed by Funding, the Agent Bank and the Security
Trustee for the purposes of identification on 26th July, 2000, as
amended by the Amendment Agreement to the Intercompany Loan Terms and
Conditions made between Funding, Xxxxxx Financing (No. 1) PLC, the
Security Trustee and the Agent Bank on 29th November, 2000, the Second
Amendment Agreement to the Intercompany Loan Terms and Conditions made
between Funding, Xxxxxx Financing (No.1) PLC, Xxxxxx Financing (No. 2)
PLC, Xxxxxx Financing (No. 3) PLC, the Security Trustee and the Agent
Bank on 5th July, 2001, and as amended and restated by the Amended and
Restated Intercompany Loan Terms and Conditions signed by Funding and
the Security Trustee on 8 December, 2005 and the provisions set out
therein shall form part of this Agreement and shall be binding on the
parties to this Agreement as if they had expressly been set out herein.
References in this Agreement to "this Agreement" shall be construed
accordingly.
3. THE NINTH ISSUER TERM ADVANCES
3.1 NINTH ISSUER TERM AAA ADVANCES
On and subject to the terms of this Agreement, the Ninth Issuer grants
to Funding a term loan which consists of the following sub loans:
(a) the series 1 term AAA advance in the maximum aggregate
principal amount of (pound)1,017,901,000 (the NINTH ISSUER
SERIES 1 TERM AAA ADVANCE) and which corresponds to the
principal amount upon issue of the Series 1 Class A Ninth
Issuer Notes;
(b) the series 2 term AAA advance in the maximum aggregate
principal amount of (pound)1,272,376,000 (the NINTH ISSUER
SERIES 2 TERM AAA ADVANCE) and which corresponds to the
principal amount upon issue of the Series 2 Class A Ninth
Issuer Notes;
(c) the series 3A1 term AAA advance in the maximum aggregate
principal amount of (pound)506,530,000 (the NINTH ISSUER
SERIES 3A1 TERM AAA ADVANCE) and which corresponds to the
principal amount upon issue of the Series 3 Class A1 Ninth
Issuer Notes;
(d) the series 3A2 term AAA advance in the maximum aggregate
principal amount of (pound)400,000,000 (the NINTH ISSUER
SERIES 3A2 TERM AAA ADVANCE) and which corresponds to the
principal amount upon issue of the Series 3 Class A2 Ninth
Issuer Notes; and
2
(e) the series 4 term AAA advance in the maximum aggregate
principal amount of (pound)600,000,000 (the NINTH ISSUER
SERIES 4 TERM AAA ADVANCE) and which corresponds to the
principal amount upon issue of the Series 4 Class A Ninth
Issuer Notes,
and together the Ninth Issuer Series 1 Term AAA Advance, the Ninth
Issuer Series 2 Term AAA Advance, the Ninth Issuer Series 3A1 Term AAA
Advance, the Ninth Issuer Series 3A2 Term AAA Advance and the Ninth
Issuer Series 4 Term AAA Advance, are referred to herein as the NINTH
ISSUER TERM AAA ADVANCES.
3.2 TERM ADVANCE RATING
The Term Advance Rating in respect of the Ninth Issuer Term AAA
Advances shall be AAA/AAA/Aaa.
3.3 CONDITIONS PRECEDENT
Save as the Ninth Issuer and the Security Trustee may otherwise agree,
the Ninth Issuer Term Advances will not be available for utilisation
unless the Security Trustee has confirmed to Funding that it or its
advisers have received all the information and documents listed in
Schedule 1 in form and substance satisfactory to the Security Trustee
and the Ninth Issuer has entered into the Funding Deed of Charge.
4. INTEREST
4.1 RATE OF INTEREST TO FIRST INTEREST PAYMENT DATE
On the Closing Date, the Agent Bank will determine the INITIAL RELEVANT
SCREEN RATE (as defined below) in respect of each Ninth Issuer Term
Advance at or about 11.00 a.m. (London time) on that date. If the
Initial Relevant Screen Rate is unavailable, the Agent Bank will
request the principal London office of each of the Reference Banks (as
defined in the Amended and Restated Master Definitions and Construction
Schedule) to provide the Agent Bank with its offered quotations to
leading banks for four-month and five-month sterling deposits of
(pound)10,000,000, in the London inter-bank market as at or about 11.00
a.m. (London time) on such Closing Date. The Term Advance Rate of
Interest for the First Interest Period (as defined below) shall be the
aggregate of (1) the Relevant Margin (as defined below) and (2) the
Initial Relevant Screen Rate or, if the Initial Relevant Screen Rate is
unavailable, the linear interpolation of the arithmetic mean of such
offered quotations for four-month sterling deposits and the arithmetic
mean of such offered quotations for five-month sterling deposits
(rounded upwards, if necessary, to five decimal places).
INITIAL RELEVANT SCREEN RATE means the linear interpolation of the
arithmetic mean of the offered quotations to leading banks for
four-month sterling deposits and the arithmetic mean of the offered
quotations to leading banks for five-month sterling deposits (rounded
upwards if necessary to five decimal places) displayed on the
Xxx-Xxxxx/Telerate monitor at Telerate page number 3750.
4.2 TERM ADVANCE RATES OF INTEREST
The Term Advance Rate of Interest payable on each Term Advance (other
than in respect of the First Interest Period (as defined below)) shall
be LIBOR for three-month sterling deposits as determined in accordance
with Clause 6 of the Intercompany Loan Terms and Conditions plus a
RELEVANT MARGIN which shall be:
3
(a) in respect of the Ninth Issuer Series 1 Term AAA Advance, a
margin of minus 0.0313 per cent. per annum;
(b) in respect of the Ninth Issuer Series 2 Term AAA Advance, a
margin of 0.0746 per cent. per annum up to (and including) the
Interest Period ending October 2010 and thereafter 0.3492 per
cent. per annum;
(c) in respect of the Ninth Issuer Series 3A1 Term AAA Advance, a
margin of 0.107 per cent. per annum up to (and including) the
Interest Period ending October 2010 and thereafter 0.414 per
cent. per annum;
(d) in respect of the Ninth Issuer Series 3A2 Term AAA Advance, a
margin of 0.09 per cent. per annum up to (and including) the
Interest Period ending October 2010 and thereafter 0.18 per
cent. per annum; and
(e) in respect of the Ninth Issuer Series 4 Term AAA Advance, a
margin of 0.09 per cent. per annum up to (and including) the
Interest Period ending October 2010 and thereafter 0.18 per
cent. per annum.
4.3 INTEREST PERIODS
The first Interest Period shall commence on (and include) the Closing
Date and end on (but exclude) the Interest Payment Date (as defined in
the Amended and Restated Master Definitions and Construction Schedule)
falling in April 2006 (the FIRST INTEREST PERIOD). Each subsequent
Interest Period shall commence on (and include) an Interest Payment
Date and end on (but exclude) the following applicable Interest Payment
Date.
5. REPAYMENT
5.1 REPAYMENT SUBJECT TO TERMS OF THE FUNDING DEED OF CHARGE
The terms and provisions of this Clause 5 are to be read subject to the
provisions of Part II of Schedule 3 to the Funding Deed of Charge and
as the same may be further amended or varied from time to time in
accordance with the terms of the Funding Deed of Charge.
5.2 REPAYMENT OF NINTH ISSUER TERM AAA ADVANCES PRIOR TO A TRIGGER EVENT,
ENFORCEMENT OF THE FUNDING SECURITY OR ENFORCEMENT OF THE NINTH ISSUER
SECURITY
Prior to the occurrence of a Trigger Event, enforcement of the Funding
Security or enforcement of the Ninth Issuer Security, Funding shall
repay to the Ninth Issuer:
(a) the Ninth Issuer Series 1 Term AAA Advance on the Ninth
Issuer Series 1 Term AAA Advance Maturity Date;
(b) the Ninth Issuer Series 2 Term AAA Advance on the Interest
Payment Date falling in October 2008 but if there are
insufficient funds available to repay the Ninth Issuer Series
2 Term AAA Advance on such Interest Payment Date, then the
shortfall shall be repaid on each subsequent Interest Payment
Date from Funding Available Principal Receipts until the
Ninth Issuer Series 2 Term AAA Advance is fully repaid;
(c) the Ninth Issuer Series 3A1 Term AAA Advance on the Interest
Payment Dates falling in January 2010 and April 2010 but if
there are insufficient funds available to repay the Ninth
Issuer Series 3A1 Term AAA Advance on such Interest Payment
Dates, then the shortfall
4
will be repaid on each subsequent Interest Payment Date from
Funding Available Principal Receipts until the Ninth Issuer
Series 3A1 Term AAA Advance is fully repaid;
(d) the Ninth Issuer Series 3A2 Term AAA Advance on the Interest
Payment Dates falling in January 2010 and April 2010 but if
there are insufficient funds available to repay the Ninth
Issuer Series 3A2 Term AAA Advance on such Interest Payment
Dates, then the shortfall will be repaid on each subsequent
Interest Payment Date from Funding Available Principal
Receipts until the Ninth Issuer Series 3A2 Term AAA Advance
is fully repaid;
(e) the Ninth Issuer Series 4 Term AAA Advance on the Interest
Payment Date falling in July 2010 but if there are
insufficient funds available to repay the Ninth Issuer Series
4 Term AAA Advance on such Interest Payment Date, then the
shortfall will be repaid on each subsequent Interest Payment
Date from Funding Available Principal Receipts until the
Ninth Issuer Series 4 Term AAA Advance is fully repaid.
5.3 REPAYMENT OF NINTH ISSUER TERM ADVANCES AFTER THE OCCURRENCE OF A
NON-ASSET TRIGGER EVENT BUT PRIOR TO ENFORCEMENT OF THE FUNDING
SECURITY OR THE NINTH ISSUER SECURITY
On and from the Interest Payment Date following the occurrence of a
Non-Asset Trigger Event but prior to enforcement of the Funding
Security or enforcement of the Ninth Issuer Security, Funding shall
repay the Ninth Issuer Term Advances on each Interest Payment Date from
Funding Available Principal Receipts in the manner set out in Part II
of Schedule 3 to the Funding Deed of Charge.
5.4 REPAYMENT OF NINTH ISSUER TERM ADVANCES AFTER THE OCCURRENCE OF AN
ASSET TRIGGER EVENT BUT PRIOR TO ENFORCEMENT OF THE FUNDING SECURITY OR
ENFORCEMENT OF THE NINTH ISSUER SECURITY
Following the occurrence of an Asset Trigger Event but prior to
enforcement of the Funding Security or enforcement of the Ninth Issuer
Security, Funding shall repay the Ninth Issuer Term Advances on each
Interest Payment Date from Funding Available Principal Receipts in the
manner set out in Part II of Schedule 3 to the Funding Deed of Charge.
5.5 REPAYMENT OF NINTH ISSUER TERM ADVANCES FOLLOWING ENFORCEMENT OF THE
NINTH ISSUER SECURITY BUT PRIOR TO ENFORCEMENT OF THE FUNDING SECURITY
Following the enforcement of the Ninth Issuer Security pursuant to the
terms of the Ninth Issuer Deed of Charge but prior to enforcement of
the Funding Security, Funding shall apply Funding Available Principal
Receipts on each Interest Payment Date pro rata and pari passu
according to the respective amounts outstanding thereof, the Ninth
Issuer Series 1 Term AAA Advance, the Ninth Issuer Series 2 Term AAA
Advance, the Ninth Issuer Series 3 Term AAA Advances and the Ninth
Issuer Series 4 Term AAA Advance until all such Ninth Issuer Term AAA
Advances are fully repaid, provided that, on the Ninth Issuer Series 1
Term AAA Advance Maturity Date, no repayments will be made of any term
advance other than the Series 1 Term AAA Advance.
5.6 REPAYMENT FOLLOWING ENFORCEMENT OF THE FUNDING SECURITY
Following the enforcement of the Funding Security pursuant to the terms
of the Funding Deed of Charge, the Ninth Issuer Intercompany Loan shall
be repaid in the manner described in Part III of Schedule 3 to the
Funding Deed of Charge.
5
5.7 BULLET TERM ADVANCE AND SCHEDULED AMORTISATION TERM ADVANCES DEEMED TO
BE PASS THROUGH TERM ADVANCES
(a) Subject to the terms of Parts II and III of Schedule 3 to the
Funding Deed of Charge, if a Trigger Event occurs, the Ninth
Issuer Security is enforced or the Funding Security is
enforced, then monies (if any) accumulating for the Ninth
Issuer Series 1 Term AAA Advance, the Ninth Issuer Series 2
Term AAA Advance, the Ninth Issuer Series 3 Term AAA Advances
or the Ninth Issuer Series 4 Term AAA Advance will be
available, on and from the date of the relevant occurrence,
for application in accordance with Clauses 5.3, 5.4, 5.5 or
5.6 hereof (as applicable) (and for the avoidance of doubt,
will not be available solely for repayment of the Ninth
Issuer Series 1 Term AAA Advance and/or the Ninth Issuer
Series 2 Term AAA Advance and/or the Ninth Issuer Series 3
Term AAA Advances and/or the Ninth Issuer Series 4 Term AAA
Advance, as applicable, subject to the terms of Parts II and
III of Schedule 3 to the Funding Deed of Charge).
(b) Subject to the terms of Parts II and III of Schedule 3 to the
Funding Deed of Charge, if a Trigger Event occurs, the
Funding Security is enforced or the Ninth Issuer Security is
enforced, then (i) the Scheduled Repayment Dates of the Ninth
Issuer Series 1 Term AAA Advance, the Ninth Issuer Series 2
Term AAA Advance, the Ninth Issuer Series 3 Term AAA Advances
and the Ninth Issuer Series 4 Term AAA Advance, will cease to
apply and (ii) the Ninth Issuer Series 1 Term AAA Advance,
the Ninth Issuer Series 2 Term AAA Advance, the Ninth Issuer
Series 3 Term AAA Advances and the Ninth Issuer Series 4 Term
AAA Advance shall be deemed to be Payable Pass Through Term
Advances.
5.8 ACKNOWLEDGEMENT OF FIRST ISSUER INTERCOMPANY LOAN, SECOND ISSUER
INTERCOMPANY LOAN, THIRD ISSUER INTERCOMPANY LOAN, FOURTH INTERCOMPANY
LOAN, FIFTH ISSUER INTERCOMPANY LOAN, SIXTH ISSUER INTERCOMPANY LOAN,
SEVENTH ISSUER INTERCOMPANY LOAN AND EIGHTH ISSUER INTERCOMPANY LOAN
The Ninth Issuer hereby acknowledges and agrees that Funding has
entered into an intercompany loan agreement with Xxxxxx Financing (No.
1) PLC (the FIRST ISSUER) dated 26th July, 2000 (the FIRST ISSUER
INTERCOMPANY LOAN AGREEMENT), an intercompany loan agreement with
Xxxxxx Financing (No. 2) PLC (the SECOND ISSUER) dated 29th November,
2000 (the SECOND ISSUER INTERCOMPANY LOAN AGREEMENT), an intercompany
loan agreement with Xxxxxx Financing (No. 3) PLC (the THIRD ISSUER)
dated 23rd May, 2001 (the THIRD ISSUER INTERCOMPANY LOAN AGREEMENT), an
intercompany loan agreement with Xxxxxx Financing (No.4) PLC (the
FOURTH ISSUER) dated 5th July, 2001 (the FOURTH ISSUER INTERCOMPANY
LOAN AGREEMENT), an intercompany loan agreement with Xxxxxx Financing
(No.5) PLC (the FIFTH ISSUER) dated 8th November, 2001 (the FIFTH
ISSUER INTERCOMPANY LOAN AGREEMENT), an intercompany loan agreement
with Xxxxxx Financing (No. 6) PLC (the SIXTH ISSUER) dated 7th
November, 2002 (the SIXTH ISSUER INTERCOMPANY LOAN AGREEMENT), an
intercompany loan agreement with Xxxxxx Financing (No. 7) PLC (the
SEVENTH ISSUER) dated 26th March, 2003 (the SEVENTH ISSUER INTERCOMPANY
LOAN AGREEMENT) and an intercompany loan agreement with Xxxxxx
Financing (No.8) PLC (the EIGHTH ISSUER) dated 1st April, 2004 (the
EIGHTH ISSUER INTERCOMPANY LOAN AGREEMENT) and accordingly, the
obligation of Funding to repay this Ninth Issuer Intercompany Loan, the
First Issuer Intercompany Loan, the Second Issuer Intercompany Loan,
the Third Issuer Intercompany Loan, the Fourth Issuer Intercompany
Loan, the Fifth Issuer Intercompany Loan, the Sixth Issuer Intercompany
Loan, the Seventh Issuer Intercompany Loan and the Eighth Issuer
Intercompany Loan will depend on the Term Advance Ratings of the
various Term Advances made to Funding under this Ninth Issuer
Intercompany Loan Agreement, the First Issuer Intercompany Loan
Agreement, the Second Issuer Intercompany Loan Agreement, the Third
Issuer Intercompany Loan Agreement, the Fourth Issuer Intercompany Loan
Agreement, the Fifth Issuer Intercompany Loan Agreement, the Sixth
Issuer Intercompany Loan Agreement, the Seventh Issuer Intercompany
6
Loan Agreement and the Eighth Issuer Intercompany Loan Agreement and
the provisions of Schedule 3 to the Funding Deed of Charge.
5.9 ACKNOWLEDGEMENT OF NEW INTERCOMPANY LOANS
The Ninth Issuer hereby acknowledges and agrees that from time to time
Funding may enter into New Intercompany Loans with New Issuers and that
the obligation of Funding to repay this Ninth Issuer Intercompany Loan,
the First Issuer Intercompany Loan, the Second Issuer Intercompany
Loan, the Third Issuer Intercompany Loan, the Fourth Issuer
Intercompany Loan, the Fifth Issuer Intercompany Loan, the Sixth Issuer
Intercompany Loan, the Seventh Issuer Intercompany Loan, the Eighth
Issuer Intercompany Loan and any New Intercompany Loan will depend on
the Term Advance Rating of the individual Term Advances made to Funding
under any of this Ninth Issuer Intercompany Loan, the First Issuer
Intercompany Loan, the Second Issuer Intercompany Loan, the Third
Issuer Intercompany Loan, the Fourth Issuer Intercompany Loan, the
Fifth Issuer Intercompany Loan, the Sixth Issuer Intercompany Loan, the
Seventh Issuer Intercompany Loan, the Eighth Issuer Intercompany Loan
and any New Intercompany Loan and the provisions of Schedule 3 to the
Funding Deed of Charge. The Ninth Issuer further acknowledges and
agrees that Parts I, II and III of Schedule 3 to the Funding Deed of
Charge will be amended to reflect the entry by Funding into New
Intercompany Loans and related agreements from time to time and agrees
to execute such documents as are necessary or required by the Rating
Agencies or otherwise for the purpose of including the New Issuer, any
New Funding Swap Provider, any New Start-up Loan Provider or any other
person who has executed an Accession Undertaking in the Transaction
Documents.
6. CERTAIN FEES, ETC.
6.1 FEE FOR PROVISION OF NINTH ISSUER TERM ADVANCES
Funding shall (except in the case of payments due under paragraphs (c),
(e), (f) and (k) below, which shall be paid when due) on each Interest
Payment Date, which in respect of paragraphs (j) and (l) shall not
include the Interest Payment Date falling in December 2006, pay to the
Ninth Issuer for same day value to the Ninth Issuer Sterling Account a
fee for the provision of the Ninth Issuer Term Advances. Such fee shall
be an amount or amounts in the aggregate equal to the following:
(a) the fees, costs, charges, liabilities and expenses and any
other amounts due and payable to the Ninth Issuer Security
Trustee pursuant to the Ninth Issuer Deed of Charge together
with interest thereon as provided therein;
(b) the fees, costs, charges, liabilities and expenses and any
other amounts due and payable to the Note Trustee pursuant to
the Ninth Issuer Trust Deed together with interest thereon as
provided therein;
(c) the reasonable fees and expenses of any legal advisers,
accountants and auditors appointed by the Ninth Issuer and
properly incurred in their performance of their functions
under the Transaction Documents which have fallen due;
(d) the fees, costs and expenses due and payable to the Paying
Agents, the Registrar, the Transfer Agent and the Agent Bank
pursuant to the Ninth Issuer Paying Agent and Agent Bank
Agreement;
7
(e) any amounts due and payable by the Ninth Issuer to the HM
Revenue and Customs in respect of the Ninth Issuer's
liability to United Kingdom corporation tax (insofar as
payment is not satisfied by the surrender of group relief or
out of the profits, income or gains of the Ninth Issuer and
subject to the terms of the Ninth Issuer Deed of Charge) or
any other Taxes payable by the Ninth Issuer;
(f) the fees, costs, charges, liabilities and expenses due and
payable to the Ninth Issuer Account Banks, pursuant to the
Ninth Issuer Bank Account Agreement (if any);
(g) the fees, costs, charges, liabilities and expenses due and
payable to the Ninth Issuer Cash Manager, pursuant to the
Ninth Issuer Cash Management Agreement;
(h) any termination payment due and payable by the Ninth Issuer
to any Ninth Issuer Swap Provider, pursuant to any Ninth
Issuer Swap Agreement;
(i) the fees, costs, charges and liabilities and expenses due and
payable to the Corporate Services Provider pursuant to the
Ninth Issuer Corporate Services Agreement;
(j) an amount equal to "G" where G is calculated as follows:
G = (A- D- H) or, if such calculation is less than zero, then
G shall be zero
where, for the calculation of A, D and H for each amount paid
by Funding to the Ninth Issuer on the Ninth Issuer Term
Advances on the Interest Payment date falling in January 2007
such amount shall include the amount paid by Funding to the
Ninth Issuer on the Ninth Issuer Series 1 Term AAA Advance on
the Interest Payment Date falling in December 2006,
A = 0.01 per cent of the interest amounts paid by Funding to
the Ninth Issuer on the Ninth Issuer Term Advances on the
immediately preceding Interest Payment Date;
D = E - F
where,
E = the interest amounts (which excludes those fee amounts in
this Clause 6.1) paid by Funding to the Ninth Issuer on the
Ninth Issuer Term Advances on the immediately preceding
Interest Payment Date;
F = amounts paid by the Ninth Issuer under paragraph (d) of
the Ninth Issuer Pre-Enforcement Revenue Priority of Payments
on the immediately preceding Interest Payment Date; and
H = the cumulative aggregate of (D - A) as calculated on each
previous Interest Payment Date. If such cumulative aggregate
of (D - A) is less than zero, then H shall be zero;
(k) any other amounts due or overdue by the Ninth Issuer to third
parties including the Rating Agencies and the amounts paid by
the Ninth Issuer under the Subscription Agreements and the
Underwriting Agreement (excluding, for these purposes, the
Noteholders) other than amounts specified in paragraphs (a)
to (j) above; and
8
(l) if on any Interest Payment Date there are Ninth Issuer
Principal Receipts remaining in the Ninth Issuer Bank
Accounts, an amount equal to the difference between (i) the
interest that would be earned by the Ninth Issuer on such
Ninth Issuer Principal Receipts remaining in the Ninth Issuer
Bank Accounts during the next succeeding Interest Period and
(ii) the interest that would be payable by the Ninth Issuer
applying the weighted average rate of interest payable on the
relevant Ninth Issuer Swap Agreement due for repayment at the
end of that Interest Period to such Ninth Issuer Principal
Receipts remaining in the Ninth Issuer Bank Accounts,
together with, (i) in respect of taxable supplies made to the Ninth
Issuer, an amount in respect of any VAT or similar tax payable in
respect thereof against production of a valid VAT invoice; and (ii) in
respect of taxable supplies made to a person other than the Ninth
Issuer, any amount in respect of any Irrecoverable VAT or similar tax
payable in respect thereof (against production of a copy of the
relevant VAT invoice), and to be applied subject to and in accordance
with the provisions of the Ninth Issuer Pre-Enforcement Revenue
Priority of Payments in the Ninth Issuer Cash Management Agreement.
6.2 SET-OFF
Funding and each of the other parties to the Ninth Issuer Intercompany
Loan Agreement agree that the Ninth Issuer shall be entitled to set-off
those amounts due and payable by Funding pursuant to this Clause 6 on
the Closing Date against the amount to be advanced by the Ninth Issuer
to Funding by way of the Ninth Issuer Term Advances on the Closing
Date.
7. DECLARATION OF TRUST
The Ninth Issuer declares the Security Trustee, and the Security
Trustee hereby declares itself, trustee of all the covenants,
undertakings, rights, powers, authorities and discretions in, under or
in connection with this Agreement for the Ninth Issuer Secured
Creditors in respect of the Ninth Issuer Secured Obligations owed to
each of them respectively upon and subject to the terms and conditions
of the Ninth Issuer Deed of Charge.
8. ADDRESSES
The addresses referred to in Clause 18.4 of the Intercompany Loan Terms
and Conditions are as follows:
THE SECURITY TRUSTEE:
For the attention of: Manager, Trust Administration
Address: Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx,
Xxxxxx X0X 0XX
Facsimile: x00 000 000 0000
THE NINTH ISSUER:
For the attention of: Securitisation Team, Retail Credit Risk
Address: Xxxxxx Financing (No. 9) PLC
c/o Abbey House (AAM 126),
000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx, XX0 0XX
Facsimile: x00 0000 000 000
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FUNDING:
For the attention of: Securitisation Team, Retail Credit Risk
Address: Xxxxxx Funding Limited
c/o Abbey House (AAM 126),
000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx, XX0 0XX
Facsimile: x00 0000 000 000
RATING AGENCIES:
MOODY'S:
Address: 0 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
For the attention of: Xxxxxxxx Xxxxxxxxxxx
Facsimile: x00 000 000 0000
Email: xxxxxxx.xxxxxx@xxxxxx.xxx
S&P:
Address: 00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
For the attention of: Structured Finance Surveillance Group
Telephone: x00 000 000 0000
Facsimile: x00 000 000 0000
FITCH:
Address: Xxxxx Xxxxx
0 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
For the attention of: European Structured Finance
Telephone: x00 000 000 0000
Facsimile: x00 000 000 0000
9. COUNTERPARTS
This Agreement may be signed (manually or by facsimile) and delivered
in more than one counterpart all of which, taken together, shall
constitute one and the same Agreement.
10. THIRD PARTY RIGHTS
This Agreement does not create any right under the Contracts (Rights of
Third Parties) Xxx 0000 which is enforceable by any person who is not a
party to this Agreement.
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11. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance
with English law.
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SCHEDULE 1
CONDITIONS PRECEDENT IN RESPECT OF DRAWDOWN
1. AUTHORISATIONS
(a) A copy of the memorandum and articles of association,
certificate of incorporation and certificate of incorporation
on change of name of Funding.
(b) A copy of a resolution of the board of directors of Funding
authorising the entry into, execution and performance of each
of the Transaction Documents to which Funding is a party and
authorising specified persons to execute those on its behalf.
(c) A certificate of a director of Funding certifying:
(i) that each document delivered under this paragraph 1
of Schedule 1 is correct, complete and in full force
and effect as at a date no later than the date of
execution of the Ninth Issuer Intercompany Loan
Agreement and undertaking to notify the Security
Trustee if that position should change prior to the
first Drawdown Date; and
(ii) as to the identity and specimen signatures of the
directors and signatories of Funding.
2. SECURITY
(a) The Funding Deed of Charge duly executed by the parties
thereto.
(b) Duly completed bank account mandates in respect of the
Funding GIC Account and the Funding Transaction Account.
(c) Security Power of Attorney for Funding.
3. LEGAL OPINION
Legal opinions of:
(a) Xxxxx & Xxxxx LLP, English legal advisers, addressed to the
Security Trustee;
(b) Xxxxxxxxx and May, English legal advisers to the Seller, the
Ninth Issuer and Funding, addressed to the Security Trustee;
(c) Cleary, Gottlieb, Xxxxx & Xxxxxxxx, U.S. legal advisers to
the Seller, the Ninth Issuer and Funding, addressed to the
Security Trustee; and
(d) Tods Xxxxxx LLP, Scottish legal advisors, addressed to the
Security Trustee.
4. TRANSACTION DOCUMENTS
Duly executed copies of:
(a) the Servicing Agreement;
(b) the Mortgages Trust Deed;
(c) the Abbey Deed and Power of Attorney;
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(d) the Funding Deed of Charge;
(e) the Funding Swap Agreement;
(f) the Corporate Services Agreement;
(g) the First Intercompany Loan Agreement, the Second
Intercompany Loan Agreement, the Third Intercompany Loan
Agreement, the Fourth Intercompany Loan Agreement, the Fifth
Intercompany Loan Agreement, the Sixth Intercompany Loan
Agreement, the Seventh Intercompany Loan Agreement, the
Eighth Intercompany Loan Agreement and the Ninth Intercompany
Loan Agreement;
(h) the Cash Management Agreement;
(i) the Bank Account Agreement;
(j) the Funding Guaranteed Investment Contract;
(k) the First Start-up Loan Agreement, the Second Start-up Loan
Agreement, the Third Start-up Loan Agreement, the Fourth
Start-up Loan Agreement, the Fifth Start-up Loan Agreement,
the Sixth Start-up Loan Agreement, the Seventh Start-up Loan
Agreement and the Eighth Start-up Loan Agreement;
(l) the Seller Power of Attorney;
(m) the Insurance Acknowledgements;
(n) Amended and Restated Mortgage Sale Agreement;
(o) the Ninth Issuer Deed of Charge;
(p) the Ninth Issuer Cash Management Agreement;
(q) the Ninth Issuer Swap Agreements;
(r) the Ninth Issuer Bank Account Agreement;
(s) the Ninth Issuer Corporate Services Agreement;
(t) the Ninth Issuer Trust Deed;
(u) the Ninth Issuer Global Notes;
(v) the Ninth Issuer Paying Agent and Agent Bank Agreement;
(w) the Mortgages Trustee Guaranteed Investment Contract; and
(x) the Amended and Restated Master Definitions and Construction
Schedule, the First Issuer Master Definitions and
Construction Schedule, the Second Issuer Master Definitions
and Construction Schedule, the Third Issuer Master
Definitions and Construction Schedule, the Fourth Issuer
Master Definitions and Construction Schedule, the Fifth
Issuer Master Definitions and Construction Schedule, the
Sixth Issuer Master Definitions and Construction Schedule,
the Seventh Issuer Master Definitions and Construction
Schedule, the Eighth Issuer Master Definitions and
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Construction Schedule and the Ninth Issuer Master Definitions and
Construction Schedule.
5. BOND DOCUMENTATION
(a) Confirmation that the Ninth Issuer Notes have been issued and
the subscription proceeds received by the Ninth Issuer; and
(b) Copy of the Prospectus and the Offering Circular.
6. MISCELLANEOUS
Solvency certificates from Funding signed by two directors of Funding
in or substantially in the form set out in Schedule 2 to the
Intercompany Loan Terms and Conditions.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed on
the day and year appearing on page 1.
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SIGNATORIES
FUNDING
SIGNED for and on behalf of )
XXXXXX FUNDING LIMITED )
NINTH ISSUER
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 9) PLC )
SECURITY TRUSTEE AND
AGENT BANK
SIGNED for and on behalf of )
JPMORGAN CHASE BANK, N.A. )
LONDON BRANCH )
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