Exhibit 4.5.3
Dated [ 28 ] January 2004
-------------------------
GRANITE FINANCE FUNDING LIMITED
as Funding
and
THE BANK OF NEW YORK
as Security Trustee
______________________________________________________________________________
SECOND PRIORITY FUNDING DEED OF CHARGE
______________________________________________________________________________
SIDLEY XXXXXX XXXXX & XXXX
0 XXXXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
REF: 30507-21/639486
CONTENTS
Clause Page No.
1. Interpretation...........................................................1
2. Covenant to Pay and to Perform...........................................2
3. Funding Security.........................................................2
4. Release of Funding Charged Property......................................5
5. Declaration of Trust.....................................................5
6. Enforcement..............................................................5
7. Upon Enforcement.........................................................9
8. Receiver................................................................10
9. Further Assurance and Power of Attorney.................................13
10. Crystallisation.........................................................14
11. Provisions relating to the Security.....................................14
12. Protection of Third Parties.............................................16
13. Set-Off.................................................................16
14. Representations and Covenants:..........................................17
15. Terms of Appointment....................................................18
16. Remuneration of the Security Trustee....................................29
17. Appointment, Removal and Retirement of Security Trustee.................32
18. Miscellaneous Provisions................................................34
19. Rights cumulative.......................................................34
20. Corporate Obligations...................................................35
21. Notices.................................................................35
22. Third Party Rights......................................................36
23. Execution in Counterparts; Execution and Effectiveness; Severability....36
24. Governing Law and Submission to Jurisdiction............................36
SCHEDULE 1 FORM OF SECURITY POWER OF ATTORNEY...............................39
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THIS DEED OF CHARGE is made on [28] January 2004
BETWEEN:
(1) GRANITE FINANCE FUNDING LIMITED (registered number 79308) a private
limited liability company incorporated under the laws of Jersey whose
London Branch is at 0xx Xxxxx, 00 Xxx Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX
("Funding");
(2) THE BANK OF NEW YORK, a New York banking corporation whose London
branch address is at One Canada Square, 00xx Xxxxx, Xxxxxx X00 0XX,
Xxxxxx Xxxxxxx, as security trustee (the "Security Trustee" which
expression shall include such person and all other persons for the
time being acting as the security trustee or security trustees
pursuant to this Second Priority Funding Deed of Charge); and
(3) GRANITE FINANCE TRUSTEES LIMITED (registered number 79309) a private
limited liability company incorporated under the laws of Jersey whose
registered office is at 00 Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0
0XX Channel Islands as trustee of the Mortgages Trust (the "Mortgages
Trustee");
WHEREAS:
(A) Funding has created first ranking fixed and floating security in
favour of the Security Trustee for the benefit of each of the Funding
Secured Creditors in respect of Funding's obligations under the
Funding Transaction Documents upon and subject to the terms of the
Funding Deed of Charge. The Security Trustee holds such security on
trust for the benefit of the Funding Secured Creditors.
(B) Funding has agreed to create security described in this Second
Priority Funding Deed of Charge which deed is supplemental to the
Funding Deed of Charge. Such security, which the Security Trustee
shall hold on trust for the benefit of the Funding Secured Creditors,
will rank subsequent to the security created under the Funding Deed
of Charge.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. Interpretation
1.1 Definitions: The provisions of the Master Definitions Schedule as
amended and restated by (and appearing in Appendix 1 to) the Master
Definitions Schedule Seventh Amendment Deed made on [23] January 2004
between, among others, Funding and the Security Trustee (as the same
have been and may be amended, varied or supplemented from time to
time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Agreement.
1.2 Construction: In this Deed, except where the context otherwise
requires:
(a) This Deed is supplemental to the Funding Deed of Charge and
is in addition to and does not supersede the terms and
effect of the Funding Deed of Charge (including, for the
avoidance of doubt, all Deeds of Accession).
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(b) the terms of the Master Definitions Schedule and of any
agreement in existence at the date hereof between the
parties hereto in relation to any such documents are
incorporated in this Deed to the extent required to ensure
that any proposed disposition of the Funding Charged
Property contained in this Deed is a valid disposition in
accordance with Section 2(1) of the Law of Property
(Miscellaneous Provisions) Xxx 0000;
(c) a reference in this Deed to any property, assets,
undertakings or rights includes, unless the context
otherwise requires, present and future property, assets,
undertakings or rights;
(d) "this Second Priority Funding Deed of Charge" or "this Deed"
means this Deed of Charge and the Schedule hereto (as from
time to time modified and/or supplemented in accordance with
the provisions set out herein) and each other document or
deed entered into pursuant hereto (as from time to time
modified/and or supplemented as aforesaid) and expressed to
be supplemental hereto.
2. Covenant to Pay and to Perform
Subject to the provisions of the Funding Transaction Documents,
including, without limitation, any limited recourse provisions,
Funding covenants with and undertakes to the Security Trustee for
itself and as trustee for the Funding Secured Creditors that it will:
(a) duly and punctually pay and discharge all monies and
liabilities whatsoever which now are or at any time
hereafter may (whether before or after demand) become due
and payable by Funding to the Security Trustee (whether for
its own account or as trustee for the Funding Secured
Creditors) or to any of the other Funding Secured Creditors,
whether actually or contingently, under this Deed or any
other of the Funding Transaction Documents; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any of the Funding
Transaction Documents,
PROVIDED THAT every payment in respect of any Funding Transaction
Document made to the relevant Funding Secured Creditor in the manner
provided in such Funding Transaction Document shall operate in
satisfaction pro tanto of the relevant covenant and undertaking by
Funding in this Clause.
3. Funding Security
3.1 Trust Property:
(a) Funding, by way of a fixed charge for the payment or
discharge of the Funding Secured Obligations, subject to
Clause 4 (Release of Funding Charged Property) of the
Funding Deed of Charge, hereby charges to the Security
Trustee, all of its right, title, benefit and interest,
present and future, in, to and under the Funding Share of
the Trust Property (including, without limitation, all
Scottish Trust Property, present and future, comprised in
the Trust Property) and including all rights to receive
payment of
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any amounts which may become payable to Funding thereunder
and all payments received by Funding thereunder including,
without limitation, all rights to serve notices and/or make
demands thereunder and/or to take such steps as are required
to cause payments to become due and payable thereunder and
all rights of action in respect of any breach thereof and
all rights to receive damages or obtain relief in respect
thereof and the proceeds of any of the foregoing, [and all
of its right, title and interest in, to and under the
[trusts] declared and created pursuant to the Mortgages
Trust Deed] TO HOLD the same unto the Security Trustee
absolutely.
(b) [To the intent that the Security Trustee shall have a
security interest in accordance with the Security Interests
(Jersey) Law 1983 (the "Jersey Security Law") (and as
secured party for the purposes of such law) for the payment
or discharge of the Funding Secured Obligations, subject to
Clause 4 (Release of Funding Charged Property) of the
Funding Deed of Charge and [in addition and subject to (a)
above, ]Funding (as debtor for the purposes of the Jersey
Security Law) hereby assigns, to the extent that [same] is
situate in Jersey at any relevant time, to the Security
Trustee all of its right, title, benefit and interest,
present and future, in, to and under the Funding Share of
the Trust Property (including, without limitation, all
Scottish Trust Property, present and future, comprised in
the Trust Property) and including all rights to receive
payment of any amounts which may become payable to Funding
thereunder and all payments received by Funding thereunder
including, without limitation, all rights to serve notices
and/or make demands thereunder and/or to take such steps as
are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain relief
in respect thereof and the proceeds of any of the foregoing,
[and all of its right, title and interest in, to and under
the [trusts] declared and created pursuant to the Mortgages
Trust Deed], TO HOLD the same unto the Security Trustee
absolutely.]
3.2 Floating Charge: Funding, by way of floating security for the payment
or discharge of the Funding Secured Obligations, subject to Clause 4
(Release of Funding Charged Property of the Funding Deed of Charge),
hereby charges by way of a floating charge in favour of the Security
Trustee the whole of its undertaking and all its property, assets and
rights, whatsoever and wheresoever, both present and future,
(including, the whole undertaking, property, assets and rights of
Funding situated in Scotland or governed by the law of Scotland).
3.3 Ranking of Security: The Security Interests created under or pursuant
to this Second Priority Funding Deed of Charge rank subsequent to the
first ranking Security Interests created under or pursuant to the
Funding Deed of Charge.
3.4 Title Guarantee: Each of the dispositions of or charges over property
effected in or pursuant to this Second Priority Funding Deed of
Charge is made with full title guarantee (or, in relation to assets
or rights situated in Scotland or governed by the law of Scotland,
with absolute warrandice).
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3.5 Further Acquired Items: For the avoidance of doubt, it is hereby
confirmed that the Security Interests created under or pursuant to
Clause 3.1 (Trust Property) are intended to be [specific and fixed
assignments by way of security of, or] specific and fixed charges
over (as the case may be) the property and assets to which they
relate, both present and future, including property and assets which
are acquired after the date hereof.
3.6 No Transfer of Obligations: Notwithstanding anything else in this
Second Priority Funding Deed of Charge, it is hereby agreed that
dispositions of property effected in or pursuant to this Second
Priority Funding Deed of Charge do not transfer obligations, and
nothing herein shall be construed as a transfer of obligations to,
the Security Trustee.
3.7 Notice and Acknowledgement: Funding hereby intimates and gives notice
to the Mortgages Trustee as trustee under and in terms of the
Mortgages Trust Deed of the assignation in security made in terms of
Clause 3.1 (Trust Property) and the Mortgages Trustee by its
execution of this Deed as such trustee immediately subsequent to the
execution hereof by Funding confirms that as at the date hereof it
has received no intimation of any other dealing with the Funding
Share of the Trust Property or any part thereof except in accordance
with the terms of the Funding Transaction Documents.
3.8 Security Trustee's Discretion in relation to Funding Charged
Property: Without prejudice to any other rights of the Security
Trustee after the security created under this Deed has become
enforceable and subject to the terms of the Funding Transaction
Documents, the Security Trustee may at any time after any part or
parts of the Funding Security have become enforceable:
(a) enter into, make, execute, sign, deliver and do all such
contracts, agreements, deeds, receipts, payments,
assignments, transfers, conveyances, assurances and things
and bring, prosecute, enforce, defend and abandon all such
actions, suits and proceedings in relation to the Funding
Charged Property as it may think expedient;
(b) exercise or refrain from exercising, in such manner as in its
absolute discretion the Security Trustee shall think fit,
all or any of the rights, powers, authorities discretions or
remedies of Funding under or in relation to the Funding
Charged Property or incidental to the ownership thereof and,
in particular but without limiting the generality of the
foregoing, exercise all rights to vote or to give any
consent or notification or make any declaration in relation
to such Funding Charged Property. For the avoidance of
doubt, the Security Trustee shall not be required to have
regard to the interests of Funding in the exercise or
non-exercise of any such rights, powers, authorities,
discretions and remedies or to comply with any direction
given by Funding in relation thereto; and
(c) demand, xxx for and take any advice or institute any
proceedings to recover or obtain payment of any amounts
which may then be due and payable to Funding but which
remains unpaid under or in respect of the Funding Charged
Property or any part thereof either in its own name or in
the name of Funding.
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4. Release of Funding Charged Property
4.1 Release, Reassignment or Discharge: Upon the irrevocable and
unconditional payment in full or discharge (or any combination of the
foregoing) of all the Funding Secured Obligations and upon the
Security Trustee being satisfied that Funding is under no further
actual or contingent obligation under this Deed or any other Funding
Transaction Document, the Security Trustee shall at the request and
cost of Funding release, reassign and/or discharge from the Security
Interests all the relevant Funding Charged Property to, or to the
order of, Funding; provided that where any such release,
re-assignment or discharge is made in whole or in part on the faith
of any payment, security or other disposition which is avoided or
which must be repaid on bankruptcy, liquidation or otherwise, the
security constituted by or pursuant to this Second Priority Funding
Deed of Charge and the liability of Funding hereunder and thereunder
shall continue as if there had been no such release, re-assignment or
discharge.
4.2 Trust Property: On the repurchase by the Seller from the Mortgages
Trustee of any Mortgage Loan together with its Related Security
pursuant to and in accordance with the terms of the Mortgage Sale
Agreement, such Mortgage Loan and its Related Security shall no
longer form part of the Trust Property (or in the case of any
Scottish Mortgage Loan and its Related Security, the Scottish Trust
Property, in accordance with Clause 9 (Termination of Trust) of the
relevant Scottish Trust Deed) and shall automatically be released
from any Security Interest created under or pursuant to this Deed in
respect of the Funding Share of the Trust Property.
5. Declaration of Trust
The Security Trustee hereby declares that it holds on trust for the
Funding Secured Creditors (or, as the case may be, the relevant
Funding Secured Creditor), upon and subject to the terms and
conditions of this Second Priority Funding Deed of Charge, all of the
covenants, undertakings and representations made to the Security
Trustee under this Second Priority Funding Deed of Charge or any
other Funding Transaction Document and all of Security Interests made
or given to the Security Trustee or to be made or given to it for the
purpose of securing the Funding Secured Obligations under or pursuant
to this Second Priority Funding Deed of Charge or any other Funding
Transaction Document.
6. Enforcement
6.1 Notification: The Security Trustee shall, if reasonably practicable,
give prior notification to the Seller, and the Cash Manager and each
Funding Secured Creditor of the Security Trustee's intention to
enforce the security created by this Second Priority Funding Deed of
Charge. However, the failure of the Security Trustee to provide such
notification shall not in any way prejudice the ability of the
Security Trustee to enforce the security created by this Second
Priority Funding Deed of Charge.
6.2 Enforceable:
(a) Without prejudice to the provisions of Clause 8 (Receiver)
the security created under or pursuant to this Second
Priority Funding Deed of Charge shall become
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immediately enforceable and the power of sale and other
powers conferred by Section 101 of the 1925 Act, as varied
or amended by this Second Priority Funding Deed of Charge,
shall be exercisable by the Security Trustee, in each case
at any time:
(i) upon the service on Funding by the Security Trustee
of an Intercompany Loan Enforcement Notice; or
(ii) if there are no Intercompany Loans outstanding,
following a default in payment of any other Funding
Secured Obligation on its due date or within any
applicable grace period following such due date
stated in the relevant Funding Transaction Document
but subject always to Clause 6.7 (No Enforcement by
Funding Secured Creditors and Limited Recourse) of
the Funding Deed of Charge.
(b) [For the purposes of the Jersey Security Interests, upon the
occurrence of any of the events specified in Clause 6.2 (a)
(i) or (ii) (which shall constitute events of default for
the purposes of the Jersey Security Interests in accordance
with the Jersey Security Law) the Security Trustee shall
have the right but not the obligation to give notice (the
"Funding Jersey Enforcement Notice") to Funding in
accordance with the Jersey Security Law and the power of
sale of the Funding Jersey Secured Property shall become
exercisable without the order of the Jersey court in
accordance with the Jersey Security Law so that the Jersey
Security Interests shall be enforceable in accordance with
the provisions of the Jersey Security Law.]
6.3 Power of Sale:
(a) Notwithstanding any other provision of this Second Priority
Funding Deed of Charge, the Funding Secured Obligations
shall be deemed to have become due and payable for the
purposes of Section 101 of the 1925 Act and Article 8 of the
Jersey Security Law, and (to the extent applicable) the
statutory power of sale and of appointing a receiver and
other powers which are conferred on mortgagees under the
1925 Act as varied or extended by this Second Priority
Funding Deed of Charge shall be deemed to arise immediately
after execution of this Deed.
(b) Section 103 of the 1925 Act shall not apply to this Deed and
forthwith after the security has become enforceable in
accordance with Clause 6.2 (Enforceable) the statutory power
of sale, as extended by this Second Priority Funding Deed of
Charge, and all other powers shall become immediately
exercisable without notice to Funding and the provisions of
the 1925 Act regulating the power of sale shall, so far as
they relate to the Funding Charged Property, be varied and
extended accordingly.
6.4 Discretionary Enforcement: Subject to the provisions of this Second
Priority Funding Deed of Charge, the Security Trustee may at any
time, at its discretion and without notice, take such proceedings
and/or other action as it may think fit against, or in relation to,
Funding or any other party to any of the Funding Transaction
Documents to enforce their obligations under any of the Funding
Transaction Documents. Subject to the provisions of this Second
Priority
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Funding Deed of Charge, at any time after the security has become
enforceable in accordance with Clause 6.2 (Enforceable), the
Security Trustee may, at its discretion and without notice, take such
steps as it may think fit to enforce the security created pursuant to
this Second Priority Funding Deed of Charge.
6.5 Law of Property Xxx 0000: [Subject in the case of the Funding Jersey
Secured Property to the provisions of the Jersey Security Law,] the
provisions of the 1925 Act relating to the power of sale and the
other powers conferred by Section 101(1) and (2) are hereby extended
in relation to Funding as if such extensions were contained in the
1925 Act such that at any time after the security constituted by this
Second Priority Funding Deed of Charge has become enforceable in
accordance with Clause 6.2 (Enforceable) above, the Security Trustee
may in its absolute discretion:
(a) make demand in the name of the Funding Secured Creditors or
in its own right for any monies and liabilities in respect
of the Funding Charged Property;
(b) enforce any rights it may have in respect of the whole or
any part of the Funding Charged Property in such manner and
upon such terms as the Security Trustee shall think fit;
(c) take possession of, get in and collect the Funding Charged
Property and perfect the interests comprised therein;
(d) subject as expressly provided in Clause 6.6 (Restriction on
Disposal of Funding Charged Property), sell, transfer,
convey, dispose of vary or otherwise deal with, and also to
grant any option to purchase, and to effect exchanges of,
the whole or any part of the Funding Charged Property or any
interest therein in such manner, for such consideration (if
any) and generally upon such terms (including by deferred
payment or payment by instalments) as it may think fit
and/or to concur in any of the foregoing (and nothing shall
preclude any such disposal being made to a Funding Secured
Creditor);
(e) carry out any transaction, scheme or arrangement which the
Security Trustee may, in its absolute discretion, consider
appropriate with a view to or in connection with the sale of
the Funding Charged Property;
(f) do all or any of the things or exercise all or any of the
powers, authorities and discretions conferred expressly or
by implication on any Receiver under Clause 8.6 (Powers of
the Receiver) or otherwise under this Second Priority
Funding Deed of Charge; and
(g) exercise all or any of the powers conferred on mortgagees by
the 1925 Act as varied or extended by this Second Priority
Funding Deed of Charge and any other rights and remedies
that may be conferred by statute or common law or in equity
on mortgagees or receivers.
6.6 Restriction on Disposal of Funding Charged Property: Notwithstanding
the foregoing provisions of this Clause 6 (Enforcement), if the
Funding Security has become enforceable
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otherwise than by reason of a default in payment of any amount due in
respect of any Intercompany Loan which would be utilised to fund the
payment of any amount due on the Class A Notes of any Issuer, the
Security Trustee will not be entitled to dispose of all or part of the
Funding Charged Property unless either:
(a) a sufficient amount would be realised to allow a full and
immediate discharge of such amount under each Intercompany
Loan as would be sufficient to fund the payment in full of
all amounts owing in respect of the Class A Notes of each
Issuer and all prior ranking amounts due by Funding in
accordance with the relevant Funding Priority of Payments;
or
(b) the Security Trustee is of the opinion, which shall be
binding on the Funding Secured Creditors, reached after
considering at any time and from time to time the advice of
any financial or such other professional advisers selected
by the Security Trustee for the purpose of giving such
advice that the cashflow prospectively receivable by Funding
will not, or that there is a significant risk that it will
not, be sufficient, having regard to any other relevant
actual, contingent or prospective liabilities of Funding, to
discharge in full in due course such amount under each
Intercompany Loan as would be sufficient to fund the payment
in full of all amounts owing in respect of the Class A Notes
of each Issuer and all prior ranking amounts due by Funding.
The fees and expenses of the aforementioned financial
adviser or such other professional adviser selected by the
Security Trustee shall be paid by Funding; and
(c) the Security Trustee shall not be bound to make the
determination set out above unless it shall have been
indemnified and/or secured to its satisfaction against all
liabilities to which it may thereby become liable or which
it may incur by so doing,
PROVIDED THAT if the Security Trustee is unable to obtain the advice
referred to in paragraph (b) above having made reasonable efforts to
do so, this Clause 6.6 (Restriction on Disposal of Funding Charged
Property) shall not apply.
6.7 Authorised Investments: Any monies which under the trusts of this
Second Priority Funding Deed of Charge ought to or may be invested by
the Security Trustee (or the Cash Manager on its behalf) after the
security has become enforceable in accordance with Clause 6.2
(Enforceable) may be invested in the name or under the control of the
Security Trustee in any Authorised Investments and the Security
Trustee may at any time vary or transfer (or direct the Cash Manager
to vary or transfer) any of such Authorised Investments for or into
other such Authorised Investments as the Security Trustee in its
absolute discretion may determine, and shall not be responsible (save
where any loss results from the Security Trustee's fraud, wilful
default or gross negligence or that of its officers or employees) for
any loss occasioned by reason of any such investments whether by
depreciation in value or otherwise, provided that such Authorised
Investments were made in accordance with the foregoing provisions.
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7. Upon Enforcement
7.1 Upon Service of Intercompany Loan Enforcement Notice: From and
including the date when the Security Trustee serves an Intercompany
Loan Enforcement Notice (which has not been withdrawn) on Funding:
(a) notwithstanding any other provision hereof or of any other
Funding Transaction Document, no amount may be withdrawn
from the Funding Bank Accounts except with the prior written
consent of the Security Trustee; and
(b) (provided that the Mortgages Trustee and the Cash Manager
have been notified of the service of an Intercompany Loan
Enforcement Notice) no action whatsoever may be taken by the
Mortgages Trustee in relation to or in respect of the
Funding Charged Property without the prior written consent
of the Security Trustee save for any action required to
preserve or protect the Mortgages Trustee's right, title or
interest therein.
7.2 Application
Prior to and following enforcement of the Funding Security all
amounts at any time held by Funding, the Cash Manager or the Security
Trustee in respect of the security created under this Deed shall be
held and/or applied by such person subject to and in accordance with
the relevant provisions of the Funding Deed of Charge.
7.3 Certification of Amounts: The Security Trustee shall be entitled to
rely on (and to accept as conclusive evidence save in the case of
manifest error) a certificate from each Funding Secured Creditor as
to the amounts owed to such Funding Secured Creditor under the
Funding Transaction Documents. The Security Trustee shall not take
into account for the purpose of the application of moneys in
accordance with the Funding Post-Enforcement Priority of Payments any
amounts of which it has not been notified by the intended recipient
on or prior to the date in question.
7.4 Scottish Trust Property: Without prejudice to the foregoing
provisions of this Clause 7 (Upon Enforcement), Funding and the
Mortgages Trustee hereby covenant and agree with and undertake to the
Security Trustee that if at any time after the security constituted
under this Deed shall have become enforceable the Security Trustee or
any Receiver shall so require, they will join together in directing
the Seller to sell or dispose of all or part of the Scottish Trust
Property on terms previously approved by the Security Trustee and/or
in causing the trusts constituted by all and any Scottish Trust Deeds
to be wound up or performed and they will take all such actions and
execute all such documents as may be necessary to effect such sale or
disposal or winding up or performance and the distribution or
transfer of the Scottish Trust Property or any part thereof in
accordance with the terms of each Scottish Trust Deed, the Mortgages
Trust Deed and this Second Priority Funding Deed of Charge. The
Seller and the Mortgages Trustee hereby acknowledge and consent to
the foregoing as trustee and beneficiary respectively in terms of
each Scottish Trust Deed.
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8. Receiver
8.1 Appointment: At any time after the security constituted hereunder
becomes enforceable, and whether or not the Security Trustee has
taken possession of the Funding Charged Property, the Security
Trustee may appoint, by writing or by deed, such person or persons
(including an officer or officers of the Security Trustee) as the
Security Trustee thinks fit to be a receiver, a receiver and manager
or an administrative receiver of the Funding Charged Property or any
part thereof (each a "Receiver") and, in the case of an appointment
of more than one person, to act together or independently of the
other or others.
8.2 Removal and Replacement: Except as otherwise required by statute, the
Security Trustee may by writing or by deed remove a Receiver and
appoint another in its place or to act with a Receiver and the
Security Trustee may apply to the court for an order removing an
administrative receiver.
8.3 Extension of Appointment: The exclusion of any part of the Funding
Charged Property from the appointment of the Receiver shall not
preclude the Security Trustee from subsequently extending its
appointment (or that of the Receiver replacing it) to that part of
the Funding Charged Property or appointing another Receiver over any
other part of the Funding Charged Property.
8.4 Agent of Funding: The Receiver shall, so far as the law permits, be
the agent of Funding and Funding alone shall be responsible for the
Receiver's contracts, engagements, acts, omissions, misconduct,
negligence or default and for liabilities incurred by it; and in no
circumstances whatsoever shall the Security Trustee or any Funding
Secured Creditor be in any way responsible for or incur any liability
in connection with its contracts, engagements, acts, omissions,
misconduct, negligence or default, and if a liquidator of Funding
shall be appointed, the Receiver shall act as principal and not as
agent for the Security Trustee. Notwithstanding the generality of the
foregoing, such Receiver shall in the exercise of its powers,
authorities and discretions conform to the regulations (if any) from
time to time made and given by the Security Trustee.
8.5 Remuneration: Subject as provided otherwise by applicable law, the
remuneration of the Receiver shall be fixed by the Security Trustee
and may be or include a commission calculated by reference to the
gross amount of all monies received or otherwise. Such remuneration
and such commission) (if any) shall be payable hereunder by Funding
alone subject always to Clause 8.3 (Funding Post-Enforcement Priority
of Payments) of the Funding Deed of Charge and the amount of such
remuneration shall form part of the Funding Secured Obligations and
shall accordingly be secured on the Funding Charged Property under
the security created by or pursuant to this Second Priority Funding
Deed of Charge.
8.6 Powers of the Receiver: Subject in the case of the Funding Jersey
Secured Property to the provisions of Jersey Security Law, the
Receiver of Funding, in addition to any powers conferred on an
administrative receiver, receiver, manager or receiver and manager by
statute or common law, shall have the power to:
(a) take possession of, get in and collect the Funding Charged
Property;
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(b) subject as expressly provided in Clause 6.6 (Restriction on
Disposal of Funding Charged Property), sell, transfer,
convey, license, release or otherwise dispose of vary or
deal with, and also to grant any option to purchase, and to
effect exchanges of, the whole or any part of Funding
Charged Property or any interest therein and to grant or
accept surrenders, disclaimers and variations in relation to
or otherwise affecting the Funding Charged Property in each
case in such manner, for such consideration (if any) and
generally upon such terms (including by deferred payment or
payment by instalments) as it may think fit and/or to concur
in any of the foregoing (and nothing shall preclude any such
disposal being made to a Funding Secured Creditor);
(c) carry out any transaction, scheme or arrangement which the
Security Trustee may, in its absolute discretion, consider
appropriate with a view to or in connection with the sale of
the Funding Charged Property;
(d) insure the Funding Charged Property against such risks and
for such amounts as the Security Trustee may consider
prudent and to obtain bonds and performance guarantees;
(e) otherwise protect, maintain or improve, the Funding Charged
Property or any part thereof in any manner and for any
purpose whatsoever as it shall think fit;
(f) transfer all or any of the Funding Charged Property and/or
any of the liabilities to any other company or body
corporate, whether or not formed or acquired for the purpose
(and whether or not a subsidiary or associated company of
the Security Trustee or any other party to the Funding
Transaction Documents) and to form a subsidiary or
subsidiaries of Funding;
(g) carry on and manage or concur in managing or appoint a
manager of, the whole or any part of the business of Funding
in such manner as it shall in its absolute discretion think
fit including the power to enter into any contract and to
perform, repudiate, rescind or vary any contract to which
Funding is a party;
(h) sell or concur in selling the whole or any part of Funding's
business whether as a going concern or otherwise;
(i) appoint, dismiss, engage or vary the terms of employment of
any employees, managers, agents or advisers of Funding upon
such terms as to remuneration and otherwise for such periods
as it may in its absolute discretion think fit;
(j) in connection with the exercise or proposed exercise of any
of its powers or in order to obtain payment of its
remuneration or reimbursement of its expenses (in each case,
whether or not already due), to borrow or raise money from
any person, without security or on the security of the
Funding Charged Property (either in priority to the security
constituted by this Second Priority Funding Deed of Charge
or otherwise) and generally in such manner and on such terms
as it may think fit;
11
(k) bring, defend, submit to arbitration, negotiate, compromise,
enforce, abandon and settle actions, suits, claims and
proceedings concerning or affecting the Funding Charged
Property or the security created under or pursuant to this
Second Priority Funding Deed of Charge;
(l) exercise any powers, discretions, voting, conversion or
other rights or entitlements in relation to any of the
Funding Charged Property or incidental to the ownership of
or rights in or to any of the Funding Charged Property and
to complete or effect any transaction entered into by
Funding or disclaim, abandon or modify all or any of the
outstanding contracts or arrangements of Funding relating to
or affecting the Funding Charged Property;
(m) generally carry out, or cause to be carried out any
transaction or scheme or arrangement whatsoever, whether
similar or not to any of the foregoing, in relation to the
Funding Charged Property which it may consider expedient as
effectual as if it were solely and absolutely entitled to
the Funding Charged Property;
(n) in connection with the exercise of any of its powers,
execute or do, or cause or authorise to be executed or done,
on behalf of or in the name of Funding or otherwise, as it
may think fit, all documents, acts or things, acts or things
which it may consider appropriate;
(o) redeem, discharge or compromise any security whether or not
having priority to the security created hereunder;
(p) enter into covenants, guarantees, commitments, indemnities
and other obligations or liabilities as it shall think fit;
(q) pay and discharge out of the profits and income of the
Funding Charged Property and the monies to be made by it
carrying on any such business as aforesaid the expenses in
and about the carrying on and management of such business or
in the exercise of any of the powers conferred by Clause 9
(Receiver) or otherwise in respect of the Funding Charged
Property and all outgoings which it shall think fit to pay
and to apply the residue of the said profits, income or
monies in the manner provided by Clause 8.3 (Funding
Post-Enforcement Priority of Payments) of the Funding Deed
of Charge; and
(r) exercise any other powers, rights and/or remedies that may
be available at law or in equity including the powers
referred to in Section 1 of the Insolvency Xxx 0000.
8.7 Security: The Security Trustee may from time to time and at any time
require any such Receiver to give security for the due performance of
its duties and may fix the nature and amount of the security to be so
given but the Security Trustee shall not be bound in any such case to
require any such security.
8.8 Application by Receiver: Save so far as otherwise directed by the
Security Trustee, all monies from time to time received by such
Receiver shall be paid over to the Security Trustee to be held by it
on the trusts declared under this Second Priority Funding Deed of
Charge and to be
12
distributed in accordance with Clause 8.3 (Funding Post-Enforcement
Priority of Payments) of the Funding Deed of Charge and Schedule 3
(Funding Priority of Payments to the Funding Deed of Charge).
8.9 Payment to Receiver: The Security Trustee may pay over to such
Receiver any monies constituting part of the Funding Charged Property
to the intent that the same may be applied for the purposes of this
Second Priority Funding Deed of Charge by such Receiver and the
Security Trustee may from time to time determine what funds the
Receiver shall be at liberty to keep in hand with a view to the
performance of its duties as such Receiver.
8.10 No Restrictions: None of the restrictions imposed by the 1925 Act in
relation to the appointment of receivers or the giving of notice or
otherwise shall apply in relation to the Receiver.
9. Further Assurance and Power of Attorney
9.1 Further Assurance: Funding covenants with and undertakes to the
Security Trustee from time to time (notwithstanding that the security
may not have become enforceable and the Security Trustee may not have
served an Intercompany Loan Enforcement Notice) upon demand:
(a) to execute, at Funding's cost, any document or do
any act or thing which the Security Trustee or any Receiver
may specify (including executing such Security Interests
over its rights in and over the Funding Charged Property and
any other assets of Funding in such form as the Security
Trustee and/or any Receiver may require) with a view to:
(i) registering, perfecting, protecting or improving any
charge or security or Security Interest created or
intended to be created by or pursuant to this Second
Priority Funding Deed or Charge (including any act
or document which may be required or desirable under
the laws of any jurisdiction in which any property
or assets may be located in order to confer on
the Security Trustee security over such property and
assets equivalent or similar to the security
intended to be conferred by or pursuant to this
Second Priority Funding Deed of Charge) and in such
form as the Security Trustee or the Receiver may
specify; and/or
(ii) facilitating the realisation of or enforcement of
rights of, all or any part of the Funding Charged
Property or the exercise, or proposed exercise, of
any of the powers, duties or discretions vested or
intended to be vested in the Security Trustee or
such Receiver by or pursuant to this Second
Priority Funding Deed of Charge or doing any act or
thing deemed necessary by the Security Trustee or
the Receiver,
(b) to give or join in giving or procuring the giving of any
notices to any persons and obtain or procure that there is
obtained any necessary acknowledgements in relation
13
to such notices, all in such form as the Security Trustee or
the Receiver may require and at the cost of Funding,
and for the purpose of this Clause 9.1 a certificate in writing
signed by the Security Trustee to the effect that any particular
assurance or thing is required by it shall be conclusive evidence of
that fact.
9.2 Execution of Power of Attorney: Immediately upon execution of this
Deed, Funding shall execute and deliver to the Security Trustee the
Power of Attorney in or substantially in the form set out in Schedule
1.
10. Crystallisation
Notice: The Security Trustee may have, the Security Trustee may, by
notice in writing to Funding, declare that the floating charge hereby
created shall be converted into a specific fixed charge over such of
the undertaking, property and assets of Funding as the Security
Trustee may specify in such notice at any time if:
(a) a Potential Intercompany Loan Event of Default or
Intercompany Loan Event of Default has occurred; or
(b) it believes that the Funding Charged Property or any part
thereof is in danger of being seized or sold under any form
of distress, execution or diligence levied or is otherwise
in jeopardy or;
(c) it considers that it is desirable in order to protect the
priority of the security created by this Second Priority
Funding Deed of Charge.
11. Provisions relating to the Security
11.1 Continuing Security: The security created under or pursuant to this
Second Priority Funding Deed of Charge shall be:
(a) in addition to and independent of and shall not operate so
as to prejudice or affect or merge in any other security,
right of recourse or other right whatsoever which may be
held by any of the Funding Secured Creditors or the Security
Trustee on their behalf in respect of the whole or any part
of the Funding Secured Obligations and shall not be affected
by any release, reassignment or discharge of such other
security; and
(b) a continuing security for the Funding Secured Obligations
and shall remain in force as continuing security for the
Funding Secured Creditors and shall not be considered as
satisfied or discharged by any intermediate payment or
settlement of the whole or any part of the Funding Secured
Obligations or the existence at any time of a credit balance
on any current or other account or any other matter or thing
whatsoever.
11.2 Consolidation: Section 93 of the 1925 Act shall not apply in relation
to any of the Security Interest contained in this Second Priority
Funding Deed of Charge.
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11.3 Ruling Off: If the Security Trustee receives notice of any
Encumbrance affecting the whole or any part of the Funding Charged
Property or any security granted hereunder in contravention of the
provisions hereof, in each case other than the Security Interests
created under or pursuant to the Funding Deed of Charge:
(a) the Security Trustee may open a new account in the name of
Funding and, if it does not, it shall nevertheless be deemed
to have done so at the time it received such notice; and
(b) all payments made by Funding to the Security Trustee after
the Security Trustee receives such notice shall be credited
or deemed to have been credited to the new account, and in
no circumstances whatsoever shall operate to reduce the
Funding Secured Obligations as at the time the Security
Trustee received such notice.
11.4 Avoidance of Payments: Any settlement, discharge or release between
(a) Funding and (b) the Security Trustee or any Receiver (the
"Relevant Person(s)") shall be conditional upon no security or
payment granted or made to the Relevant Person(s) by Funding or any
other person being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency or liquidation for the
time being in force and, in the event of such security or payment
being so avoided or reduced, the Relevant Person(s) shall be entitled
to recover the value or amount of such security or payment from
Funding and from the security subsequently as if such settlement,
discharge or release had not occurred.
11.5 Retention of Charges: If the Security Trustee shall have reasonable
grounds for believing that Funding may be insolvent or deemed to be
insolvent pursuant to the provisions of the Insolvency Xxx 0000, as
amended, (and production of a solvency certificate of a duly
authorised officer of Funding shall be prima facie evidence of the
solvency of Funding) as at the date of any payment made by Funding to
the Security Trustee or otherwise in respect of the Funding Secured
Obligations and that as a result, such payment may be capable of
being avoided or clawed back, the Security Trustee shall be at
liberty to retain the charges contained in or created pursuant to
this Second Priority Funding Deed of Charge until the expiry of a
period of one month plus such statutory period within which any
assurance, security, guarantee or payment can be avoided or
invalidated after the payment and discharge in full of all Funding
Secured Obligations notwithstanding any release, settlement,
discharge or arrangement which may be given or made by the Security
Trustee on, or as a consequence of, such payment or discharge of
liability provided that, if at any time within such period, a
petition shall be presented to a competent court for an order for the
winding up or the making of an administration order in respect of
Funding, or if Funding shall commence to be wound up or to go into
administration or any analogous proceedings shall be commenced by or
against Funding, as the case may be, the Security Trustee shall be at
liberty to continue to retain such security for such further period
as the Security Trustee may determine and such security shall be
deemed to continue to have been held as security for the payment and
discharge to the Security Trustee of all Funding Secured Obligations.
11.6 Possession: Entry into possession of the Funding Charged Property or
any part thereof shall not render the Security Trustee or any
Receiver of Funding liable to account as mortgagee or creditor in
possession for anything except actual receipts. If and whenever the
Security
15
Trustee or the Receiver enters into possession of the Funding Charged
Property, it shall be entitled at any time to go out of such
possession.
11.7 Change of Name, etc.: This Second Priority Funding Deed of Charge
shall remain valid and enforceable notwithstanding any change in the
name, composition or constitution of the Security Trustee or Funding
or any amalgamation, merger or consolidation by the Security Trustee
or Funding, with any other corporation (whether, in the case of
Funding, permitted under the Funding Transaction Documents or not).
12. Protection of Third Parties
12.1 No Enquiry: No purchaser from, or other person dealing with, the
Security Trustee or a Receiver shall be concerned to enquire whether
any of the powers exercised or purported to be exercised under this
Second Priority Funding Deed of Charge has arisen or become
exercisable, whether the Funding Secured Obligations remain
outstanding or have become payable, whether the Security Trustee or
the Receiver is authorised to act or as to the propriety or validity
of the exercise or purported exercise of any power; and the title and
the position of such a purchaser or other person shall not be
impeachable by reference to any of those matters and all the
protection to purchasers contained in Sections 104 and 107 of the
1925 Act shall apply to any person purchasing from or dealing with
the Security Trustee or any such Receiver.
12.2 Receipts to Third Parties: Upon any sale, calling in, collection,
enforcement or other realisation of the Funding Charged Property in
accordance with the terms hereof and upon any other dealing or
transaction under or pursuant to this Second Priority Funding Deed of
Charge, the receipt of the Security Trustee or any Receiver shall be
an absolute and a conclusive discharge to a purchaser or other person
dealing with the Security Trustee or such Receiver and shall relieve
it of any obligation to see to the application of any monies paid to
or by the direction of the Security Trustee or such Receiver.
13. Set-Off
The Security Trustee may at any time following the service of an
Intercompany Loan Enforcement Notice without notice and
notwithstanding any settlement of account or other matter whatsoever
combine or consolidate all or any existing accounts of Funding
whether in its own name or jointly with others and held by it or any
Funding Secured Creditor and may set-off or transfer all or any part
of any credit balance or any sum standing to the credit of any such
account (whether or not the same is due to Funding from the Security
Trustee or relevant Funding Secured Creditor and whether or not the
credit balance and the account in debit or the Funding Secured
Obligations are expressed in the same currency in which case the
Security Trustee is hereby authorised to effect any necessary
conversions at its prevailing rates of exchange) in or towards
satisfaction of any of the Funding Secured Obligations (and on or at
any time after the security created under this Second Priority
Funding Deed of Charge has become enforceable in accordance with
Clause 6.2 (Enforceable) the Security Trustee may make such
application notwithstanding any specified maturity of any deposits)
but subject always to the Funding Priority of Payments and may in its
absolute discretion estimate the amount of any liability of Funding
which is contingent or unascertained and
16
thereafter set-off such estimated amount and no amount shall be
payable by the Security Trustee to Funding unless and until all
Funding Secured Obligations have been ascertained and fully repaid or
discharged.
14. Representations and Covenants:
14.1 Funding hereby represents to the Security Trustee that it is, as of
the date hereof, the beneficial owner of all of the Funding Charged
Property free and clear of all liens, claims, charges or Encumbrances
except those specifically created by the Funding Deed of Charge and
this Second Priority Funding Deed of Charge, and undertakes that it
will retain all rights associated with ownership of the Funding
Charged Property free and clear of all liens, claims, charges,
Encumbrances except those specifically created by the Funding Deed of
Charge and this Second Priority Funding Deed of Charge or any other
Funding Transaction Document.
14.2 Funding represents that it has taken all necessary steps to enable it
to create the Security Interests in respect of the Funding Charged
Property in accordance with this Second Priority Funding Deed of
Charge and has taken no action or steps which will or may prejudice
its right, title and interest in, to and under the Funding Charged
Property.
14.3 Negative Covenants: Funding hereby undertakes that, for so long as
any Funding Secured Obligation remains outstanding, Funding shall
not, save to the extent contemplated in or provided in the Funding
Transaction Documents or unless it has obtained the prior written
consent of the Security Trustee:
(a) 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 or grant any option over all or any part of its assets,
properties or undertakings or any interest, estate, right,
title or benefit therein or agree or purport to do any of
the foregoing, other than as provided for pursuant to the
Funding Transaction Documents;
(b) create or permit to subsist any Security Interest over or in
respect of any of its assets (unless arising by operation of
law) other than as provided pursuant to the Funding Deed of
Charge and this Second Priority Deed of Charge;
14.4 Positive covenants: Funding covenants and undertakes with the
Security Trustee for the benefit of the Funding Secured Creditors
that it shall:
(a) file or procure the filing with the Registrar of Companies
pursuant to Chapter I of Part XII of the Companies Xxx 0000
of duly completed Forms 395 together with an executed
original of this Second Priority Funding Deed of Charge and
the required fee within 21 days after the date of this
Second Priority Funding Deed of Charge;
(b) [on the date hereof, for the purposes of the Jersey Security
Interests, join with the Security Trustee in giving notice
of the assignments by way of security created under or
pursuant to this Second Priority Funding Deed of Charge to
any person not being a party to this Second Priority Funding
Deed of Charge from whom Funding would have been entitled to
claim the collateral (but for the Jersey Security Interests),
and on
17
any date hereafter (to the extent only that such notice and
acknowledgement is not given under or pursuant to this
Second Priority Funding Deed of Charge) join with the
Security Trustee in giving notice of the assignments by way
of security created under this Second Priority Funding Deed
of Charge to any person from whom Funding would have been
entitled to claim the collateral (but for the Jersey
Security Interests), in each case in the form (or
substantially in the form) set out in Schedule [ ] (Form of
Notice of Assignment);]
(c) at all times execute all such further documents and do all
such further acts and things as may in the opinion of the
Security Trustee be necessary at any time or times to give
effect to the terms and conditions of this Second Priority
Funding Deed of Charge and the other Funding Transaction
Documents;
(d) at all times comply with the provisions of this Second
Priority Funding Deed of Charge and of any other Funding
Transaction Document which are expressed to be binding on it
and to observe and perform the same;
15. Terms of Appointment
15.1 By way of supplement to the Trustee Xxx 0000 and the Trustee Xxx 0000
it is expressly declared as set out in the following provisions of
this Clause 15 (Terms of Appointment).
15.2 Reliance on Information:
(a) The Security Trustee may in relation to this Second Priority
Funding Deed of Charge act on the opinion or advice of, or a
certificate or any information obtained from, any lawyer,
banker, valuer, surveyor, securities company, broker,
auctioneer, accountant or other expert in the United Kingdom
or elsewhere, whether obtained by the Security Trustee or
any Receiver, and shall not be responsible for any loss
occasioned by so acting. Any such opinion, advice,
certificate or information may be sent or obtained by
letter, facsimile reproduction or in any other form and the
Security Trustee shall not be liable for acting in good
faith on any opinion, advice, certificate or information
purporting to be so conveyed although the same shall contain
some error or shall not be authentic provided that such
error or lack of authenticity is not manifest.
(b) The Security Trustee may call for and shall be entitled to
rely upon, unless any of its officers in charge of the
administration of this Second Priority Funding Deed of
Charge shall have actual knowledge or express notice to the
contrary, a certificate signed by two directors of Funding
or a certificate of any other person in respect of every
matter and circumstance for which a certificate is expressly
provided for under this Second Priority Funding Deed of
Charge or the other Funding Transaction Documents and to
call for and rely upon, unless any of its officers in charge
of the administration of this Second Priority Funding Deed
of Charge shall have actual knowledge or express notice to
the contrary, a certificate of Funding or any other person
as to any other fact or matter prima facie within the
knowledge of Funding or such person as sufficient evidence
thereof and the Security Trustee shall not be bound
18
in any such case to call for further evidence or be
responsible for any loss, liability, costs, damages,
expenses or inconvenience that may be caused by it failing
to do so.
(c) The Security Trustee may call for and shall be entitled to
rely, unless any of its officers in charge of the
administration of this Second Priority Funding Deed of
Charge shall have actual knowledge or express notice to the
contrary, upon any document provided to it by Funding, the
Mortgages Trustee or the Cash Manager in respect of every
matter and circumstance prima facie within the knowledge of
Funding, the Mortgages Trustee or the Cash Manager and the
Security Trustee shall not be bound in any such case to call
for further evidence or be responsible for any loss,
liability, costs, damages, expenses or inconvenience that
may be caused by it failing to do so.
(d) The Security Trustee shall be entitled to act on any requests
or instructions of the Note Trustee without further enquiry
and to assume that any requests or instructions of the Note
Trustee pursuant to this Second Priority Funding Deed of
Charge or any of the other Transaction Documents are (a)
given in accordance with the provisions of this Second
Priority Funding Deed of Charge and (b) given, where
appropriate, in accordance with the directions of the
Noteholders of the relevant class, and the Security Trustee
shall not be liable to any person for any action taken or
omitted under or in connection with this Second Priority
Funding Deed of Charge in accordance with any such
instructions or requests. The Security Trustee shall be
entitled to act upon any notice, request or other
communication of any party to this Second Priority Funding
Deed of Charge for the purposes of this Second Priority
Funding Deed of Charge or any of the Transaction Documents
if such notice, request or other communication purports to
be signed or sent by or on behalf of any authorised
signatory of such party.
15.3 Powers and Duties:
(a) The Security Trustee shall not have any responsibility for
or have any duty to make any investigation in respect of or
in any way be liable whatsoever for the nature, status,
creditworthiness or solvency of Funding.
(b) The Security Trustee shall not be responsible for the scope
or accuracy of any recitals, statements, warranty,
representation or covenant of any party (other than the
Security Trustee) contained herein or in any other Funding
Transaction Document or any other document entered into in
connection therewith and shall assume the accuracy and
correctness thereof.
(c) The Security Trustee shall (save as expressly otherwise
provided herein or in the other Transaction Documents) as
regards all trusts, powers, authorities and discretions
vested in it by this Second Priority Funding Deed of Charge,
the other Transaction Documents or by operation of law, have
absolute and uncontrolled discretion as to the exercise or
non-exercise thereof and the Security Trustee shall not be
responsible for any liability that may result from the
exercise or non-exercise thereof but whenever the Security
Trustee is under the provisions of this Second
19
Priority Funding Deed of Charge bound to act at the request
or direction any party, the Security Trustee shall
nevertheless not be so bound unless first indemnified and/or
provided with security to its satisfaction against all
actions, proceedings, claims and demands to which it may
render itself liable and all costs, charges, damages,
expenses and liabilities which it may incur by so doing.
(d) The Security Trustee may accept without enquiry, requisition
or objection such title as Funding may have to the Funding
Charged Property or any part thereof from time to time and
shall not be required to investigate or make any enquiry
into or be liable for any defect or failure in the right or
title of Funding to the Funding Charged Property or any part
thereof from time to time whether or not any defect was
known to the Security Trustee or might have been discovered
upon examination, inquiry or investigation and whether or
not capable of remedy.
(e) The Security Trustee shall not be responsible for exercising
the rights of any of the parties under the Transaction
Documents or considering the basis upon which the approvals
or consents are granted by any of the parties under the
Transaction Documents.
(f) The Security Trustee shall not be bound to give notice to any
person of the execution of this Second Priority Funding Deed
of Charge nor shall it have any duty to make any
investigation in respect of or in any way be liable
whatsoever for the registration, filing, protection or
perfection of any security constituted by this Second
Priority Funding Deed of Charge or the other Funding
Transaction Documents relating to the Funding Charged
Property or the priority of the security thereby and shall
not be liable for any failure, omission or defect in
perfecting, protecting, procuring the registration of or
further assuring the security created or purported to be
created by or pursuant to this Second Priority Funding Deed
of Charge or other documents entered into in connection
herewith.
(g) The Security Trustee shall not have any duty to make any
investigation in respect of or in any way be liable
whatsoever for the failure to call for delivery of documents
of title to or require any transfers, legal mortgages,
charges or other further assurances in relation to any of
the assets the subject matter of this Funding Deed or Charge
or any other document.
(h) The Security Trustee shall be under no obligation to monitor
or supervise and shall not have any duty to make any
investigation in respect of or in any way be liable
whatsoever for the performance or observance by Funding or
any other person of the provisions of this Second Priority
Funding Deed of Charge or any other Funding Transaction
Document and shall be entitled to assume that each person is
properly performing and complying with its obligations.
(i) The Security Trustee shall not have any responsibility for
or have any duty to make any investigation in respect of or
in any way be liable whatsoever for the existence, accuracy
or sufficiency of any legal or other opinions, searches,
reports, certificates,
20
valuations or investigations delivered or obtained or
required to be delivered or obtained at any time in
connection with the Funding Charged Property.
(j) The Security Trustee shall not be liable or responsible for
any loss, cost, damage, expense or inconvenience which may
result from anything done or omitted to be done by it under
this Second Priority Funding Deed of Charge or under any of
the other Funding Transaction Documents save where the same
arises as a result of the Security Trustee's fraud, wilful
default or gross negligence.
(k) The Security Trustee shall have no responsibility whatsoever
to any Funding Secured Creditor as regards any deficiency
which might arise because the Security Trustee is subject to
any Tax in respect of the Funding Charged Property or any
part thereof or any income therefrom or any proceeds thereof
or is required by law to make any withholding or deduction
from any payment to any Funding Secured Creditor.
(l) The Security Trustee will not be responsible or liable for
any inadequacy or unfitness of any Funding Charged Property
as security or any decline in value or any loss realised
upon any disposition of the Funding Charged Property.
(m) The Security Trustee shall not be obliged to perfect the
legal title to any Mortgage in its name or any of the
Related Security if, in its opinion, such perfection would
or might result in the Security Trustee becoming liable to
or incurring any obligation to Funding under a Mortgage or
any of the Related Security and/or in its opinion, there is
or would be insufficient cash to discharge, in accordance
with the provisions of this Second Priority Funding Deed of
Charge such liabilities or obligations as and when they
arise.
(n) Notwithstanding the generality of the above, the Security
Trustee shall not be responsible for the execution,
legality, effectiveness, adequacy, genuineness, validity,
enforceability or suitability of any of the Transaction
Documents or any of the documents relating to the Mortgage
Loans or Mortgages or other documents entered into in
connection therewith or any security or the priority thereof
constituted or purported to be constituted thereby or
pursuant thereto nor shall it be responsible or liable to
any person because of any invalidity of any provisions of
such documents or the unenforceability thereof, whether
arising from statute, law or decision of any court and
(without prejudice to the generality of the foregoing) the
Security Trustee shall not have any responsibility for, or
have any duty to make any investigation in respect of or in
any way be liable whatsoever for:
(i) the nature, status, creditworthiness or solvency of
Funding or any other person or entity who has at any
time provided any security or support whether by way
of guarantee, charge or otherwise in respect of any
advance made to Funding;
(ii) the title, ownership, value, sufficiency or existence
of any Mortgaged Property;
21
(iii) the registration, filing, protection or perfection of
any Mortgage Loans or Mortgages or the priority of
the security created thereby whether in respect of
any initial advance or any subsequent advance or any
other sums or liabilities;
(iv) the scope or accuracy of any representation,
warranties or statements made by or on behalf of
Funding in any application for any advance or in any
mortgage or charge or any document entered into in
connection therewith;
(v) the performance or observance by Funding or any other
person of any provisions of any Mortgage Loans or
Mortgages or in any document entered into in
connection therewith or the fulfilment or
satisfaction of any conditions contained therein or
relating thereto or as to the existence or
occurrence at any time of any default, event of
default or similar event contained therein or waiver
or consent which has at any time been granted in
relation to any of the foregoing;
(vi) the existence, accuracy or sufficiency of any legal
or other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained
or required to be delivered or obtained at any time
in connection with Mortgage Loans or Mortgages;
(vii) the title of the Seller or the Mortgages Trustee to
Mortgage Loans or Mortgages;
(viii) the suitability, adequacy or sufficiency of any
Lending Criteria and any arrears and enforcement
procedures operated by the Seller or compliance
therewith or compliance with any applicable criteria
for any Further Advances or the legality or
recoverability or enforceability thereof or the
priority of the security in relation thereto;
(ix) the compliance of the provisions and contents of and
the manner and formalities applicable to the
execution of the Mortgage Loans or Mortgages and any
documents connected therewith or the making of any
advance intended to be secured thereby, with the
relevant mortgage indemnity policies and with any
applicable laws or regulations (including without
prejudice to the generality of the foregoing, the
Consumer Credit Act 1974);
(x) the failure by the Seller to obtain or comply with
any licence, consent or other authority in
connection with the origination, sale or purchase of
any of the Mortgage Loans or Mortgages or the making
of any advances in connection therewith or the
failure to effect or procure registration of or to
give notice to any person in relation to or
otherwise protect the security created or purported
to be created by or pursuant to any of the Mortgage
Loans or Mortgages or other documents entered into
in connection therewith;
22
(xi) the failure to call for delivery of documents of
title to or require any transfers, legal mortgages,
charges or other further assurances in relation to
any of the assets the subject matter of any of the
Funding Transaction Documents or any other document;
(xii) any accounts, books, records or files maintained by
the Seller, the Administrator or any other person in
respect of any of the Mortgage Loans or Mortgages;
or
(xiii) any other matter or thing relating to or in any way
connected with any Mortgage Loans or Mortgages or
any document entered into in connection therewith
whether or not similar to the foregoing.
(o) The Security Trustee shall not be responsible for, nor shall
it have any liability with respect to, any loss or theft of
the Funding Charged Property and, without prejudice to any
provisions relating to insurance under the Funding
Transaction Documents, the Security Trustee shall not be
under any obligation to insure any of the Funding Charged
Property or any deeds or documents of title or other
evidence in respect of the Security or to require any other
person to maintain such insurance and the Security Trustee
shall not be responsible for any loss, expense or liability
which may be suffered as a result of the lack of or
inadequacy of such insurance.
(p) The Security Trustee shall not be responsible for any
liability occasioned to the Funding Charged Property however
caused, whether by an act or omission of Funding or any
other party to the Transaction Documents or any other person
(including any bank, broker, depositary, warehouseman or
other intermediary or any clearing system or operator
thereof) or otherwise irrespective of whether the Funding
Charged Property is held by or to the order of any such
persons, unless such loss is caused by the fraud, wilful
default or gross negligence of the Security Trustee.
(q) The Security Trustee shall not be responsible for the
receipt or application by Funding of the proceeds of any
Intercompany Loan or any Start-up Loan.
(r) The Security Trustee shall have full power to determine all
questions and doubts arising in relation to any of the
provisions of this Second Priority Funding Deed of Charge
and the other Funding Transaction Documents and every such
determination, whether made upon a question actually raised
or implied in the acts or proceedings of the Security
Trustee, shall be conclusive and shall bind the Security
Trustee and the Funding Secured Creditors.
(s) The Security Trustee may determine whether or not a default
in the performance by Funding of any obligation under the
provisions of this Second Priority Funding Deed of Charge or
any other Funding Transaction Document is capable of remedy
and/or whether the same is materially prejudicial to the
interests of the Funding Secured Creditors or any of them
and if the Security Trustee shall certify that any such
default is, in its opinion, not capable of remedy and/or
materially prejudicial to the interests
23
of the Funding Secured Creditors or any of them, such
certificate shall be conclusive and binding upon the Funding
Secured Creditors.
(t) The Security Trustee shall be entitled to assume for the
purposes of exercising any power, trust, authority, duty or
discretion under or in relation to these presents or any of
the other Transaction Documents, that such exercise will not
be materially prejudicial to the interests of the
Noteholders if the Rating Agencies have confirmed in writing
that the then current ratings of the Notes would not be
adversely affected by such exercise.
(u) Unless provided otherwise in any Transaction Document, where
an Intercompany Loan Event of Default or a Completion Event
refers to materiality or like terminology, any determination
of materiality or like terminology or the absence thereof
will be in the opinion of Funding as certified to the
Security Trustee, which certificate shall be conclusive
evidence of the occurrence of (or absence of) such
circumstances.
(v) The Security Trustee shall have no liability whatsoever for
any loss, cost, damages or expenses directly or indirectly
suffered or incurred by any person as a result of the
delivery by the Security Trustee to Funding or any other
party to the Transaction Documents of a certificate as to
material prejudice or as to no material prejudice pursuant
to the Conditions or any Transaction Document and any such
certificate shall be binding on the Funding Secured
Creditors.
(w) The Security Trustee may, in the conduct of its trust
business, instead of acting personally, employ and pay an
agent, whether or not a lawyer or other professional person,
to transact or conduct, or concur in transacting or
conducting, any business and to do or concur in doing all
acts required to be done by the Security Trustee (including
the receipt and payment of monies). The Security Trustee
shall not be responsible for any misconduct or omission on
the part of any person appointed by it or be bound to
supervise the proceedings or acts of any such persons and
shall not be responsible for any loss, costs, liability or
expenses incurred by any misconduct or default on the part
of any such person, provided that the Security Trustee has
exercised reasonable care in selecting any such agent.
(x) Any trustee of this Second Priority Funding Deed of Charge
being a lawyer, accountant, broker or other person engaged
in any profession or business shall be entitled to charge
and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in
connection with the trusts of this deed and the Funding
Transaction Documents and also his charges in addition to
disbursements for all other work and business done and all
time spent by him or his firm in connection with matters
arising in connection with this Second Priority Funding Deed
of Charge and the Funding Transaction Documents, including
matters which might or should have been attended to in
person by a trustee not being a lawyer, accountant, broker
or other professional person.
24
(y) The Security Trustee may, in the execution of all or any of
the trusts, powers, authorities and discretions vested in it
by this Second Priority Funding Deed of Charge or any of the
other Funding Transaction Documents, act by responsible
officers or a responsible officer for the time being of the
Security Trustee. The Security Trustee may also, whenever it
thinks expedient in the interests of the Funding Secured
Creditors, whether by power of attorney or otherwise,
delegate to any person or persons all or any of the trusts,
rights, powers, duties, authorities and discretions vested
in it by this Second Priority Funding Deed of Charge or any
of the other Funding Transaction Documents. Any such
delegation may be made upon such terms and conditions and
subject to such regulations (including power to
sub-delegate) as the Security Trustee may think fit in the
interests of the Funding Secured Creditors, provided that
the Security Trustee shall have exercised reasonable care in
the selection of such delegate and, where a power to
sub-delegate has been given, shall oblige the delegate to
exercise reasonable care in the selection of any
sub-delegate. The Security Trustee shall not be bound to
supervise the proceedings of, or be responsible for any
loss, costs, liability or expenses incurred by any
misconduct or default on the part of, such delegate or
sub-delegate. The Security Trustee shall give prompt notice
to Funding of the appointment of any delegate as aforesaid
and shall procure that any delegate shall also give prompt
notice of the appointment of any sub-delegate to Funding.
(z) Where it is necessary or desirable for any purpose in
connection with this Second Priority Funding Deed of Charge
to convert any sum from one currency to another it shall
(unless otherwise provided by this Second Priority Funding
Deed of Charge or required by law) be converted at such rate
or rates in accordance with such method and as at such date
for the determination of such rate of exchange, as may be
specified by the Security Trustee in its absolute discretion
but having regard to current rates of exchange if available
and the Security Trustee shall not be liable for any loss
occasioned by the said conversion and any rate, method and
date so specified shall be binding on Funding and the
Funding Secured Creditors.
(aa) Any consent given by the Security Trustee for the purposes
of this Second Priority Funding Deed of Charge or any of the
other Transaction Documents may be given on such terms and
subject to such conditions (if any) as the Security Trustee
thinks fit and may be given retrospectively.
(bb) The Security Trustee shall not be liable for any error of
judgment made in good faith by any officer or employee of
the Security Trustee assigned by the Security Trustee to
administer its corporate trust matters unless the Security
Trustee was grossly negligent in ascertaining the pertinent
facts.
(cc) The Security Trustee shall not (unless required by law or
ordered to do so by a court of competent jurisdiction) be
required to disclose to any Funding Secured Creditor or
other person any information made available to the Security
Trustee by Funding or any other person in connection with
the trusts of this Second Priority Funding Deed of Charge or
the Funding Transaction Documents and no Funding Secured
Creditor
25
or other person shall be entitled to take any action to
obtain from the Security Trustee any such information.
(dd) Notwithstanding anything else in this Second Priority
Funding Deed of Charge or the other Funding Transaction
Documents, the Security Trustee may refrain from doing
anything which would or might in its opinion be contrary to
any law of any jurisdiction or any directive or regulation
of any governmental agency or which would or might otherwise
render it liable to any person and may do anything which is,
in its opinion, necessary to comply with any such law,
directive or regulation.
(ee) The powers conferred by this Second Priority Funding Deed of
Charge upon the Security Trustee or any Receiver shall be in
addition to and not in substitution for any powers which may
from time to time be conferred on the Security Trustee or
any such Receiver by statute or under common law.
(ff) The Security Trustee has no duties or responsibilities
except those expressly set out in this Second Priority
Funding Deed of Charge or in the Funding Transaction
Documents.
(gg) The Security Trustee shall not be responsible for the
maintenance of the rating of the Notes.
15.4 No Financial Liability: Notwithstanding anything else herein
contained, the Security Trustee may refrain from taking any action or
exercising any right, power, authority or discretion vested in it
under this Second Priority Funding Deed of Charge, any other
Transaction Document, any Funding Charged Property or any other
agreement relating to the transactions herein or therein contemplated
until it has been indemnified and/or secured to its satisfaction
against and all liabilities which might be brought, made or conferred
against or suffered, incurred or sustained by it as a result.
Notwithstanding any other provision of this Second Priority Funding
Deed of Charge or of any other Transaction Document, nothing shall
require the Security Trustee to risk its own funds or otherwise incur
any financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers or otherwise in
connection with this Second Priority Funding Deed of Charge or any
other Funding Transaction Document (including, without limitation,
forming any opinion or employing any legal, financial or other
adviser), if it shall believe that repayment of such funds or
adequate indemnity against such risk or liability is not assured to
it. Further, without prejudice to the right of indemnity by law given
to trustees, Funding hereby covenants further, to reimburse, pay or
discharge (on a full indemnity basis) on demand the Security Trustee
and every attorney, receiver, manager, agent, delegate or other
person appointed by it under this Second Priority Funding Deed of
Charge from and against all liabilities, losses, damages, costs,
expenses, actions, proceedings, claims and demands (including without
limitation legal fees and any applicable value added tax or similar
tax) incurred by or made against it or him in the execution or
purported execution of the trusts of this Second Priority Funding
Deed of Charge or of its or his powers or in respect of any matter or
thing done or omitted in any way relating to this Second Priority
Funding Deed of Charge or any of the other Funding Transaction
Documents except such as may arise from the gross negligence or
wilful misconduct or fraud of any such indemnified person.
26
15.5 Assumption of No Default:
(a) The Security Trustee shall not be bound to ascertain whether
any Intercompany Loan Event of Default or Potential
Intercompany Loan Event of Default has happened and, until
it shall have actual knowledge or express notice to the
contrary, the Security Trustee shall be entitled to assume
that no such Intercompany Loan Event of Default or Potential
Intercompany Loan Event of Default has happened and that
Funding is observing and performing all the obligations on
its part contained in each Intercompany Loan Agreement and
no event has happened as a consequence of which any
Intercompany Loan may become repayable.
(b) The Security Trustee shall not be bound to ascertain whether
any Completion Event or any failure by the Seller to comply
with any of its obligations under the Mortgage Sale
Agreement or any event which with the giving of notice or
expiry of any grace period or certification as specified in
respect of such Completion Event or Seller failure of its
obligations would constitute the same has happened and,
until it shall receive express notice to the contrary from
any party to the Transaction Documents, the Security Trustee
shall be entitled to assume that no such Completion Event or
Seller failure of its obligations or such other event as
described above has happened and that Funding, the
Administrator or the Seller (as the case may be) is
observing and performing all of their respective obligations
contained in each of the Transaction Documents to which they
are a party.
(c) The Security Trustee shall not be bound to ascertain whether
any material breach of any of the Representations and
Warranties referred to in Clause 8 of the Mortgage Sale
Agreement or any event which with the giving of notice or
expiry of any grace period or certification as specified in
such representation and warranties would constitute the same
has happened and, until it shall receive express notice to
the contrary from any party to the Transaction Documents,
the Security Trustee shall be entitled to assume that no
such breach or such other event as described above has
happened and that the Seller is observing and performing its
obligations contained in the Mortgage Sale Agreement.
(d) The Security Trustee shall not be bound to ascertain whether
any termination event under the Administration Agreement or
any event which with the giving of notice or expiry of any
grace period or certification as specified in respect of
such termination event would constitute the same has
happened and, until it shall receive express notice to the
contrary pursuant to Clause 19.5 of the Administration
Agreement, the Security Trustee shall be entitled to assume
that no such termination event under the Administration
Agreement or such other event as described above has
happened and that the Administrator is observing and
performing all of its obligations contained in each of the
Transaction Documents to which it is a party.
(e) The Security Trustee shall not be bound to ascertain whether
any Cash Manager Termination Event or any event which with
the giving of notice or expiry of any grace period or
certification as specified in such Cash Manager Termination
Event would constitute the same has happened and, until it
shall receive express notice to
27
the contrary pursuant to Clause 12.4 of the Cash Management
Agreement, the Security Trustee shall be entitled to assume
that no such Cash Manager Termination Event or such other
event as described above has happened and that the Cash
Manager is observing and performing its obligations
contained in the Cash Management Agreement.
(f) The Security Trustee shall not be bound to ascertain whether
any Termination Event under the Bank Account Agreement or
the Funding (First Issuer) Bank Account Agreement or any
event which with the giving of notice or expiry of any grace
period or certification as specified in such Bank Account
Agreement or such Funding (First Issuer) Bank Account
Agreement, as applicable, would constitute the same has
happened and, until it shall receive express notice to the
contrary pursuant to Clause 8.3 of the Bank Account
Agreement or the Funding (First Issuer) Bank Account
Agreement, as applicable, the Security Trustee shall be
entitled to assume that no such termination event under the
Bank Account Agreement or the Funding (First Issuer) Bank
Account Agreement or such other event as described above has
happened and that the relevant Account Bank is observing and
performing its obligations contained in the Bank Account
Agreement or the Funding (First Issuer) Bank Account
Agreement, as applicable.
(g) The Security Trustee shall not be bound to ascertain whether
any Flexible Mortgages Loans or part thereof is
unenforceable and/or does not fall within the first ranking
charge by way of legal mortgage over the relevant Mortgaged
Property has happened and, until it shall receive express
notice to the contrary from any party to the Transaction
Documents, the Security Trustee shall be entitled to assume
that no such event has happened.
15.6 Commercial Transactions: The Security Trustee shall not, and no
director, officer or employee of any corporation being a Security
Trustee hereof shall by reason of the fiduciary position of the
Security Trustee be in any way precluded from making any commercial
contracts or entering into any commercial transactions with any party
to the Funding Transaction Documents, whether directly or through any
subsidiary or associated company, or from accepting the trusteeship
of any other debenture stock, debentures or securities of any party
to the Funding Transaction Documents, and without prejudice to the
generality of these provisions, it is expressly declared that such
contracts and transactions include any contract or transaction in
relation to the placing, underwriting, purchasing, subscribing for or
dealing with or lending monies upon or making payments in respect of
or any stock, shares, debenture stock, debentures or other securities
of any party to the Funding Transaction Documents or any contract of
banking or insurance of any party to the Funding Transaction
Documents and neither the Security Trustee nor any such director,
officer or employee shall be accountable to any Funding Secured
Creditor or to any party to the Funding Transaction Documents for any
profit, fees, commissions, interest, discounts or share of brokerage
earned, arising or resulting from any such contracts or transactions,
and the Security Trustee and any such director, officer or employee
shall also be at liberty to retain the same without accounting
therefor.
28
15.7 Trustee Liable for Negligence: None of the provisions of this Second
Priority Funding Deed of Charge shall, in any case in which the
Security Trustee has failed to show the degree of care and diligence
required of it as security trustee under this Second Priority Funding
Deed of Charge, having regard to the provisions of this Second
Priority Funding Deed of Charge conferring on the Security Trustee
any powers, authorities or discretions, relieve or indemnify the
Security Trustee against any liabilities which by virtue of any rule
of law would otherwise attach to it in respect of any gross
negligence, default, breach of duty or breach of trust of which it
may be guilty in relation to its duties under this Second Priority
Funding Deed of Charge.
15.8 Delegation of Certain Functions to Authorised Third Party: Without
prejudice to the provisions of this Second Priority Funding Deed of
Charge, references to the Security Trustee taking action in
connection with any duty of the Seller or Administrator under any
Transaction Document shall be read subject to clause 25 and Schedule
4 of the Administration Agreement.
16. Remuneration of the Security Trustee
16.1 Remuneration: Funding shall (subject as hereinafter provided) pay to
the Security Trustee an annual fee of such amount as shall from time
to time be agreed by Funding and the Security Trustee. Such
remuneration shall be payable on Payment Dates subject to and in
accordance with the Funding Pre-Enforcement Revenue Priority of
Payments or, as the case may be, the Funding Post-Enforcement
Priority of Payments. Such remuneration shall accrue from day to day
and be payable up to and including the date when all of the Funding
Secured Obligations have been paid or discharged and the Security
Trustee has released, reassigned and/or discharged the Funding
Charged Property as provided in Clause 4 (Release of Funding Charged
Property).
16.2 Additional Remuneration: In the event of the occurrence of an
Intercompany Loan Event of Default or a Potential Intercompany Loan
Event of Default or the Security Trustee giving an Intercompany Loan
Enforcement Notice or the Security Trustee using its reasonable
endeavours to appoint and maintain an Authorised Third Party or
considering it expedient or necessary or being requested by Funding
to undertake duties which the Security Trustee and Funding agree to
be of an exceptional nature or otherwise outside the scope of the
normal duties of the Security Trustee under this Second Priority
Funding Deed of Charge, Funding shall pay to the Security Trustee
such additional remuneration as shall be agreed between them. In the
event of the Security Trustee failing to agree upon whether such
duties shall be of an exceptional nature or otherwise outside the
scope of the normal duties of the Security Trustee under this Second
Priority Funding Deed of Charge, or upon such additional
remuneration, then such matter shall be determined by a merchant bank
(acting as an expert and not as an arbitrator) selected by the
Security Trustee and approved by Funding or, failing such approval,
nominated (on the application of the Security Trustee) by the
President for the time being of the Law Society of England and Wales
(the expense involved in such nomination and the fees of such
merchant bank being payable by Funding) and the determination of any
such merchant bank shall be final and binding upon the Security
Trustee and Funding.
29
16.3 Expenses: Funding shall on written request, pay all other costs,
charges and expenses (including legal and travelling expenses and the
cost of using its reasonable endeavours to appoint and maintain an
Authorised Third Party) (against production of invoices) which the
Security Trustee or any persons appointed by it to whom any trust,
power, authority or discretion may be delegated by it in relation to
this Second Priority Funding Deed of Charge may properly incur.
including but not limited to:
(a) the negotiation, preparation and execution of, the exercise
of its powers and the performance of its duties under this
Second Priority Funding Deed of Charge;
(b) the preservation or attempted preservation of any of the
charges contained in or granted pursuant to this Second
Priority Funding Deed of Charge; and
(c) any other action taken by or on behalf of the Security
Trustee with a view to the recovery of the Funding Secured
Obligations or for enforcing the security constituted in
this Second Priority Funding Deed of Charge.
16.4 Indemnity: Funding shall indemnify the Security Trustee and any
Receiver in respect of all proceedings, claims, actions, demands,
losses, costs, charges, expenses and liabilities to which it (or any
person appointed by it to whom any trust, power, authority or
discretion may be delegated by it in the execution or purported
execution of the trusts, powers, authorities or discretions vested in
it by or pursuant to this Second Priority Funding Deed of Charge and
any of the other Funding Transaction Documents to which the Security
Trustee is a party) may be or become liable or which may be properly
incurred by it (or any such person as aforesaid) in the execution or
purported execution of any of its trusts, powers, authorities and
discretions hereunder or its functions under any such appointment or
in respect of any other matter or thing done or omitted in any way
relating to this Second Priority Funding Deed of Charge and any of
the other Funding Transaction Documents to which the Security Trustee
is a party save where the same arises as a result of the fraud, gross
negligence or wilful default by the Security Trustee or, as the case
may be, such Receiver or any of their officers or employees or the
breach by the Security Trustee of the terms of this Second Priority
Funding Deed of Charge.
16.5 Stamp Duties: Funding shall, to the extent permitted by applicable
United Kingdom law, pay all stamp duties and other duties or taxes of
a similar nature, including for the avoidance of doubt any duty
levied under the Xxxxx Xxx 0000 as amended and supplemented, (if any)
payable on or arising out of or in consequence of:
(a) the creation of the security constituted by or pursuant to
this Second Priority Funding Deed of Charge; and
(b) the execution and delivery of this Second Priority Funding
Deed of Charge and documents executed pursuant hereto and
the other Funding Transaction Documents (except where the
obligation to pay all stamp duties and other duties or taxes
of a similar nature is expressed to be the obligation of a
person other than Funding).
30
16.6 VAT: All sums payable by Funding under this Second Priority Funding
Deed of Charge are deemed to be exclusive of any amount in respect of
VAT. If, pursuant to any provision of this Second Priority Funding
Deed of Charge, the Security Trustee or the Receiver of Funding makes
any taxable or deemed taxable supply to Funding, then Funding shall
pay to the Security Trustee or the Receiver of Funding (as the case
may be) (in addition to the consideration for the supply) an amount
equal to the VAT charged in respect of such taxable or deemed taxable
supply against production of a valid VAT invoice.
16.7 Interest: Subject as provided in Clause 16.8 (Payment), all sums
payable by Funding under this Clause 16 (Remuneration of the Security
Trustee) shall be payable on demand or, in the case of any
remuneration payable under Clause 16.1 (Remuneration) on the due date
specified therein and shall carry interest at the rate per annum,
which is one per cent. per annum above the base rate from time to
time of the National Westminster Bank Plc from the date on which they
were paid, charged or incurred by the Security Trustee or any
Receiver or, in the case of remuneration, the due date for payment
thereof, to the date of actual payment.
16.8 Payment: Notwithstanding the other provisions of this Second Priority
Funding Deed of Charge, any amount owing by Funding pursuant to this
Clause 16 (Remuneration of the Security Trustee) shall only be
payable by Funding subject to and in accordance with the Funding
Pre-Enforcement Revenue Priority of Payments or, as the case may be,
the Funding Post-Enforcement Priority of Payments.
16.9 Survival: Unless otherwise specifically stated in any discharge of
this Second Priority Funding Deed of Charge, the provisions of this
Clause 16 (Remuneration of the Security Trustee) shall continue in
full force and effect notwithstanding such discharge.
16.10 [Jersey Law Waivers:
(a) Any right which at any time Funding has under the existing
or future laws of Jersey whether by virtue of the droit de
discussion or otherwise to require that recourse be had to
the assets of any other person before any claim is enforced
against Funding in respect of the obligations hereby assumed
by Funding is hereby abandoned and waived.
(b) Funding undertakes that if at any time any person
indemnified sues Funding in respect of any such obligations
and the person in respect of whose obligations the indemnity
is given is not sued also, Funding shall not claim that such
person be made a party to the proceedings and Funding agrees
to be bound by this indemnity whether or not it is made a
party to legal proceedings for the recovery of the amount
due or owing to the person indemnified, as aforesaid, by the
person in respect of whose obligations the indemnity is
given and whether the formalities required by any law of
Jersey whether existing or future in regard to the rights or
obligations of securities shall or shall not have been
observed.
(c) Any right which Funding may have under the existing or
future laws of Jersey whether by virtue of the droit de
division or otherwise to require that any liability
31
under this indemnity be divided or apportioned with any other
person or reduced in any manner whatsoever is hereby
abandoned and waived. ]
17. Appointment, Removal and Retirement of Security Trustee
17.1 Power of Funding: The power of appointing a new Security Trustee and
removing the Security Trustee or any new Security Trustee shall be
vested in Funding but such appointment or removal must be approved by
the Note Trustee, after consultation with each of the Funding Secured
Creditors (such approval not to be unreasonably withheld or delayed).
A trust corporation may be appointed sole trustee hereof but subject
thereto there shall be at least two trustees hereof, one at least of
which shall be a trust corporation. Any appointment of a new Security
Trustee and any retirement of an existing Security Trustee hereof
shall as soon as practicable thereafter be notified by Funding to the
Funding Secured Creditors.
17.2 U.S. Investment Company Act: Any new Security Trustee must (i) meet
the requirements of section 26(a)(1) of the U.S. Investment Company
Act of 1940; (ii) not be an affiliate (as defined in Rule 405 of the
U.S. Securities Act of 1933, as amended) of any relevant Issuer or of
any person involved in the organisation or operation of any relevant
Issuer; (iii) not offer or provide credit or credit enhancement to
any relevant Issuer; and (iv) execute an agreement or instrument
concerning the Notes containing provisions to the effect set forth in
section 26(a)(3) of the U.S. Investment Company Act of 1940.
17.3 Powers of Security Trustee to appoint: Notwithstanding the provisions
of Clause 17.1 (Power of Funding), the Security Trustee may (as
attorney for Funding) upon giving prior notice to Funding but without
the consent of Funding or the Funding Secured Creditors appoint any
person established or resident in any jurisdiction (whether a trust
corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Security Trustee:
(a) if the Security Trustee considers such appointment to be in
the interests of the Funding Secured Creditors; or
(b) for the purposes of conforming to any legal requirement,
restriction or condition in any jurisdiction in which any
particular act or acts are to be performed or any Funding
Charged Property is or is to be located; or
(c) for the purposes of obtaining a judgment in any jurisdiction
or the enforcement in any jurisdiction either of a judgment
already obtained or of the provisions of this Second
Priority Funding Deed of Charge or any of the other Funding
Transaction Documents to which the Security Trustee is a
party or obligations arising pursuant thereto or of any of
the security constituted by or pursuant to this Second
Priority Funding Deed of Charge.
Funding hereby irrevocably appoints the Security Trustee to be its
attorney in its name and on its behalf to execute any such instrument
of appointment. Such a person shall (subject always to the provisions
of this Second Priority Funding Deed of Charge and any other Funding
Transaction Document to which the Security Trustee is a party) have
such trusts, powers, authorities and discretions (not exceeding those
conferred on the Security Trustee by this
32
Second Priority Funding Deed of Charge or any of the other Funding
Transaction Documents to which the Security Trustee is a party) and
such duties and obligations as shall be conferred or imposed on it by
the instrument of appointment. The Security Trustee shall have power
in like manner to remove any such person. Such proper remuneration as
the Security Trustee may pay to any such person, together with any
attributable costs, charges and expenses incurred by it in performing
its function as such separate trustee or co-trustee, shall for the
purposes of this Second Priority Funding Deed of Charge be treated as
costs, charges and expenses incurred by the Security Trustee.
17.4 Multiple Trustees: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise
all the trusts, powers, authorities and discretions vested by this
Second Priority Funding Deed of Charge and any of the other Funding
Transaction Documents in the Security Trustee generally.
17.5 Retirement of Security Trustee: Subject as provided in Clause 17.6
(Retirement or Removal not Effective), any Security Trustee for the
time being of this Second Priority Funding Deed of Charge may retire
at any time upon giving not less than three calendar months' prior
notice in writing to Funding without assigning any reason therefor
and without being responsible for any costs resulting from such
retirement.
17.6 Retirement or Removal not Effective: The retirement or removal of any
Security Trustee shall not become effective unless (1) there remains
at least one trustee hereof being a trust corporation in office upon
such retirement or removal and (2) there remains at least one trustee
of each Issuer Trust Deed and Issuer Deed of Charge being the same
trust corporation. Funding covenants that, in the event of a trustee
(being a sole trustee or the only trust corporation) giving notice
under Clause 17.5 (Retirement of Security Trustee) or being removed
as referred to in Clause 17.1 (Power of Funding) it shall use its
best endeavours to procure a new Security Trustee of this Deed (being
a trust corporation) to be appointed as soon as reasonably
practicable thereafter (for the avoidance of doubt, in the same terms
as this Second Priority Funding Deed of Charge). If within 60 days of
having given notice of its intention to retire, Funding has failed to
appoint a replacement Security Trustee, the outgoing Security Trustee
will be entitled to appoint its successor (provided that the Rating
Agencies confirm that the then current ratings of the Notes shall not
be either downgraded, reviewed or withdrawn as a result of such
appointment).
17.7 Security Trustee and Note Trustee: If the Security Trustee retires or
is removed in accordance with the provisions of this Clause 17
(Appointment, Removal and Retirement of Security Trustee) then the
Note Trustee shall retire at the same time in accordance with the
provisions of the First Issuer Trust Deed and each other Issuer Trust
Deed. If the Note Trustee retires or is removed in accordance with
the provisions of the First Issuer Trust Deed and each other Issuer
Trust Deed, then the Security Trustee shall retire at the same time
in accordance with the provisions of this Clause 17 (Appointment,
Removal and Retirement of Security Trustee). In either case the
successor Security Trustee and the successor Note Trustee shall be
the same person or persons.
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17.8 Merger: Any corporation into which the Security Trustee may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Security Trustee shall be a party, or any corporation succeeding to
all or substantially all the corporate trust business of the Security
Trustee, shall be the successor of the Security Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible
under this Clause, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.
18. Miscellaneous Provisions
18.1 Evidence of Indebtedness: In any action, proceedings or claim
relating to this Second Priority Funding Deed of Charge or the
charges contained in this Second Priority Funding Deed of Charge, a
statement as to any amount due to any Funding Secured Creditor or of
the Funding Secured Obligations or any part thereof or a statement of
any amounts which have been notified to the Security Trustee as being
amounts due to any Funding Secured Creditor which is certified as
being correct by an officer of the Security Trustee or an officer of
the relevant Funding Secured Creditor shall, save in the case of
manifest error, be conclusive evidence that such amount is in fact
due and payable.
18.2 Liability: All the liabilities and obligations of Funding under or by
virtue of this Second Priority Funding Deed of Charge shall not be
impaired by:
(a) any failure of this Second Priority Funding Deed of Charge
to be legal, valid, binding and enforceable as regards
Funding whether as a result of a lack of corporate powers or
of directors' authority, defective execution or for any
other reason whatsoever;
(b) any giving of time, forbearance, indulgence or waiver as
regards Funding;
(c) a discharge or release of Funding; or
(d) any other matter or event whatsoever whether similar to the
foregoing or not which might have the effect of impairing
all or any of its liabilities or obligations except proper
and valid payment or discharge of all Funding Secured
Obligations and amounts whatsoever which this Second
Priority Funding Deed of Charge provides are to be paid by
Funding or an absolute discharge or release of Funding
signed by the Funding Secured Creditors and the Security
Trustee.
19. Rights cumulative
The respective rights of the Security Trustee, the Mortgages Trustee,
Funding and any Receiver to this Second Priority Funding Deed of
Charge are cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Security Trustee, the
Mortgages Trustee, Funding or any Receiver to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other
right. The remedies in this Deed are cumulative and not exclusive of
any remedies provided by law.
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20. Corporate Obligations
20.1 Corporate Obligations: To the extent permitted by law, no recourse
under any obligation, covenant, or agreement of any person contained
in this Second Priority Funding Deed of Charge shall be had against
any shareholder, officer or director of such person as such, by the
enforcement of any assessment or by any legal proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood
that this Agreement is a corporate obligation of each person
expressed to be a party hereto and no personal liability shall attach
to or be incurred by the shareholders, officers, agents or directors
of such person as such, or any of them, under or by reason of any of
the obligations, covenants or agreements of such person contained in
this Second Priority Funding Deed of Charge, or implied therefrom,
and that any and all personal liability for breaches by such person
of any of such obligations, covenants or agreements, either under any
applicable law or by statute or constitution, of every such
shareholder, officer, agent or director is hereby expressly waived by
each person expressed to be a party hereto as a condition of and
consideration for the execution of this Second Priority Funding Deed
of Charge.
21. Notices
Any notices or other communication or document to be given or
delivered pursuant to this Second Priority Funding Deed of Charge to
any of the parties hereto shall be sufficiently served if sent by
prepaid first class post, by hand or by facsimile transmission and
shall be deemed to be given (in the case of facsimile transmission)
when despatched or (where delivered by hand) on the day of delivery
if delivered before 17.00 hours on a London Business Day or on the
next London Business Day if delivered thereafter or (in the case of
first class post) when it would be received in the ordinary course of
the post and shall be sent:
(a) in the case of Funding, to Granite Finance Funding Limited
situated at 0xx Xxxxx, 00 Xxx Xxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxx XX0X 0XX (facsimile number 020 7332 6199) for the
attention of The Company Secretary with a copy to Northern
Rock plc, Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx
XX0 0XX (facsimile number 0191 213 2203) for the attention
of the Group Secretary;
(b) in the case of the Security Trustee, to The Bank of New York
situated at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
attention Corporate Trust (Global Structured Finance)
(facsimile number 020 7964 6399); and
(c) in the case of the Mortgages Trustee, to Granite Finance
Trustees Limited situated at 00 Xxxxxxxxx Xxxxxx, Xx.
Xxxxxx, Xxxxxx XX0 0XX, Channel Islands, (facsimile number
01534 609333) for the attention of The Company Secretary
with a copy to Northern Rock plc, Northern Xxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX (facsimile number 0191
213 2203) for the attention of the Group Secretary;
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 fifteen days prior written notice in
accordance with the provisions of this Clause 24.
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22. Third Party Rights
A person who is not a party to this Deed other than the Funding
Secured Creditors may not enforce any of its terms under the
Contracts (Rights of Third Parties) Xxx 0000, but this shall not
affect any right or remedy of a third party which exists or is
available apart from that Act.
23. Execution in Counterparts; Execution and Effectiveness; Severability
23.1 Counterparts: This Second Priority Funding Deed of Charge may be
executed in any number of counterparts (manually or by facsimile) and
by different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same instrument.
23.2 Effectiveness of Execution: This Funding Deed of Charge shall be
fully effective and binding upon Funding and the Security Trustee
upon at least one copy of this Funding Deed of Charge having been
executed and delivered by both Funding and the Security Trustee
notwithstanding that any other person expressed to be a party to this
Funding Deed of Charge has not then executed and delivered this Deed
and notwithstanding any such party has executed or executes and has
delivered or delivers a counterpart of this Deed.
23.3 Severability: Where any provision in or obligation under this Second
Priority Funding Deed of Charge shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations under this
Second Priority Funding Deed of Charge, or of such provision or
obligation in any other jurisdiction, shall not be affected or
impaired thereby.
24. Governing Law and Submission to Jurisdiction
24.1 Governing Law: This Second Priority Funding Deed of Charge is
governed by, and shall be construed in accordance with, English law
[save that (i) those parts of this Second Priority Funding Deed of
Charge concerned with the creation, subsistence or enforcement of the
Jersey Security Interests shall be governed by and in accordance with
Jersey law and (ii) the floating charge created in terms of Clause
3.2 (Floating Charge) of this Funding Deed of Charge to the extent
that it extends over assets or rights situated in Scotland or
governed by the law of Scotland and any terms hereof which are
particular to the law of Scotland shall be governed by and construed
in accordance with Scots law].
24.2 Submission to Jurisdiction: Each of the parties hereto irrevocably
agrees that the courts of England shall have jurisdiction to hear and
determine any suit, action or proceeding, and to settle any disputes,
which may arise out of or in connection with this Second Priority
Funding Deed of Charge and, for such purposes, irrevocably submits to
the jurisdiction of such courts.
24.3 Process Agent: The Mortgages Trustee irrevocably and unconditionally
appoints Mourant & Co. Capital (SPV) Limited at Xxxxxx Xxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxx XX0X 0XX or otherwise at its
registered office for the time being as its agent for service of
process in England in respect of any proceedings in respect of this
Funding Deed of Charge and undertakes that in the event of Mourant &
Co. Capital (SPV) Limited ceasing so to act it will appoint another
person with a registered office in London as its agent for service of
process.
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24.4 Forum: Each of the parties hereto irrevocably waives any objection
which it might now or hereafter have to the courts of England being
nominated as the forum to hear and determine any Proceedings and to
settle any disputes, and agrees not to claim that any such court is
not a convenient or appropriate forum.
IN WITNESS of which this Second Priority Funding Deed of Charge has been
executed by the parties hereto as a deed which has been delivered on the date
first appearing on page one.
Funding
EXECUTED AS A DEED by )
GRANITE FINANCE FUNDING LIMITED )
acting by: )
_________________________________
Director
Name:
Title:
_________________________________
Director/Secretary
Name:
Title:
The Security Trustee
EXECUTED AS A DEED for and )
on behalf of )
THE BANK OF NEW YORK )
by: )
_________________________________
Authorised Signatory
Name:
Title:
37
EXECUTED AS A DEED for and )
on behalf of )
GRANITE FINANCE TRUSTEES LIMITED )
by: )
_________________________________
Authorised Signatory
Name:
Title:
38
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [28] January 2004 by Granite Finance Funding
Limited. (registered number 79308) a private limited liability company
incorporated under the laws of Jersey whose registered office is at 00
Xxxxxxxxx Xxxxxx, Xx. Xxxxxx, Xxxxxx XX0 0XX, Channel Islands (the
"Principal").
WHEREAS
(1) By virtue of a Second Priority Funding Deed of Charge dated [28]
January 2004 between Granite Finance Funding Limited, the Security
Trustee and the Mortgages Trustee (as amended and supplemented from
time to time, the "Second Priority Funding Deed of Charge"),
provision was made for the execution by the Principal of this Power
of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where
expressed to the contrary) have the same meanings respectively as the
words and phrases in the Second Priority Funding Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably (within the meaning of Section 4 of
the Powers of Attorney Act 1971) and by way of security for the
payment and performance of the Funding Secured Obligations and the
covenants, conditions, obligations and undertakings on the part of
the Principal contained in the Second Priority Funding Deed of Charge
and the other Funding Transaction Documents to which the Principal is
a party from time to time appoints The Bank of New York and any other
person or persons for the time being the Security Trustee or Security
Trustees of and under the Second Priority Funding Deed of Charge (the
"Attorney") and each and every person to whom the Security Trustee
shall from time to time have delegated the exercise of the power of
attorney conferred by this Power of Attorney (each a "Delegate") and
any receiver including any administrative receiver and any manager
(the "Receiver") and/or administrator (the "Administrator") appointed
from time to time by the Attorney or on its behalf its true and
lawful attorney for and in the Principal's name or otherwise jointly
and severally to sign, seal, execute, deliver, perfect and do any
assurance, act, matter or thing which the Attorney, Delegate,
Receiver or Administrator considers in each case to be necessary for
the protection or preservation of the Attorney's and the Funding
Secured Creditors' interests and rights (as described in the Second
Priority Funding Deed of Charge) in and to the Funding Charged
Property or which ought to be done by the Principal under the
covenants, undertakings and provisions contained in the Second
Priority Funding Deed of Charge and the other Funding Transaction
Documents to which the Principal is a party from time to time and
generally to in its name and on its behalf to exercise all or any of
the powers, authorities or discretions conferred by or pursuant to
the Second Priority Funding Deed of Charge on the Security Trustee
and/or any Receiver whether on or at any time after the security has
become enforceable in accordance with Clause 6.2 (Enforceable) of the
Second Priority Funding Deed of Charge or in any other circumstances
where the Attorney
39
has become entitled to take any of the steps referred to in the
Second Priority Funding Deed of Charge including (without limitation)
any or all of the following:
(a) to do every act or thing which the Attorney, Delegate,
Receiver or Administrator may deem to be necessary, proper
or expedient for getting in any of the Funding Charged
Property and/or fully and effectively vesting, transferring
or assigning the Funding Charged Property or any part
thereof and/or the Principal's estate, right, title, benefit
and/or interest therein or thereto in or to the Attorney and
its successors in title or other person or persons entitled
to the benefit thereof or for carrying into effect any other
dealing with the Funding Charged Property whatsoever
permitted under the Second Priority Funding Deed of Charge
in the same manner and as fully and effectively as the
Principal could have done;
(b) the power by writing under its hand by an officer of the
Attorney (including every Receiver appointed under the
Second Priority Funding Deed of Charge) from time to time to
appoint a substitute attorney (each a "Substitute") who
shall have power to act on behalf of the Principal as if
that Substitute shall have been originally appointed
Attorney by this Power of Attorney and/or to revoke any such
appointment at any time without assigning any reason
therefor.
2. In favour of the Attorney, any Delegate, any Receiver and/or
Administrator and/or Substitute, or a person dealing with any of them
and the successors and assigns of such a person, all acts properly
done and documents executed or signed by the Attorney, a Delegate, a
Receiver, an Administrator or a Substitute in the purported exercise
of any power conferred by this Power of Attorney shall for all
purposes be valid and binding on the Principal and its successors and
assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Delegate, Receiver and/or Administrator and/or
Substitute appointed from time to time by the Attorney and their
respective estates (each an "Indemnified Party") against all actions,
proceedings, claims, costs, expenses and liabilities of every
description arising from the exercise, or the purported exercise, of
any of the powers conferred by this Power of Attorney, save where the
same arises as the result of the fraud, negligence or wilful default
of the relevant Indemnified Party or its officers or employees.
4. The provisions of Clause 3 (Funding Security) of the Second Priority
Funding Deed of Charge shall continue in force after the revocation
or termination, howsoever arising, of this Power of Attorney.
5. The laws of England and Wales shall apply to this Power of Attorney
and the interpretation thereof and to all acts of the Attorney and
each Delegate, Receiver and/or Administrator and/or Substitute
carried out or purported to be carried out under the terms hereof
[except that in relation to any action taken by the Attorney, each
Delegate, Receiver and/or Administrator in respect of the Jersey
Security Interests or the Jersey Secured Property, the laws of Jersey
law shall apply.]
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6. The Principal hereby agrees at all times hereafter to ratify and
confirm whatsoever the said Attorney or its attorney or attorneys or
any Delegate, Receiver or Administrator or Substitute shall properly
and lawfully do or cause to be done in and concerning the Funding
Charged Property.
IN WITNESS whereof this Power of Attorney has been executed as a deed by the
Principal the day and year first before written.
EXECUTED AS A DEED by )
GRANITE FINANCE FUNDING LIMITED )
acting by: )
_________________________________
Director
Name:
Title:
_________________________________
Director/Secretary
Name:
Title:
41
