Exhibit 4.5
DATED ___ November, 2002
XXXXXX FUNDING LIMITED
and
XXXXXX FINANCING (NO. 1) PLC
and
XXXXXX FINANCING (NO. 2) PLC
and
XXXXXX FINANCING (NO. 3) PLC
and
XXXXXX FINANCING (NO. 4) PLC
and
XXXXXX FINANCING (NO. 5) PLC
and
XXXXXX FINANCING (NO. 6) PLC
and
ABBEY NATIONAL PLC
and
ABBEY NATIONAL TREASURY SERVICES PLC
and
SPV MANAGEMENT LIMITED
and
CITIBANK N.A., LONDON BRANCH
and
THE ROYAL BANK OF SCOTLAND PLC
and
JPMORGAN CHASE BANK, LONDON BRANCH
and
XXXXXX TRUSTEES LIMITED
-----------------------------------------------------------
AMENDED AND RESTATED FUNDING DEED OF CHARGE
-----------------------------------------------------------
XXXXX & OVERY
London
ICM:632361.1
CONTENTS
Clause Page
1. Interpretation............................................................4
2. Covenant to Pay Funding Secured Obligations and Discharge Secured
Liabilities...............................................................5
3. Funding's Security........................................................5
4. Release of Funding Charged Property.......................................7
5. Continuance of Security...................................................8
6. Declaration of Trust......................................................9
7. Funding's Share of Mortgages Trust and Related Matters...................10
8. Upon Enforcement.........................................................11
9. Exercise of Certain Rights...............................................13
10. General Covenants and Warranties.........................................14
11. Security Trustee and Events of Default...................................17
12. Security Trustee's powers................................................18
13. Receiver.................................................................20
14. Protection of Third Parties..............................................23
15. Protection of Security Trustee and Receiver..............................24
16. Expenses and Indemnity...................................................24
17. Protection of Charges....................................................26
18. Crystallisation..........................................................26
19. Power of attorney, etc...................................................27
20. Other Security, Etc......................................................28
21. Avoidance of Payments....................................................29
22. Set-Off..................................................................29
23. Execution of Documents...................................................30
24. Provisions Supplemental to the Trustee Act 1925..........................30
25. Supplemental Provisions Regarding the Security Trustee...................34
26. Remuneration of the Security Trustee.....................................37
28. Retirement of Security Trustee...........................................40
29. Notices and Demands......................................................41
30. Further Provisions.......................................................43
31. Choice of Law............................................................45
Schedules
1. Form of Security Power of Attorney.......................................52
2. Form of Accession Undertaking............................................54
3. Funding Priority of Payments.............................................82
THIS AMENDED AND RESTATED DEED OF CHARGE is made on ___ November, 2002
BETWEEN:
(1) XXXXXX FUNDING LIMITED (registered in England and Wales No. 3982428)
whose registered office is at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx XX0 0XX ("FUNDING");
(2) XXXXXX FINANCING (NO.1) PLC (registered in England and Wales No.
3946294) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx,, Xxxxxx XX0 0XX (the "FIRST ISSUER");
(3) XXXXXX FINANCING (NO. 2) PLC (registered in England and Wales No.
4056122) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "SECOND ISSUER");
(4) XXXXXX FINANCING (NO. 3) PLC (registered in England and Wales No.
4154576) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "THIRD ISSUER");
(5) XXXXXX FINANCING (NO. 4) PLC (registered in England and Wales No.
4167953) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "FOURTH ISSUER");
(6) XXXXXX FINANCING (NO. 5) PLC (registered in England and Wales No.
4258785) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "FIFTH ISSUER");
(7) XXXXXX FINANCING (NO. 6) PLC (registered in England and Wales No.
4359738) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "SIXTH ISSUER");
(8) XXXXXX TRUSTEES LIMITED (registered in England and Wales No. 3982431)
whose registered office is at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "MORTGAGES TRUSTEE");
(9) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX in its capacity as seller
under the Mortgage Sale Agreement (the "SELLER");
(10) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX in its capacity as cash
manager under the Cash Management Agreement (the "CASH MANAGER", which
expression shall include such person and all other persons for the time
being acting as the cash manager or cash managers pursuant to the Cash
Management Agreement);
(11) ABBEY NATIONAL PLC, acting through its office at 00 Xxxxxxx Xxxxxx,
Xxxxxx X0 0XX in its capacity as account bank under the Bank Account
Agreement (the "ACCOUNT BANK",
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which expression shall include such person and all other persons for the
time being acting as the account bank or account banks to Funding
pursuant to the Bank Account Agreement);
(12) ABBEY NATIONAL TREASURY SERVICES PLC acting through its office at Abbey
National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the
"FUNDING SWAP PROVIDER", which expression shall include such person and
all other persons for the time being acting as the variable rate swap
provider or providers and/or as the tracker rate swap provider or
providers and/or as the fixed floating rate swap provider or providers
pursuant to the Funding Swap Agreement);
(13) SPV MANAGEMENT LIMITED (registered in England and Wales No. 2548079)
whose registered office is at 00 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (the
"CORPORATE SERVICES PROVIDER", which expression shall include such
person and all other persons for the time being acting as the corporate
service provider or corporate service providers pursuant to the
Corporate Services Agreement);
(14) CITIBANK N.A., LONDON BRANCH acting through its office at 000 Xxxxxx,
Xxxxxx XX0X 0XX as start-up loan provider pursuant to the First Start-up
Loan Agreement made on 26th July, 2000 with Funding and the Security
Trustee (the "FIRST START-UP LOAN PROVIDER") and as start-up loan
provider pursuant to the Start-up Loan Agreement made on 29th November,
2000 with Funding and the Security Trustee (the "SECOND START-UP LOAN
PROVIDER") which expressions shall respectively include such person or
all other persons for the time being acting as start-up loan provider
pursuant to the First Start-up Loan Agreement or as start-up loan
provider pursuant to the Second Start-up Loan Agreement;
(15) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX as start-up loan provider
pursuant to the Third Start-up Loan Agreement made on 23rd May, 2001
with Funding and the Security Trustee (the "THIRD START-UP LOAN
PROVIDER"), as start-up loan provider pursuant to the Fourth Start-up
Loan Agreement made on 5th July, 2001 with Funding and the Security
Trustee (the "FOURTH START-UP LOAN PROVIDER"), as start-up loan provider
to Funding pursuant to the Fifth Start-up Loan Agreement (the "FIFTH
START-UP LOAN PROVIDER") and as start-up loan provider to Funding
pursuant to the Sixth Start-up Loan Agreement (the "SIXTH START-UP LOAN
PROVIDER"),which expression shall respectively include such person or
all other persons for the time being acting as start-up loan provider
pursuant to the Third Start-up Loan Agreement, as start-up loan provider
pursuant to the Fourth Start-up Loan Agreement, as start-up loan
provider pursuant to the Fifth Start-up Loan Agreement or as start-up
loan provider pursuant to the Sixth Start-up Loan Agreement;
(16) THE ROYAL BANK OF SCOTLAND PLC acting through its office at Xxxxxxxxxx
Xxxxxx, 000-000 Xxxxxxx, Xxxxxx XX0X 2TH in its capacity as Funding
Liquidity Facility Provider (the "FUNDING LIQUIDITY FACILITY PROVIDER",
which expression shall include such person and all other persons acting
as the liquidity facility provider to Funding for the time being under
the Funding Liquidity Facility Agreement); and
(17) JPMORGAN CHASE BANK, LONDON BRANCH whose principal office is at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the "SECURITY TRUSTEE",
which expression shall include such person and all other persons for the
time being acting as the security trustee or security trustees pursuant
to this Deed).
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WHEREAS:
(A) Pursuant to the terms of the First Issuer Intercompany Loan Agreement,
the First Issuer has agreed to make available the First Issuer Term
Advances by way of term loans, upon and subject to the terms thereof.
(B) The Seller has agreed to assign the Initial Portfolio to the Mortgages
Trustee (as trustee for the Seller and Funding) pursuant to the Mortgage
Sale Agreement to be held on the terms of the Mortgages Trust Deed. The
Seller may assign New Portfolios to the Mortgages Trustee after the
Initial Closing Date. The consideration for such assignments includes
payment of Deferred Consideration to the Seller by Funding.
(C) The Cash Manager has agreed to provide certain cash management services
to Funding on the terms set out in the Cash Management Agreement.
(D) The Account Bank has agreed to provide certain banking services to
Funding on the terms set out in the Bank Account Agreement.
(E) The Funding Swap Provider has agreed to provide a Variable Rate Swap, a
Tracker Rate Swap and a Fixed-Floating Rate Swap to Funding on the terms
set out in the Funding Swap Agreement.
(F) The Corporate Services Provider has agreed to provide certain corporate
services to Funding on the terms set out in the Corporate Services
Agreement.
(G) The First Start-Up Loan Provider has agreed to make available the First
Start-Up Loan to Funding on the terms set out in the First Start-Up Loan
Agreement.
(H) The Funding Liquidity Facility Provider has agreed to provide a
liquidity facility to Funding on the terms set out in the Funding
Liquidity Facility Agreement.
(I) Funding has agreed to provide security in respect of Funding's
obligations under the Funding Agreements to which it is a party and
under any New Intercompany Loan Agreement and associated agreements,
subject to and in accordance with the terms thereof and hereof.
(J) Funding has agreed to provide the Security Trustee with the benefit of
the security described in this Deed to secure Funding's obligations
under the Funding Agreements, upon and subject to the terms hereof. The
Security Trustee shall hold such security on trust for the benefit of
the Funding Secured Creditors.
(K) Pursuant to the terms of the First Issuer Deed of Charge, the First
Issuer will grant security to the Security Trustee (as Security Trustee
for the First Issuer Secured Creditors) in and to all of its right,
title, interest and benefit, present and future, under this Deed to
secure the First Issuer's obligations to the First Issuer Secured
Creditors upon and subject to the terms thereof.
(L) On 29th November, 2000, the Second Issuer and the Second Start-up Loan
Provider acceded to the Funding Deed of Charge pursuant to the First
Deed of Accession to the Funding Deed of Charge.
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(M) On 23rd May, 2001, the Third Issuer and the Third Start-up Loan Provider
acceded to the Funding Deed of Charge pursuant to the Second Deed of
Accession to the Funding Deed of Charge.
(N) On 5th July, 2001, the Fourth Issuer and the Fourth Start-up Loan
Provider acceded to the Funding Deed of Charge pursuant to the Third
Deed of Accession to the Funding Deed of Charge.
(O) On 8th November, 2001, the Fifth Issuer and the Fifth Start-up Loan
Provider acceded to the Funding Deed of Charge pursuant to the Fourth
Deed of Accession to the Funding Deed of Charge.
(P) The Funding Secured Creditors have agreed to amend and restate the terms
of the Funding Deed of Charge as set out herein and to agree
consequential changes to the Funding Priority of Payments set out in
PART I, PART II and PART III of SCHEDULE 3 herein.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. INTERPRETATION
1.1 DEFINITIONS
The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Xxxxx and Xxxxxxxxx
and May on ___ November, 2002 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
is expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction (as so amended, varied or supplemented)
shall, except where the context otherwise requires and save where
otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in CLAUSE 2 of the
Amended and Restated Master Definitions and Construction Schedule.
1.2 CONSTRUCTION
In this Deed, except where the context otherwise requires:
(a) the terms of the First Issuer Intercompany Loan Agreement, the
Amended and Restated Master Definitions and Construction
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;
(b) if the Security Trustee (acting reasonably) considers that an
amount paid by Funding to a Funding Secured Creditor and/or the
Security Trustee and/or the Receiver under or pursuant to the
Funding Agreements or this Deed is capable of being avoided or
otherwise set aside on the liquidation or administration of
Funding or otherwise and that there is a reasonable prospect of
such liquidation or administration occurring and of such payment
being so avoided or set aside, then that amount shall not be
considered to have been irrevocably paid for the purposes of
this Deed; and
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(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.
2. COVENANT TO PAY FUNDING SECURED OBLIGATIONS AND DISCHARGE SECURED
LIABILITIES
Funding covenants with and undertakes to the Security Trustee as trustee
for the Funding Secured Creditors that it will, subject to the
provisions of the Funding Agreements:
(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 to the Security
Trustee (whether for its own account or as trustee for the
Funding Secured Creditors) or any of the other Funding Secured
Creditors by Funding, whether actually or contingently, under
this Deed or any other of the Funding Agreements; and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Deed and/or any of the Funding
Agreements.
3. FUNDING'S SECURITY
3.1 TRUST PROPERTY
Funding, by way of first fixed security for the payment or discharge of
the Funding Secured Obligations, subject to CLAUSE 4 (Release of Funding
Charged Property), hereby charges and assigns by way of security to the
Security Trustee all of its right, title and interest in, to and under
the Funding Share of the Trust Property (including without limitation
all Scottish Trust Property, present and future, comprised therein),
including all rights to receive payment of any amounts which may become
payable to Funding thereunder and all payments received by it 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 all of its right, title and
interest in, to and under the trust's declared and created payment to
the Mortgages Trust Deed, TO HOLD the same unto the Security Trustee
absolutely.
3.2 CONTRACTUAL RIGHTS
Funding, by way of first fixed security for the payment or discharge of
the Funding Secured Obligations, subject to CLAUSE 4 (Release of Funding
Charged Property), hereby assigns by way of security to the Security
Trustee all of its right, title, benefit and interest in, to and under
the Funding Agreements (other than this Deed) including all rights to
receive payment of any amounts which may become payable to it thereunder
and all payments received by it 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, TO HOLD the same unto the Security Trustee absolutely.
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3.3 ACCOUNTS
Funding, by way of first fixed security for the payment or discharge of
the Funding Secured Obligations, subject to CLAUSE 4 (Release of Funding
Charged Property), hereby charges by way of first fixed charge in favour
of the Security Trustee all of its rights, interest and benefit, present
and future, in and to all monies now or at any time hereafter standing
to the credit of:
(a) the Funding GIC Account;
(b) the Funding Transaction Account; and
(c) the Funding Liquidity Facility Stand-by Account,
and the debts represented by them together with all rights relating or
attached thereto (including the right to interest), TO HOLD the same
unto the Security Trustee absolutely.
3.4 AUTHORISED INVESTMENTS
Funding, by way of first fixed security for the payment or discharge of
the Funding Secured Obligations, subject to CLAUSE 4 (Release of Funding
Charged Property), hereby charges by way of security to the Security
Trustee all of its right, title and interest in, to and under any
Authorised Investment purchased using monies standing to the credit of
the Funding Bank Accounts for the time being owned by it and all rights
in respect of or ancillary to such Authorised Investments, TO HOLD the
same unto the Security Trustee absolutely.
3.5 FLOATING CHARGE
Funding, by way of first floating security for the payment or discharge
of the Funding Secured Obligations, subject to CLAUSE 4 (Release of
Funding Charged Property), hereby charges by way of first 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 other than any property or assets from time to
time or for the time being the subject of fixed charges pursuant to
CLAUSES 3.1 to 3.4 (inclusive) or otherwise effectively assigned by way
of security (but excepting from the foregoing exclusion the undertaking,
property, assets and rights of Funding situated in or governed by the
law of Scotland, all of which are charged by the floating charge hereby
created).
3.6 TITLE GUARANTEE
Each of the dispositions of or charges over property effected in or
pursuant to CLAUSES 3.1 TO 3.5 (inclusive) is made with full title
guarantee (or, in relation to any rights or assets situated in or
governed by the law of Scotland, with absolute warrandice).
3.7 NOTICE AND ACKNOWLEDGEMENT
The execution of this Deed by each Funding Secured Creditor shall
constitute notice to each of them of the assignment of all Funding's
right, title, interest and benefit present and future in, to and under
the agreements referred to in CLAUSE 3.2 (Contractual rights) and the
execution of this Deed by each of the Funding Secured Creditors shall
constitute an express acknowledgement by each of them of such
conveyances, transfers, charges and assignments and other security
interests made or granted by the foregoing provisions of this CLAUSE 3
7
(Funding's Security) and CLAUSE 2 (Covenant to pay Funding Secured
Obligations and Discharge Secured Liabilities) and each of the Funding
Secured Creditors undertakes to the Security Trustee not to do anything
inconsistent with the security given under or pursuant to this Deed or
knowingly to prejudice the encumbrances in favour of the Security
Trustee constituted hereunder or the Funding Charged Property provided
that, without prejudice to CLAUSE 9 (Exercise of Certain Rights),
nothing herein shall be construed as limiting the rights of any of the
Funding Secured Creditors exercisable in accordance with and subject to
the terms of any of the Transaction Documents.
3.8 INTIMATION TO MORTGAGES TRUSTEE
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 consents to
such assignation and acknowledges such intimation and notification
thereof and 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
Transaction Documents.
3.9 SECURITY TRUSTEE'S DISCRETION
Subject to CLAUSE 25.2 (Delegation), without prejudice to the rights of
the Security Trustee after the security created under this Deed has
become enforceable, Funding hereby authorises the Security Trustee,
prior to the security created by this Deed becoming enforceable, to
exercise, or refrain from exercising, all rights, powers, authorities,
discretions and remedies of Funding under or in respect of the Funding
Agreements referred to in CLAUSE 3.2 (Contractual Rights) in such manner
as in its absolute discretion it shall think fit. 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.
4. RELEASE OF FUNDING CHARGED PROPERTY
4.1 RELEASE, REASSIGN OR DISCHARGE ON PAYMENT OR DISCHARGE OF FUNDING
SECURED OBLIGATIONS
On the irrevocable and unconditional payment or discharge (or any
combination of the foregoing) of all the Funding Secured Obligations,
the Security Trustee shall at the request and cost of Funding release,
reassign or discharge all the relevant Funding Charged Property to, or
to the order of, Funding.
4.2 DISPOSAL OF AUTHORISED INVESTMENTS
On the making at any time by the Cash Manager on behalf of Funding of a
disposal of any Authorised Investment charged pursuant to CLAUSE 3.4
(Authorised Investments), the Security Trustee shall, if so requested by
and at the sole cost and expense (on an indemnity basis) of Funding, but
without being responsible for any loss, costs, claims or liabilities
whatsoever occasioned by so acting upon such request, release, reassign
or discharge from the encumbrances constituted by or pursuant to this
Deed the relevant Authorised Investments, provided that in the case of a
disposal of an Authorised Investment, the proceeds of such disposal are
paid by Funding into the Funding Bank Account from which the monies
8
to make such Authorised Investment were originally drawn, subject to and
in accordance with the provisions of the Funding Guaranteed Investment
Contract, the Cash Management Agreement and this Deed.
5. CONTINUANCE OF SECURITY
5.1 CONTINUING SECURITY
Without prejudice to the generality of CLAUSE 2 (Covenant to Pay Funding
Secured Obligations and Discharge Secured Liabilities), the charges and
assignments contained in or granted pursuant to this Deed:
(a) shall be without prejudice and in addition to any other security
whatsoever which may be held by the Funding Secured Creditors or
the Security Trustee on behalf of the Funding Secured Creditors
from Funding or any other person for or in respect of the whole
or part of the Funding Secured Obligations;
(b) shall remain in force as continuing security for the Funding
Secured Creditors notwithstanding any settlement of account or
the existence at any time of a credit balance on any current or
other account or any other act, event or matter whatsoever; and
(c) are made for securing New Term Advances made by any New Issuer
and Funding's obligations that may arise from time to time to
any person (other than the First Issuer but including, without
limitation, a New Funding Swap Provider, a New Start-up Loan
Provider or an Additional Funding Liquidity Facility Provider)
who (subject to the terms of the Transaction Documents) has
delivered a duly completed Accession Undertaking to the Security
Trustee in accordance with CLAUSE 5.5 (New Intercompany Loans)
hereof, but not otherwise.
5.2 ACKNOWLEDGEMENT
Funding hereby acknowledges the assignments, charges and other security
interests made or granted by the foregoing provisions of this Deed and
undertakes to the Security Trustee not to do anything inconsistent with
the security given under or pursuant to this Deed or knowingly to
prejudice the security granted to the Security Trustee pursuant to this
Deed or the Funding Charged Property or the Security Trustee's interest
therein.
5.3 DISCRETIONARY ENFORCEMENT
Subject to the provisions of this Deed including, for the avoidance of
doubt, CLAUSE 5.4 (Mandatory Enforcement), 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 Agreements to enforce
their obligations under any of the Funding Agreements. Subject to the
provisions of this Deed, at any time following service of an
Intercompany Loan Enforcement Notice which has not been withdrawn, 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 Deed.
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5.4 MANDATORY ENFORCEMENT
The Security Trustee shall not, and shall not be bound to, take any
proceedings, actions or steps under or in connection with any of the
Transaction Documents (including, without limitation, any steps to
enforce the security constituted by this Deed) unless:
(a) (i) it shall have been directed to do so by the relevant Issuers
whose Term Advance(s) has or have the highest Term Advance
Rating (the "PRINCIPAL ISSUERS" and the "PRINCIPAL TERM
ADVANCES" respectively); provided that, if there is a conflict
between the directions of the Principal Issuers, then the
directions of those Principal Issuers (x) who have given the
same directions and (y) the aggregate principal amount
outstanding of whose Principal Term Advances is greater than the
aggregate principal amount outstanding of the Principal Term
Advances of the other Principal Issuers who have given other
directions; or
(ii) if there are no Term Advances outstanding, it shall have been
directed to do so by the Funding Secured Creditor who ranks
highest in the order or priority of payments set out in CLAUSE
8.4 (Priorities of Payment - After Service of an Intercompany
Loan Enforcement Notice); or
(iii) it is required to do so under any express provision of this
Deed; and
(b) it shall have been indemnified to its satisfaction against all
liabilities, actions, proceedings, claims and demands to which
it may be or become liable and all costs, charges, damages and
expenses which may be incurred by it in connection therewith,
and the terms of such indemnity may include the provision of a
fighting fund, non-recourse loan or other similar arrangement.
5.5 NEW INTERCOMPANY LOANS
If Funding intends to enter into a New Intercompany Loan Agreement, then
as a condition precedent thereto the relevant New Issuer, together with
other relevant creditors (as determined by the Security Trustee)
including any New Funding Swap Provider and any New Start-Up Loan
Provider shall accede to the terms of this Deed by executing an
Accession Undertaking in the form set out in SCHEDULE 2 (Accession
Undertaking) to this Deed.
6. DECLARATION OF TRUST
Each of the Funding Secured Creditors declares the Security Trustee, and
the Security Trustee hereby declares itself, trustee of all the
covenants, undertakings, charges, assignments and other Security
Interests made or given to it or to be made or given to it under or
pursuant to the Funding Agreements and any Accession Undertaking for the
Funding Secured Creditors, upon and subject to the terms and conditions
of this Deed.
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7. FUNDING'S SHARE OF MORTGAGES TRUST AND RELATED MATTERS
7.1 FUNDING BANK ACCOUNTS
At all times during the subsistence of the Funding Security, Funding
shall:
(a) save as otherwise provided in the Funding Agreements or unless
the Security Trustee otherwise agrees in writing (and then only
on such terms and in such manner as the Security Trustee may
require) procure that the Funding Share Percentage of the
Mortgages Trustee Available Revenue Receipts and any
distribution of Principal Receipts to Funding under the
Mortgages Trust shall be paid into the Funding GIC Account; and
(b) not be entitled to withdraw or transfer from the Funding GIC
Account any monies standing to the credit thereof or direct any
payment to be made therefrom to any person without the Security
Trustee's prior written consent.
7.2 WITHDRAWALS FROM FUNDING GIC ACCOUNT; AUTHORISED INVESTMENTS
(a) Funding covenants with the Security Trustee that the amounts standing to
the credit of the Funding GIC Account may only be withdrawn in
accordance with this CLAUSE 7.
(b) On any day during an Interest Period but prior to the issue of an
Intercompany Loan Enforcement Notice, the Security Trustee shall consent
to the transfer by the Cash Manager of monies from the Funding GIC
Account to the Funding Transaction Account, only where such monies are
to be applied to meet any amounts then due and payable by Funding or the
Issuer to third parties, the Account Bank or the Issuer Account Bank in
accordance with items (a)(ii), (a)(iii) and (c) of the Funding
Pre-Enforcement Revenue Priority of Payments.
(c) On each Interest Payment Date prior to the issue of an Intercompany Loan
Enforcement Notice, the Security Trustee shall consent to the transfer
from the Funding GIC Account to the Funding Transaction Account of such
amounts of Funding Available Principal Receipts and Funding Available
Revenue Receipts as may be necessary on such date to be applied to meet
Funding's payment obligations in accordance with the Funding
Pre-Enforcement Revenue Priority of Payments and the relevant Funding
Principal Priorities of Payments (as the same may be amended or varied
from time to time).
(d) The Cash Manager may, prior to the service of an Intercompany Loan
Enforcement Notice, make withdrawals from the relevant Funding Bank
Account for the purposes of acquiring Authorised Investments. All
amounts received in respect of the Authorised Investments (including
earnings thereon) shall be deposited into the relevant Funding Bank
Account from which they were originally drawn.
7.3 APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS
On each Interest Payment Date prior to the service of an Intercompany
Loan Enforcement Notice, the Security Trustee hereby authorises Funding
or the Cash Manager in its place to make withdrawals of Funding
Available Principal Revenues standing to the credit of the Funding
Transaction Account and to apply such monies to repay principal due and
payable by Funding under the Intercompany Loans in accordance with the
provision set out in PART II of SCHEDULE 3 hereto.
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7.4 APPLICATION OF FUNDING AVAILABLE REVENUE RECEIPTS
On each Interest Payment Date prior to the service of an Intercompany
Loan Enforcement Notice, the Security Trustee hereby authorises Funding
or the Cash Manager in its place to withdraw Funding Available Revenue
Receipts from the Funding Transaction Account and to apply such monies
in accordance with the Funding Pre-Enforcement Revenue Priority of
Payments set out in PART I of SCHEDULE 3 to this Deed.
7.5 APPLICATION OF FUNDING REVENUE RECEIPTS AND FUNDING PRINCIPAL RECEIPTS
FOLLOWING ENTRY INTO A NEW INTERCOMPANY LOAN
(a) Without prejudice to the provisions of paragraph (b) of this CLAUSE 7.5,
if any New Term Advances under any New Intercompany Loan Agreements are
made available by any New Issuer to Funding in accordance with the terms
of the Transaction Documents, then the parties to this Deed, together
with any person (including any New Issuer, any New Swap Provider, any
New Start-up Loan Provider and any Additional Funding Liquidity Facility
Provider) entering into an Accession Undertaking shall set out the new
Funding Priority of Payments accordingly in a schedule to the Accession
Undertaking. The new Funding Priority of Payments so amended shall
supersede those set out in PART I, PART II and PART III of SCHEDULE 3 to
this Deed.
(b) If any New Term Advances under any New Intercompany Loan Agreements are
made available by any New Issuer to Funding in accordance with the terms
of the Transaction Documents, then, subject to the terms of this Deed
and the relevant Scheduled Repayment Dates and permitted repayment dates
of the Term Advances and the New Term Advances, the Funding Available
Principal Receipts and Funding Available Revenue Receipts will be
applied (after making payment ranking higher in the relevant Funding
Priority of Payments to meet the revenue and principal repayments due
first on the Term Advances with the highest Term Advance Rating, and
thereafter on the Term Advances with the next highest Term Advance
Rating, and so on, down to the Term Advances with the lowest Term
Advance Rating.
8. UPON ENFORCEMENT
8.1 PRIOR NOTIFICATION
The Security Trustee shall, if reasonably practicable, give prior
notification to the Seller of the Security Trustee's intention to
enforce the security created by this Deed. However, the failure of the
Security Trustee to provide such notification shall not prejudice the
ability of the Security Trustee to enforce the security created by this
Deed.
8.2 SERVICE OF INTERCOMPANY LOAN ENFORCEMENT NOTICE
Subject to the provisions of the Transaction Documents (including,
without limitation, CLAUSE 14.10 (Acceleration) of the Intercompany Loan
Terms and Conditions), in the event that an Intercompany Loan
Enforcement Notice has been served (and not withdrawn) by the Security
Trustee on Funding, the Security Trustee shall as soon as is reasonable
(which, in the case of a London Business Day, shall mean upon giving not
less than three hours notice expiring during normal business hours)
serve a copy of the Intercompany Loan Enforcement Notice on the Funding
Secured Creditors.
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8.3 CRYSTALLISATION
From and including the date when the Security Trustee serves an
Intercompany Loan Enforcement Notice (which has not been withdrawn) on
Funding:
(a) no amount may be withdrawn from the Funding Bank Accounts (which
accounts shall be identified in the relevant Intercompany Loan
Enforcement Notice) except with the prior written consent of the
Security Trustee; and
(b) if not already crystallised, any charge created by CLAUSE 3.5
(Floating Charge) which is a floating charge shall crystallise.
8.4 PRIORITIES OF PAYMENT-- AFTER SERVICE OF AN INTERCOMPANY LOAN
ENFORCEMENT NOTICE
All monies received or recovered by the Security Trustee (or a Receiver
appointed on its behalf) following service of an Intercompany Loan
Enforcement Notice shall be applied by the Security Trustee (save to
the extent required otherwise by law) in the order of priority set out
in PART III of SCHEDULE 3 hereto.
8.5 APPLICATION OF MONIES RECEIVED AFTER INTERCOMPANY LOAN ENFORCEMENT
NOTICE
Each Funding Secured Creditor undertakes (but in relation to the
relevant Issuers, in relation to the Funding Charged Property only) to
pay to the Security Trustee or the Receiver, as the case may be, all
monies received or recovered by it (including by way of set-off or
otherwise) subsequent to the service of an Intercompany Loan Enforcement
Notice in order that such amounts can be applied in accordance with
CLAUSE 8.4 (Priorities of Payment - After Service of an Intercompany
Loan Enforcement Notice).
8.6 LAW OF PROPERTY XXX 0000
Sections 109(6) and (8) of the Law of Property Xxx 0000 (the "1925 Act")
shall not apply in relation to a Receiver appointed under this Deed.
8.7 PETITION FOR ADMINISTRATION
Following presentation of a petition for an administration order in
relation to Funding, the Security Trustee shall, subject to being
indemnified to its satisfaction in accordance with CLAUSE 5.4 (Mandatory
Enforcement), appoint a Receiver in accordance with this Deed (who
shall, to the extent permitted by law, be an administrative receiver)
and the Security Trustee shall instruct the Receiver to attend at the
hearing of the petition and take such steps as are necessary to prevent
the appointment of an administrator. The Funding Secured Creditors shall
co-operate and do all acts and enter into such further documents, deeds
or agreements as the Security Trustee may deem necessary or desirable to
ensure that an administration order is not made and that an
administrative receiver is appointed.
8.8 ACKNOWLEDGEMENT OF FUNDING SECURED CREDITORS
Without prejudice to the generality of CLAUSE 30.8 (Funding Secured
Creditors), each of the Funding Secured Creditors hereby acknowledges
and concurs with the provisions of CLAUSE 5.4 (Mandatory Enforcement)
and CLAUSE 25.8 (Modification to Transaction Documents) and each of them
agrees that it shall have no claim against the Security Trustee as a
result of the application thereof.
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8.9 ENFORCEMENT
If the Security Trustee enforces the security created under this Deed at
a time when either no amounts or not all amounts owing in respect of the
Funding Secured Obligations have become due and payable, the Security
Trustee (or a Receiver) may, for so long as no such amounts or not all
such amounts have become due and payable, pay any monies referred to in
CLAUSE 8.4 (Priorities of Payment - After Service of an Intercompany
Loan Enforcement Notice), as the case may be, into, and retain such
monies in, an interest-bearing account (a "RETENTION ACCOUNT") to be
held by it as security and applied by it in accordance with CLAUSE 8.4
(Priorities of Payment - After Service of an Intercompany Loan
Enforcement Notice) as and when any of the amounts referred to therein
become due and payable.
8.10 FUNDING LIQUIDITY FACILITY STAND-BY ACCOUNT
After the service of an Intercompany Loan Enforcement Notice, all
amounts standing to the credit of the Funding Liquidity Facility
Stand-by Account will be applied in or towards payment of all amounts of
principal and interest and any other amounts due or accrued due but
unpaid to the Funding Liquidity Facility Provider under the Funding
Liquidity Facility Agreement.
9. EXERCISE OF CERTAIN RIGHTS
9.1 NO ENFORCEMENT BY FUNDING AGAINST RELEVANT ISSUERS
Funding undertakes to each of the Funding Secured Creditors (including
the Security Trustee in its capacity as such under this Amended and
Restated Funding Deed of Charge) that unless and until all amounts
payable pursuant to the Funding Secured Obligations have been satisfied
in full, it shall not:
(a) take any steps or pursue any action whatsoever for the purpose
of recovering any debts due or owing to it by any of the
relevant Issuers; or
(b) petition or procure the petitioning for the winding-up or
administration of any of the relevant Issuers or the appointment
of an administrative receiver in respect of any of the relevant
Issuers.
9.2 NO ENFORCEMENT BY FUNDING SECURED CREDITORS
Each of the Funding Secured Creditors (other than the Security Trustee
and any Receiver) hereby agrees with Funding and the Security Trustee
that:
(a) only the Security Trustee may enforce the security created in
favour of the Security Trustee by this Deed in accordance with
the provisions hereof; and
(b) it shall not take any steps for the purpose of recovering any of
the Funding Secured Obligations (including, without limitation,
by exercise any rights of set-off) or enforcing any rights
arising out of the Transaction Documents against Funding or
procuring the winding up, administration or liquidation of
Funding in respect of any of its liabilities whatsoever,
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unless an Intercompany Loan Enforcement Notice shall have been served or
the Security Trustee, having become bound to serve an Intercompany Loan
Enforcement Notice, and/or having become bound to take any steps or
proceedings to enforce the said security pursuant to this Deed, fails to
do so within 30 days of becoming so bound and that failure is continuing
(in which case each of such Funding Secured Creditors shall be entitled
to take any such steps and proceedings as it shall deem necessary other
than the presentation of a petition for the winding up of, or for an
administration order in respect of, Funding).
9.3 KNOWLEDGE OF SECURITY TRUSTEE OF INTERCOMPANY LOAN EVENT OF DEFAULT
The Security Trustee will not be deemed to have knowledge of the
occurrence of an Intercompany Loan Event of Default unless the Security
Trustee has received notice from a Funding Secured Creditor stating that
an Intercompany Loan Event of Default has occurred and describing that
Intercompany Loan Event of Default.
9.4 DISPOSAL OF FUNDING CHARGED PROPERTY
Notwithstanding CLAUSE 12 (Security Trustee's Powers), if the Funding
Security has become enforceable otherwise than by reason of a default in
payment of any amount due on the Term AAA Advances (or, once the Term
AAA Advances have been repaid in full, the Term Advances with the next
highest Term Advance Rating or, once those Term Advances have been
repaid in full, the Term Advances with the next highest Term Advance
Rating (and so on down to the Term Advances with the lowest Term Advance
Rating)), the Security Trustee will not be entitled to dispose of any of
the Funding Charged Property unless either a sufficient amount would be
realised to allow discharge in full of all amounts owing in respect of
the Term AAA Advances, and once all of the Term AAA Advances have been
repaid, the Term Advances with the next highest Term Advance Rating and,
once all those Term Advances have been repaid, the Term Advances with
the next highest Term Advance Rating (and so on down to the Term
Advances with the lowest Term Advance Rating), or 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
cash flow 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 all amounts owing in respect of the
Term AAA Advances (or, once the Term AAA Advances have been repaid in
full, the Term Advances with the next highest Term Advance Rating or,
once those Term Advances have been repaid in full, the Term Advances
with the next highest Term Advance Rating (and so on down to the Term
Advances with the lowest Term Advance Rating)). The fees and expenses of
the aforementioned financial adviser or such other professional adviser
selected by the Security Trustee shall be paid by Funding.
10. GENERAL COVENANTS AND WARRANTIES
10.1 FUNDING ACCOUNTS
Funding hereby undertakes that, for so long as any Funding Secured
Obligations remain outstanding, it shall not (without the consent of the
Security Trustee):
(a) open or maintain any bank account or deposit account with any
bank or any other financial institution other than the Funding
Bank Accounts; or
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(b) close the Funding Bank Accounts,
other than in accordance with the Bank Account Agreement and this Deed.
10.2 CONSENTS
Funding hereby represents and warrants to the Security Trustee (for
itself and on trust for the other Funding Secured Creditors) that, save
for registration of certain of the Transaction Documents with the
Registrar of Companies in accordance with the provisions of Chapter I of
Part XII of the Companies Xxx 0000, no authorisation, approval, consent,
licence, exemption, registration, recording, filing or notarisation and
no payment of any duty or tax and no other action whatsoever is
necessary to ensure the validity, legality or enforceability of the
liabilities and obligations of Funding or the rights of the Funding
Secured Creditors and the Security Trustee in respect of Funding under
this Deed.
10.3 REGISTRAR OF COMPANIES
Funding undertakes to the Funding Secured Creditors to 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 Deed within 21 days after the date of this
Deed.
10.4 DISPOSALS
Save as provided for in the Transaction Documents, Funding undertakes
not to dispose of, by one or more transactions or series of transactions
(whether related or not and whether involuntary or voluntary), the whole
or any part of the Funding Charged Property.
10.5 UNITED STATES ACTIVITIES
Funding represents and covenants that it will not engage in any
activities in the United States (directly or through agents), will not
derive any income from United States sources as determined under United
States income tax principles and will not hold any property if doing so
would cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United States tax
principles.
10.6 ADDITIONAL FUNDING LIQUIDITY FACILITY
(a) If the rating of the short-term unsecured, unguaranteed and
unsubordinated debt obligations of the Seller fall below A-1 by
Standard & Poor's, P-1 by Xxxxx'x and F-1 by Fitch, then Funding
(unless otherwise agreed with the Rating Agencies and the
Security Trustee) here covenants that it will enter into an
additional liquidity facility agreement for an amount of not
less than (pound)30,000,000 (the "ADDITIONAL FUNDING LIQUIDITY
FACILITY AGREEMENT" and the facility made available thereunder
the "ADDITIONAL FUNDING LIQUIDITY FACILITY"). The provider of
the Additional Funding Liquidity Facility (the "ADDITIONAL
FUNDING LIQUIDITY FACILITY PROVIDER") will be a bank the
short-term unsecured, unguaranteed and unsubordinated debt
obligations of which are rated at least A-1+ by Standard &
Poor's, P-1 by Xxxxx'x and F-1+ by Fitch, unless otherwise
agreed by the Rating Agencies and the Security Trustee.
(b) The terms of the Additional Funding Liquidity Facility Agreement
will permit Funding to make drawings only if (i) an Insolvency
Event occurs in relation to the
16
Seller and (ii) no Intercompany Loan Enforcement Notice has been
served and not withdrawn by the Security Trustee, in order to
pay interest on the Term Advances and amounts ranking in
priority to interest on the Term Advances (but excluding amounts
required to cure any Principal Deficiency recorded on the
Principal Deficiency Ledger) in the Funding Pre-Enforcement
Revenue Priority of Payments. The other terms of the Additional
Funding Liquidity Facility Agreement will be agreed at the time,
if ever, that Funding is required to enter into that Agreement,
subject to the prior approval of the Rating Agencies and the
Security Trustee.
(c) The Additional Funding Liquidity Facility Provider will accede
to the terms of the this Deed and all payments due to the
Additional Funding Liquidity Facility Provider will rank in
priority to payments of interest and principal on the Term
Advances, and will rank pro rata and pari passu with amounts due
to the Funding Liquidity Facility Provider. By entering into
this Deed or, as the case may be, any Accession Undertaking,
each Funding Secured Creditor hereby acknowledges and agrees to
the proposed entry by Funding into the Additional Funding
Liquidity Facility Agreement and to the proposed accession of
the Additional Funding Liquidity Facility Provider to the terms
of this Deed on the terms described above.
10.7 ADDITIONAL POSITIVE COVENANTS
Funding covenants and undertakes with the Security Trustee for the
benefit of the Funding Secured Creditors as follows:
(a) to cause to be prepared and certified by its auditors in respect
of each Financial Year accounts in such form as will comply with
relevant legal and accounting requirements for the time being;
(b) at all times to keep or procure the keeping of proper books of
account and records and allow the Security Trustee and any
person or persons appointed by the Security Trustee to whom
Funding shall have no reasonable objection free access to such
books of account and records at all times during normal business
hours upon reasonable notice in writing provided that such
inspection shall only be for the purposes of carrying out its
duties under this Deed and any information so obtained shall
only be used and passed on to any other person for the purpose
of the Security Trustee carrying out its duties under this Deed;
(c) to give notice in writing to the Security Trustee of the
occurrence of any Intercompany Loan Event of Default, Potential
Intercompany Loan Event of Default and/or service of an
Intercompany Loan Enforcement Notice (which has not been served
by the Security Trustee) (such notice to be effective by the
delivery of a copy of the Intercompany Loan Enforcement Notice
to Security Trustee) immediately upon becoming aware thereof and
without waiting for the Security Trustee to take any further
action;
(d) give to the Security Trustee (i) within seven days after demand
by the Security Trustee therefor and (ii) (without the necessity
for any such demand) promptly after the publication of its
audited accounts in respect of each Financial Year and in any
event not later than the date required by statute to file or
publish (whichever is earlier) such audited accounts after the
end of each such Financial Year a certificate signed by two
directors of Funding to the effect that as at a date not more
than seven days before delivering such certificate (the
"CERTIFICATION DATE") there did not exist
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and had not existed since the certification date of the previous
certificate (or in the case of the first such certificate the
date hereof) any Intercompany Loan Event of Default or any
Potential Intercompany Loan Event of Default (or if such then
exists or existed specifying the same) and that during the
period from and including the certification date of the last
such certificate (or in the case of the first such certificate
the date hereof) to and including the certification date of such
certificate Funding has complied, to the best of their knowledge
and belief, with all its obligations contained in this Deed and
each of the other Funding Agreements or (if such is not the
case) specifying the respects in which it has not so complied;
(e) at all times to execute all such further documents and do all
such further acts and things as may in the reasonable opinion of
the Security Trustee be necessary at any time or times to give
effect to the terms and conditions of this Deed and the other
Funding Agreements;
(f) at all times to comply with the obligations and provisions
binding upon it under and pursuant to this Deed and the other
Funding Agreements; and
(g) duly and promptly to pay and discharge all Taxes imposed upon it
or its assets unless such Taxes are, in the opinion of the
Security Trustee, being contested in good faith by Funding.
11. SECURITY TRUSTEE AND EVENTS OF DEFAULT
11.1 SECURITY TRUSTEE RIGHTS AND OBLIGATIONS
For the period commencing upon the service of an Intercompany Loan
Enforcement Notice and terminating upon the notification to the Funding
Secured Creditors by the Security Trustee that all Funding Secured
Obligations have been satisfied in full:
(a) all payments under or arising from this Deed shall be made to
the Security Trustee or to its order (except as otherwise
provided for in this Deed);
(b) save as otherwise expressly provided in this Deed, all rights or
remedies provided for by this Deed or available at law or in
equity to the Funding Secured Creditors are exercisable by the
Security Trustee;
(c) save as otherwise expressly provided in this Deed, all rights to
compel performance of the Transaction Documents are exercisable
by the Security Trustee; and
(d) all payments in respect of the Funding Secured Obligations shall
operate in satisfaction pro tanto of Funding's covenants to the
Funding Secured Creditors.
11.2 FUNDING SECURED CREDITOR OBLIGATIONS
For the avoidance of doubt, this CLAUSE 11 (Security Trustee and Events
of Default) shall not impose any obligation on the Security Trustee to
perform any of the obligations of the Funding Secured Creditors under
this Deed. The Funding Secured Creditors shall remain liable to perform
such obligations.
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12. SECURITY TRUSTEE'S POWERS
12.1 ENFORCEABLE
Without prejudice to the provisions of CLAUSES 8.6 (Law of Property Act
1925) and 13.1 (Appointment), (i) the security created under this Deed
shall become immediately enforceable and (ii) the power of sale and
other powers conferred by Section 101 of the 1925 Act, as varied or
amended by this Deed, shall, in accordance with CLAUSE 11.1 (Security
Trustee Rights and Obligations), be exercisable by the Security Trustee,
in each case at any time following service of an Intercompany Loan
Enforcement Notice or, if there are no Term Advances outstanding,
following a default in payment of any other Funding Secured Obligations
on its due date.
12.2 AMOUNTS DUE
All amounts owing under the Funding Secured Obligations shall become due
for the purposes of Section 101 of the 1925 Act and the statutory power
of sale and of appointing a Receiver which are conferred on the Security
Trustee under the 1925 Act (as varied or extended by this Deed) and all
other powers shall be deemed to arise immediately after execution of
this Deed but shall only become enforceable in accordance with CLAUSE
12.1 (Enforceable) above. For the avoidance of doubt, the Security
Trustee shall not be required to have regard to the interests of Funding
in the exercise of its rights, powers, authorities, discretions and
remedies under this Deed.
12.3 POWER OF SALE
Section 103 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed and the statutory power of sale (as
extended by this Deed) and all other powers shall be exercisable at any
time after service of an Intercompany Loan Enforcement Notice.
12.4 LAW OF PROPERTY ACT 1925
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 therein) to
authorise the Security Trustee at its absolute discretion at any time
following service of an Intercompany Loan Enforcement Notice:
(a) to 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) to sell the Funding Charged Property (subject to, in respect of
the Funding Share of the Trust Property, CLAUSE 14 of the
Mortgages Trust Deed), and to do so for any shares, debentures
or other securities whatsoever, or in consideration of an
agreement to pay all or part of the purchase price at a later
date or dates, or an agreement to make periodical payments,
whether or not the agreement is secured by an Encumbrance or a
guarantee, or for such other consideration whatsoever as the
Security Trustee may think fit, and also to grant any option to
purchase, and to effect exchanges of, any of the Funding Charged
Property (and nothing shall preclude any such disposal being
made to a Funding Secured Creditor);
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(c) with a view to or in connection with the sale of the Funding
Charged Property, to carry out any transaction, scheme or
arrangement which the Security Trustee may, in its absolute
discretion, consider appropriate;
(d) to insure the Funding Charged Property against such risks and
for such amounts as the Security Trustee may consider prudent;
and
(e) to do all or any of the things or exercise all or any of the
powers which are mentioned or referred to in CLAUSE 13.6 (Powers
of the Receiver of Funding) as if each of them was expressly
conferred on the Security Trustee by this Deed and which may not
be included in PARAGRAPHS (a) to (d) above.
12.5 DELEGATION TO RECEIVER
In addition and without prejudice to any of its statutory powers, the
Security Trustee may at any time by deed delegate to the Receiver all or
any of the extended powers of leasing, surrendering or accepting
surrenders of leases conferred on the Security Trustee by this Deed.
12.6 ADDITIONAL POWERS
The Security Trustee shall have the power to insure against any
liabilities or obligations arising:
(a) as a result of the Security Trustee acting or failing to act in
a certain way (other than which may arise from its negligence or
wilful default or that of its officers or employees);
(b) as a result of any act or failure to act by any person or
persons to whom the Security Trustee has delegated any of its
trusts, rights, powers, duties, authorities or discretions, or
appointed as its agent (other than which may arise from such
person's negligence or wilful default);
(c) in connection with the Funding Charged Property; or
(d) in connection with or arising from the enforcement of the
security created by this Deed.
The Security Trustee shall not be under any obligation to insure in
respect of such liabilities and/or obligations or require any other
persons to maintain insurance, but to the extent that it does so,
Funding shall quarterly and on written request pay all insurance
premiums and expenses which the Security Trustee may properly incur in
relation to such insurance. If Funding fails to reimburse the Security
Trustee, the Security Trustee shall be entitled to be indemnified out of
the Funding Charged Property in respect thereof, and in the case of an
Intercompany Loan Enforcement Notice having been served, the
indemnification of all such insurance premiums and expenses shall be
payable in priority to payments to the Funding Secured Creditors and
otherwise in accordance with this Deed.
12.7 AUTHORISED INVESTMENTS
Any monies which under the trusts of this Deed ought to or may be
invested by the Security Trustee after the service of an Intercompany
Loan Enforcement Notice may be invested in
20
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
any of such Authorised Investments for or into other such Authorised
Investments as the Security Trustee at its absolute discretion may
determine, and shall not be responsible (save where any loss results
from the Security Trustee's fraud, wilful default or 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.
12.8 SCOTTISH TRUST PROPERTY
Without prejudice to the foregoing provisions of this CLAUSE 12
(Security Trustee's Powers) and CLAUSE 14 of the Mortgages Trust Deed,
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 by or pursuant to 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 any part
of the Scottish Trust Property on terms previously approved by the
Security Trustee and/or in causing the trusts constituted by any
Scottish Trust Deed 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 Deed. 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.
13. RECEIVER
13.1 APPOINTMENT
On the service of an Intercompany Loan Enforcement Notice on Funding 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 of the Funding Charged
Property or any part thereof and, in the case of an appointment of more
than one person, to act together or independently of the other or
others. In the event that there is the presentation of a petition to the
court for an administration order and such presentation is notified to
the Funding Secured Creditors, the Funding Secured Creditors shall
forthwith notify the Security Trustee.
13.2 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.
13.3 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.
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13.4 AGENT OF FUNDING
The Receiver shall 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 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 in writing by the Security Trustee.
13.5 REMUNERATION
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 and may include remuneration
in connection with claims, actions or proceedings made or brought
against the Receiver by Funding or any other person or the performance
or discharge of any obligation imposed upon it by statute or otherwise)
but subject to CLAUSE 8.4 (Priorities of Payment - After Service of an
Intercompany Loan Enforcement Notice) and SCHEDULE 3 such remuneration
shall be payable hereunder by Funding alone, and the amount of such
remuneration shall be paid in accordance with the terms and conditions
of the manner agreed from time to time between the Receiver, the
Security Trustee and the Funding Secured Creditors.
13.6 POWERS OF THE RECEIVER OF FUNDING
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 following powers:
(a) to take possession of, get in and collect the Funding Charged
Property (or such part thereof in respect of which it may be
appointed) or any part thereof including income whether accrued
before or after the date of its appointment;
(b) to carry on, manage, concur in or authorise the management of,
or appoint a manager of, the whole or any part of the business
of Funding;
(c) to sell, exchange, license, surrender, release, disclaim,
abandon, return or otherwise dispose of or in any way whatsoever
deal with the Funding Charged Property (subject, in the case of
the Funding Share of the Trust Property, to CLAUSE 14 of the
Mortgages Trust Deed) or any interest in that Funding Charged
Property or any part thereof for such consideration (if any) and
upon such terms (including by deferred payment or payment by
instalments) as it may think fit and to concur in any such
transaction;
(d) to sell or concur in selling the whole or any part of Funding's
business whether as a going concern or otherwise;
(e) to sell on condition and to grant rights and options over the
whole or any part of the Funding Charged Property and (with or
without consideration) to rescind, surrender or disclaim or
accept or agree to accept surrenders or disclaimers of
agreements
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relating to or affecting any of the Funding Charged Property in
such circumstances, to such persons (including, without
limitation, to the Security Trustee), for such purposes and upon
such terms whatsoever as it may think fit and also to vary the
terms of any contract affecting any of the Funding Charged
Property;
(f) in connection with the exercise or the proposed exercise of any
of its powers or in order to obtain payment of its remuneration
(whether or not it is already payable), to borrow or raise
monies from any person, including the Security Trustee, without
security or on the security of any of the Funding Charged
Property and generally in such manner and on such terms as it
may determine;
(g) to bring, defend, submit to arbitration, negotiate, compromise,
abandon and settle any claims, disputes and proceedings
concerning the Funding Charged Property or any part thereof;
(h) to 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 to form a
subsidiary or subsidiaries of Funding;
(i) to insure, protect, maintain, repair, alter, improve, replace,
exploit, add to and develop or concur in so doing the Funding
Charged Property or any part thereof in any manner and for any
purpose whatsoever;
(j) to redeem, discharge or compromise any Encumbrance from time to
time having priority to or ranking pari passu with this Deed;
(k) to 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 and for such periods as
it may determine;
(l) in connection with the exercise of any of its powers, to 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 determine,
all documents, receipts, registrations, acts or things which it
may consider appropriate;
(m) to 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 and complete, disclaim,
abandon or modify all or any of the outstanding contracts or
arrangements of Funding relating to or affecting the Funding
Charged Property;
(n) to exercise all powers as are described in Schedule 1 to the
Insolvency Xxx 0000, whether or not the Receiver is an
"administrative receiver" as defined in that Act;
(o) generally to carry out, or cause or authorise to be carried out,
any transaction, 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
effectually as if it were solely and absolutely entitled to the
Funding Charged Property;
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(p) to delegate its powers by way of power of attorney or in any
other manner to any person any right, power or discretion
exercisable by it under this Deed on the terms (including the
power to sub-delegate) and subject to any regulations which such
Receiver may think fit and such Receiver shall not be liable or
responsible in any way to the relevant Issuers or the Security
Trustee for any loss or liability arising from any act, default,
omission or misconduct on the part of any such delegate or
sub-delegate;
(q) to call up or require the directors of Funding to call up all or
any portion of the uncalled capital for the time being of
Funding and to enforce payment of any call by action (in the
name of Funding or the Receiver as may be thought fit);
(r) in addition:
(i) to do all other acts and things which it may consider
desirable or necessary for realising any Funding Charged
Property or incidental or conducive to any of the
rights, powers or discretions conferred on a Receiver
under or by virtue of this Deed; and
(ii) to exercise in relation to any Funding Charged Property
all the powers, authorities and things which it would be
capable of exercising if it were the absolute beneficial
owner of the same,
and may use the name of Funding for any of the above purposes;
and
(s) to pay and discharge out of the profits and income of the
Funding Charged Property the expenses incurred in the exercise
of any of the powers conferred by this CLAUSE 13.6 (Powers of
the Receiver of Funding) or otherwise in respect of such 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 (Priorities of
Payment - After Service of an Intercompany Loan Enforcement
Notice) and SCHEDULE 3, as the case may be.
The Security Trustee may pay over to the Receiver any monies
constituting part of the Funding Charged Property to the intent that the
same may be applied for the purposes referred to in CLAUSE 8.3
(Priorities of Payment - After Service of an Intercompany Loan
Enforcement Notice) and SCHEDULE 3 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.
14. PROTECTION OF THIRD PARTIES
14.1 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 has arisen or become exercisable,
whether the Funding Secured Obligations remain outstanding or have
become payable, whether 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 of such a purchaser and the position of such a
person shall not be impeachable by reference to any of those matters and
the protections contained in Sections 104 to 107 of the 1925 Act shall
apply to any person purchasing from or dealing with a Receiver or the
Security Trustee.
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14.2 RECEIPTS
The receipt of the Security Trustee or the Receiver shall be an absolute
and a conclusive discharge to a purchaser or such other person 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 the Receiver.
15. PROTECTION OF SECURITY TRUSTEE AND RECEIVER
15.1 LIABILITY
Neither the Security Trustee nor the Receiver of Funding shall be liable
to Funding, in the absence of wilful default or negligence on their part
or that of their employees or officers or breach by the Security Trustee
of its obligations under this Deed, in respect of any loss or damage
which arises out of the exercise or the attempted or purported exercise
of or failure to exercise any of their respective powers.
15.2 POSSESSION
Without prejudice to the generality of CLAUSE 15.3 (Mortgagee in
possession), entry into possession of the Funding Charged Property shall
not render the Security Trustee or the Receiver of that company liable
to account as mortgagee or creditor in possession. If and whenever the
Security 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.
15.3 MORTGAGEE IN POSSESSION
Neither the Security Trustee nor the other Funding Secured Creditors
shall, by reason of any assignment or other security made under this
Deed, be or be deemed to be a mortgagee or creditor in possession nor
shall they take any action (other than, in the case of the other Funding
Secured Creditors, with the Security Trustee's prior written consent)
which would be likely to lead to the Funding Secured Creditors or the
Security Trustee becoming a mortgagee or creditor in possession in
respect of any property referred to in this Deed. The Security Trustee,
in its absolute discretion, may at any time, serve a written notice on
the Funding Secured Creditors requiring the Funding Secured Creditors
from the date such notice is served to obtain the Security Trustee's
prior written consent before taking any action which would be likely to
lead to the Funding Secured Creditors or the Security Trustee becoming a
mortgagee or creditor in possession in respect of any property referred
to in this Deed.
16. EXPENSES AND INDEMNITY
16.1 EXPENSES
Funding covenants with the Security Trustee to reimburse or pay to the
Security Trustee and any Receiver of Funding (on the basis of a full
indemnity) the amount of all costs (including legal costs), charges and
expenses (including insurance premiums) properly incurred or sustained
by the Security Trustee or the Receiver (including, for the avoidance of
doubt, any such costs, charges and expenses arising from any act or
omission of, or proceedings involving, any third person) in connection
with:
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(a) the exercise or the attempted exercise, or the consideration of
the exercise by or on behalf of the Security Trustee or the
Receiver of any of the powers of the Security Trustee or the
Receiver, and the enforcement, preservation or attempted
preservation of this Deed (or any of the charges contained in or
granted pursuant to it) or any of the Funding Charged Property
or any other action taken by or on behalf of the Security
Trustee or the Receiver with a view to or in connection with the
recovery by the Security Trustee or the Receiver of the Funding
Secured Obligations; or
(b) the carrying out of any other act or matter which the Security
Trustee or the Receiver may reasonably consider to be necessary
for the preservation or benefit of the Funding Charged Property
and which Funding is required to do pursuant to any of the
Transaction Documents to which it is a party but which it has
not done.
16.2 INDEMNITY
Funding agrees to indemnify the Security Trustee and the Receiver of
Funding, on an after-Tax basis, from and against all losses, actions,
claims, costs (including legal costs), expenses (including insurance
premiums), demands and liabilities whether in contract, tort, delict or
otherwise now or hereafter properly sustained or incurred by the
Security Trustee or the Receiver or by any person for whose liability,
act or omission the Security Trustee or the Receiver may be answerable,
in connection with anything done or omitted to be done under or pursuant
to this Deed (including without limitation in accordance with CLAUSE 8.7
(Petition for Administration) or any other Transaction Document to which
such entity is a party, or in the exercise or purported exercise of the
powers herein contained, or occasioned by any breach by Funding of any
of its covenants or other obligations to the Security Trustee, or in
consequence of any payment in respect of the Funding Secured Obligations
(whether made by Funding, a relevant Issuer or a third person) being
declared void or impeached for any reason whatsoever, save where the
same arises as the result of the fraud, negligence, wilful misconduct or
wilful default or breach of the terms of this Deed by the Security
Trustee or the Receiver or their respective officers or employees.
16.3 TAXES
All sums payable by Funding under this Deed are deemed to be exclusive
of any amount in respect of VAT. If, pursuant to any provision of this
Deed, 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.
If the Security Trustee or the Receiver of Funding shall make any
payment for a taxable or deemed taxable supply to it pursuant to or in
connection with this Deed and any such payment shall bear VAT which is
Irrecoverable VAT, Funding shall indemnify the Security Trustee or the
Receiver of Funding (as the case may be) on demand for an amount equal
to such Irrecoverable VAT so far as it has not been taken into account
in computing the amount of any payment made by Funding to the Security
Trustee or the Receiver of Funding under any other indemnity contained
in this Deed.
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16.4 INTEREST
All sums payable by Funding under CLAUSE 16.1 (Expenses), CLAUSE 16.2
(Indemnity), CLAUSE 16.3 (Taxes) or CLAUSE 26 (Remuneration of the
Security Trustee) shall be payable on demand and:
(a) in the case of payments actually made by the Security Trustee
prior to the demand, shall carry interest at the rate per annum,
which is one per cent. per annum higher than the mean base rate
from time to time of the Reference Banks from the date of the
same being demanded to the date of actual payment (provided that
such demand shall be made on a Business Day, otherwise interest
shall be payable from the second Business Day following the date
of the demand to the date of actual payment); and
(b) in all other cases, shall carry interest at such rate from the
date 14 days after the date of the same being demanded or (where
the demand specifies that payment by the Security Trustee will
be made on an earlier date provided such earlier date is a
Business Day) from such earlier date (not being earlier than the
date of such demand) to the date of actual payment.
Any amounts payable pursuant to CLAUSES 26.1 (Remuneration) and 26.2
(Increased Remuneration) shall carry interest at the aforesaid rate from
the due date thereof to the date of actual payment.
17. PROTECTION OF CHARGES
Funding further covenants with and undertakes to the Security Trustee
from time to time (notwithstanding that the Security Trustee may not
have served an Intercompany Loan Enforcement Notice) upon demand to
execute, at Funding's cost, any document or do any act or thing (other
than any amendment hereto) which the Security Trustee or the Receiver
may specify acting reasonably:
(a) with a view to registering or perfecting any charge or security
created or intended to be created by or pursuant to this Deed
(including the perfecting of the conversion of any floating
charge to a fixed charge subject to CLAUSES 18.1 (Notice) or
18.2 (Automatic Crystallisation)) subject to first having
obtained all necessary consents; or
(b) with a view to facilitating the exercise or the proposed
exercise of any of their powers or duties or the realisation of
any of the Funding Charged Property; or
(c) with a view to protecting the Encumbrances created by or
pursuant to this Deed.
18. CRYSTALLISATION
18.1 NOTICE
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charges created by this Deed or any
other right the Security Trustee may have, the Security Trustee may, at
any time if:
(a) a Funding Potential Intercompany Loan Event of Default has
occurred; or
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(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) if any circumstance shall occur which in the reasonable opinion
of the Security Trustee prejudices, imperils, threatens or is
likely to do any of the foregoing in respect of the security
created by this Deed,
by notice in writing to Funding declare that the floating charges hereby
created shall be converted into first specific fixed charges over the
undertaking, property and assets as the Security Trustee considers to be
in jeopardy and as the Security Trustee may specify in the notice.
18.2 AUTOMATIC CRYSTALLISATION
In addition and without prejudice to any other event resulting in a
crystallisation of the floating charge contained herein shall
automatically be converted into fixed charges over:
(a) all property, assets or undertaking of Funding, subject to the
floating charge, if and when:
(i) any of the events referred to in CLAUSE 15.5
(Insolvency) or CLAUSE 15.6 (Creditors Process) of the
Intercompany Loan Terms and Conditions occurs; or
(ii) a Intercompany Loan Event of Default occurs; and
(b) any property, assets or undertaking of Funding, which become
subject to an Encumbrance in favour of any person other than the
Security Trustee or which is/are the subject of a sale, transfer
or other disposition, in either case, contrary to the covenants
and undertakings contained in the Transaction Documents,
immediately prior to such Encumbrance arising or such sale,
transfer or other disposition being made.
18.3 FAILURE OF PETITION FOR ADMINISTRATION OR WINDING-UP
If any petition for the administration or winding-up of Funding is
dismissed or withdrawn or a resolution for winding-up Funding is not
passed by the necessary majority, then without prejudice to any rights
exercisable otherwise than in consequence of the presentation of such
petition or resolution and subject to anything done in the meantime in
pursuance of the powers given by this Deed and subject to the provisions
contained in this Deed as to costs charges and expenses incurred and
payments made, possession of the Funding Charged Property will be
restored to Funding, and Funding and all persons concerned will be
remitted to their original rights provided that the Security Trustee is
satisfied that its security position at that time is not materially
different to that as at the date of this Deed.
19. POWER OF ATTORNEY, ETC.
19.1 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. For the
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avoidance of doubt, the Security Trustee confirms that it may only
exercise the powers conferred under the Power of Attorney in the
circumstances set out in PARAGRAPH 1 of the Power of Attorney.
19.2 FUNDING CHARGED PROPERTY ON TRUST
To the extent permitted to do so under the Transaction Documents, for
the purpose of giving effect to this Deed, Funding hereby declares that,
after service of an Intercompany Loan Enforcement Notice, it will hold
all of its Funding Charged Property (subject to the right of redemption)
upon trust to convey, assign or otherwise deal with such Funding Charged
Property in such manner and to such person as the Security Trustee shall
direct pursuant to this Deed, and declares that it shall be lawful for
the Security Trustee to appoint a new trustee or trustees of the Funding
Charged Property in place of Funding.
20. OTHER SECURITY, ETC.
20.1 NO MERGER
The charges contained in or created pursuant to this Deed are in
addition to, and shall neither be merged in, nor in any way exclude or
prejudice any other Encumbrance, right of recourse, set off or other
right whatsoever which the Security Trustee or any Funding Secured
Creditor may now or at any time hereafter hold or have (or would apart
from this Deed or any charge contained or created pursuant to this Deed
hold or have) as regards any of Funding or any other person in respect
of the Funding Secured Obligations, and neither the Security Trustee nor
any Funding Secured Creditor shall be under any obligation to take any
steps to call in or to enforce any security for the Funding Secured
Obligations, and shall not be liable to Funding for any loss arising
from any omission on the part of the Security Trustee or any Funding
Secured Creditor to take any such steps or for the manner in which the
Security Trustee or any Funding Secured Creditor shall enforce or
refrain from enforcing any such security.
20.2 CONSOLIDATION
Section 93 of the 1925 Act shall not apply in relation to any of the
charges contained in this Deed.
20.3 RULING OFF
If the Security Trustee receives notice of any Encumbrance affecting the
Funding Charged Property in contravention of the provisions hereof:
(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.
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20.4 CHANGE OF NAME, ETC.
This Deed shall remain valid and enforceable notwithstanding any change
in the name, composition or constitution of the Security Trustee or
Funding or any amalgamation or consolidation by the Security Trustee or
Funding, with any other corporation (whether, in the case of Funding,
permitted under the Transaction Documents or not).
21. AVOIDANCE OF PAYMENTS
21.1 NO RELEASE
No assurance, security or payment which may be avoided or adjusted under
the law, including under any enactment relating to bankruptcy or
insolvency and no release, settlement or discharge given or made by the
Security Trustee or any Funding Secured Creditor on the faith of any
such assurance, security or payment, shall prejudice or affect the right
of the Security Trustee or any Funding Secured Creditor to recover the
Funding Secured Obligations from Funding (including any monies which it
may be compelled to pay or refund under the provisions of the Insolvency
Xxx 0000 and any costs payable by it pursuant to or otherwise incurred
in connection therewith) or to enforce the charges contained in this
Deed to the full extent of the Funding Secured Obligations.
21.2 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 (and production of a solvency
certificate of a duly authorised officer of Funding shall be prima facie
evidence of the solvency of the relevant company) as at the date of any
payment made by that company to the Security Trustee 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 Deed 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.
22. 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
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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
may in its absolute discretion estimate the amount of any liability of
Funding which is contingent or unascertained and 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.
23. EXECUTION OF DOCUMENTS
Any document required to be executed as a deed by the Security Trustee
under or in connection with this Deed shall be validly executed if
executed as a deed by a duly authorised attorney of the Security
Trustee.
24. PROVISIONS SUPPLEMENTAL TO XXX XXXXXXX XXX 0000
24.1 POWERS OF SECURITY TRUSTEE
By way of supplement to the Trustee Xxx 0000 it is expressly declared as
follows:
(a) the Security Trustee may in relation to this Deed or any of the
other Transaction Documents 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;
(b) any such opinion, advice, certificate or information may be sent
or obtained by letter, telegram, telex, 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;
(c) the Security Trustee shall (save as expressly otherwise provided
in this Deed or any of the other Transaction Documents) as
regards all rights, powers, authorities and discretions vested
in it by this Deed or any of the other Transaction Documents, or
by operation of law, have absolute and uncontrolled discretion
as to the exercise or non-exercise thereof;
(d) the Security Trustee shall be at liberty to place this Deed and
all deeds and other documents relating to this Deed with any
bank or banking company, or lawyer or firm of lawyers believed
by it to be of good repute, in any part of the world, and the
Security Trustee shall not be responsible for or be required to
insure against any loss incurred in connection with any such
deposit and Funding shall pay all sums required to be paid on
account of or in respect of any such deposit;
(e) the Security Trustee may, in the conduct of its trust business,
instead of acting personally, employ and pay an agent 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 on the part of any person
31
appointed by it in good faith hereunder or be bound to supervise
the proceedings or acts of any such persons;
(f) where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another
it shall (unless otherwise provided by this Deed 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 under this
PARAGRAPH (f);
(g) subject to CLAUSE 25.5 (Consent of Security Trustee), any
consent given by the Security Trustee for the purposes of this
Deed 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, notwithstanding anything to the
contrary contained in this Deed or any of the other Transaction
Documents, may be given retrospectively;
(h) the Security Trustee shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of Funding
or any other person in respect of every matter and circumstance
for which a certificate is expressly provided for under this
Deed or the other Transaction Documents and to call for and rely
upon a certificate of Funding or any other person reasonably
believed by it to be genuine 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 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;
(i) the Security Trustee shall be entitled to rely upon any
document, reasonably believed by it to be genuine, 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;
(j) 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 it shall be proved that the
Security Trustee was negligent in ascertaining the pertinent
facts;
(k) no provision of this Deed or any other Transaction Document
shall require the Security Trustee to do anything which may be
illegal or contrary to applicable law or regulation or expend or
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
Deed or any other 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; and
(l) the Security Trustee shall not (unless and to the extent ordered
to do so by a court of competent jurisdiction) be required to
disclose to any Funding Secured Creditor any
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information made available to the Security Trustee by Funding in
connection with the trusts of this Deed or the Transaction
Documents and no Funding Secured Creditor shall be entitled to
take any action to obtain from the Security Trustee any such
information.
24.2 REPRESENTATIONS AND WARRANTIES, ETC.
The Security Trustee shall not be responsible for any recitals or
statements or warranties or representations of any party (other than the
Security Trustee) contained herein or in any other Transaction Document
or any other document entered into in connection therewith and shall
assume the accuracy and correctness thereof and shall not be responsible
for the execution, legality, effectiveness, adequacy, genuineness,
validity or enforceability or admissibility in evidence of any such
agreement or other document or any trust or security thereby constituted
or evidenced. 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 the title of Funding to
the Funding Charged Property or any part thereof from time to time
whether or not any default or failure is or was known to the Security
Trustee or might be, or might have been, discovered upon examination,
inquiry or investigation and whether or not capable of remedy.
Notwithstanding the generality of the foregoing, each Funding Secured
Creditor shall be solely responsible for making its own independent
appraisal of and investigation into the financial condition,
creditworthiness, condition, affairs, status and nature of Funding, and
the Security Trustee shall not at any time have any responsibility for
the same and each Funding Secured Creditor shall not rely on the
Security Trustee in respect thereof.
24.3 PERFECTION
The Security Trustee shall not be bound to give notice to any person of
the execution of this Deed nor shall it be liable for any failure,
omission or defect in perfecting the security intended to be constituted
hereby including, without prejudice to the generality of the foregoing:
(a) failure to obtain any licence, consent or other authority for
the execution of the same;
(b) failure to register the same in accordance with the provisions
of any of the documents of title of Funding to any of the
Funding Charged Property; and
(c) failure to effect or procure registration of or otherwise
protect any of the Transaction Documents by registering the same
under any registration laws in any territory, or by registering
any notice, caution or other entry prescribed by or pursuant to
the provisions of the said laws.
24.4 ENFORCEABILITY, ETC.
The Security Trustee shall not be responsible for the genuineness,
validity or effectiveness of any of the Transaction Documents or any
other documents entered into in connection therewith or any other
document or any obligations or rights created or purported to be created
thereby or pursuant thereto or any security or the priority thereof
constituted or purported to be constituted by or pursuant to this Deed
or any of the other Transaction Documents, nor shall it be responsible
or liable to any person because of any invalidity of any provision 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)
33
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:
(a) the nature, status, creditworthiness or solvency of Funding;
(b) the execution, legality, validity, adequacy, admissibility in
evidence or enforceability of this Deed or any other Transaction
Document relating to the Funding Charged Property or any other
document entered into in connection therewith;
(c) the registration, filing, protection or perfection of any
security relating to this Deed or the other Transaction
Documents relating to the Funding Charged Property or the
priority of the security thereby created whether in respect of
any initial advance or any subsequent advance or any other sums
or liabilities;
(d) the scope or accuracy of any representations, warranties or
statements made by or on behalf of Funding or any other person
or entity at any time provided in any Transaction Document
relating to the Funding Charged Property or in any document
entered into in connection therewith;
(e) the performance or observance by Funding or any other person
with any provisions of this Deed or any other Transaction
Document relating to the Funding Charged Property 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
any waiver or consent which has at any time been granted in
relation to any of the foregoing;
(f) 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 the Funding Charged
Property;
(g) the title of Funding to any of the Funding Charged Property;
(h) 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
this Deed or other documents entered into in connection
herewith;
(i) 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 this Deed or any other document;
(j) the failure to prevent, whether by act or omission, a fixed
charge granted under this Deed from becoming a floating charge;
or
(k) any other matter or thing relating to or in any way connected
with this Deed or the Funding Charged Property or any document
entered into in connection therewith whether or not similar to
the foregoing.
34
24.5 NO SUPERVISION
The Security Trustee shall be under no obligation to monitor or
supervise the functions of the Account Bank under the Bank Account
Agreement or of any other person under or pursuant to any of the other
Transaction Documents.
24.6 NO LIABILITY
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 Deed or under any of the
other Transaction Documents save where the same arises as a result of
the Security Trustee's fraud, wilful default or negligence.
24.7 CONCLUSIVE AND BINDING DETERMINATIONS
The Security Trustee as between itself and the Funding Secured Creditors
shall have full power to determine all questions and doubts arising in
relation to any of the provisions of this Deed and the other 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.
24.8 USE OF PROCEEDS
The Security Trustee shall not be responsible for the receipt or
application by Funding of the proceeds of any Term Advance or any
Start-up Loan.
24.9 NO INDEMNITY
None of the provisions of this Deed 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 Deed, having regard to the
provisions of this Deed and any of the other Transaction Documents to
which the Security Trustee is a party 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 negligence, default,
breach of duty or breach of trust of which it may be guilty in relation
to its duties under this Deed.
24.10 DEFICIENCY OR ADDITIONAL PAYMENT
The Security Trustee shall have no responsibility whatsoever to any
Funding Secured Creditor as regards any deficiency or additional
payment, as the case may be, 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.
25. SUPPLEMENTAL PROVISIONS REGARDING THE SECURITY TRUSTEE
25.1 ASSUMPTION OF NO DEFAULT
Except as herein otherwise expressly provided, the Security Trustee
shall be and is hereby authorised to assume without enquiry, and it is
hereby declared to be the intention of the
35
Security Trustee that it shall assume without enquiry, that Funding and
each of the other parties thereto is duly performing and observing all
the covenants and provisions contained in this Deed and the other
Transaction Documents and on its part to be performed and observed and
that no event has occurred which constitutes a Potential Intercompany
Loan Event of Default or Intercompany Loan Event of Default or which
would cause a right or remedy to become excisable, whether by Funding or
the Security Trustee, under or in respect of any of the Transaction
Documents.
25.2 DELEGATION
The Security Trustee may, in the execution of all or any of the trusts,
powers, authorities and discretions vested in it by this Deed or any of
the other 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
Deed or any of the other 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 or any of them,
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 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.
25.3 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 Funding, an Issuer, Holdings or any subsidiary of
Holdings, an Issuer or any other party to the 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 Funding, any Issuer, Holdings or any subsidiary of
Holdings, any Issuer or any other party to the 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 Funding, any Issuer, Holdings or any
subsidiary of Holdings, any Issuer or any other party to the Transaction
Documents or any contract of banking or insurance with Funding, any
Issuer, Holdings or any subsidiary of Holdings, any Issuer or any other
party to the Transaction Documents and neither the Security Trustee nor
any such director, officer or employee shall be accountable to any
Funding Secured Creditor or to Funding or any Issuer 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.
36
25.4 ADDITIONAL POWERS
The powers conferred by this Deed upon the Security Trustee shall be in
addition to any powers which may from time to time be vested in it by
general law.
25.5 DUTIES AND RESPONSIBILITIES OF SECURITY TRUSTEE
The Security Trustee has no duties or responsibilities except those
expressly set out in this Deed or in the Transaction Documents.
25.6 CONSENT OF SECURITY TRUSTEE
If a request is made to the Security Trustee to give its consent to any
event, matter or thing, then:
(a) if any Transaction Document specifies that the Security Trustee
is required to give its consent to that event, matter or thing
if certain specified conditions are satisfied in relation to
that event, matter or thing, then the Security Trustee shall
give its consent to that event, matter or thing upon being
satisfied acting reasonably that those specified conditions have
been satisfied; and
(b) in any other case, the Security Trustee may give its consent to
that event, matter or thing if the event, matter or thing is
not, in its opinion acting reasonably, materially prejudicial to
the interests of the Funding Secured Creditors.
25.7 INTERESTS OF FUNDING SECURED CREDITORS
Where the Security Trustee is required to have regard to the interests
of any Funding Secured Creditor, the Security Trustee may consult with
such Funding Secured Creditor and may rely on the opinion of such
Funding Secured Creditor as to whether any act, matter or thing is or is
not in the interests of, or materially prejudicial to the interests of,
such Funding Secured Creditor.
25.8 MODIFICATION TO TRANSACTION DOCUMENTS
The Security Trustee may from time to time and at any time without any
consent or sanction of the Funding Secured Creditors concur with any
person in making or sanctioning any modification:
(a) to any of the Transaction Documents which in the opinion of the
Security Trustee it may be expedient to make, provided that the
Security Trustee is of the opinion acting reasonably that such
modification will not be materially prejudicial to the interests
of the Funding Secured Creditors or, if it is not of that
opinion in relation to any Funding Secured Creditor, such
Funding Secured Creditor has given its written consent to such
modification;
(b) to any of the Transaction Documents which in the Security
Trustee's opinion is made to correct a manifest error or is of a
formal, minor or technical nature;
(c) to any of the Transaction Documents provided the Rating Agencies
confirm that as a result of such modification there will not be
any adverse effect on the then current ratings by the Rating
Agencies of the existing Notes of any Issuer; or
37
(d) to any of the Transaction Documents which it may be necessary to
make or which are required by the Rating Agencies in respect of
any Additional Liquidity Facility Agreement that Funding is
required to enter into pursuant to CLAUSE 10.6 of this Deed.
Any such modification shall be binding on the Funding Secured Creditors
and, unless the Security Trustee otherwise agrees, notice thereof shall
be given by Funding to the Funding Secured Creditors as soon as
practicable thereafter. Each of the Funding Secured Creditors agrees
from time to time to do and perform such other and further acts and
execute and deliver any and all such other instruments as may be
required by law or requested by the other party at the other party's
expense to establish, maintain and protect the rights and remedies of
the other party and carry out and effect the intent and purpose of this
CLAUSE 25.7 (Modifications to Transaction Documents).
25.9 AUTHORISATION OR WAIVER OF BREACH
Subject to CLAUSE 15.10 (Acceleration) of the Intercompany Loan Terms
and Conditions, the Security Trustee may, without the consent of the
Funding Secured Creditors, without prejudice to its right in respect of
any further or other breach, from time to time and at any time, but only
if and in so far as in its opinion the interests of the Funding Secured
Creditors will not be materially prejudiced thereby or, if it is not of
that opinion acting reasonably in relation to any Funding Secured
Creditor, such Funding Secured Creditor has given its written consent
thereto, authorise or waive, on such terms and conditions (if any) as
shall seem expedient to it, any proposed or actual breach of any of the
covenants or provisions contained in or arising pursuant to any of the
Transaction Documents. Any such authorisation or waiver shall be binding
on the Funding Secured Creditors and, unless the Security Trustee
otherwise agrees, notice thereof shall be given by Funding to the
Funding Secured Creditors as soon as practicable thereafter.
26. REMUNERATION OF THE SECURITY TRUSTEE
26.1 REMUNERATION
(a) Funding shall (subject as hereinafter provided) pay to the Security
Trustee annually a fee of such amount and payable on such dates as shall
from time to time be agreed by Funding and the Security Trustee. All
such remuneration shall be payable 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).
(b) Funding shall pay to the Security Trustee an amount equal to the amount
of any VAT chargeable in respect of its remuneration under this Deed
subject to the Security Trustee's issuing to Funding a proper VAT
invoice in respect thereof.
26.2 INCREASED REMUNERATION
In the event of a Intercompany Loan Event of Default or Potential
Intercompany Loan Event of Default occurring or in the event of the
Security Trustee finding it expedient or being required to undertake any
duties outside the scope of the normal duties of the Security
38
Trustee under this Deed, the rate of remuneration in force immediately
prior thereto shall be increased by such amount as shall be agreed
between Funding and the Security Trustee, such increased remuneration to
be calculated from such date as shall be agreed as aforesaid. Such
remuneration shall accrue from day to day and be payable up to and
including the date when all 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).
26.3 DISPUTES
In the event of the Security Trustee and Funding failing to agree upon
the amount of any remuneration from time to time pursuant to CLAUSE 26.1
(Remuneration) or to agree in a case to which CLAUSE 26.2 (Increased
Remuneration) above applies upon whether such duties are outside the
scope of the normal duties of the Security Trustee hereunder or upon the
amount of such additional remuneration, such matters 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 by the President for the time being of the Law
Society of England and Wales, the expenses being involved in such
nomination and the fees of such merchant bank being payable by Funding
and the Security Trustee in such proportion as the merchant bank shall
direct, and the decision of any such merchant bank shall be final and
binding on Funding and the Security Trustee.
26.4 EXPENSES
In addition to remuneration hereunder, Funding shall on written request,
pay (on an indemnity basis) all other costs, charges and expenses which
the Security Trustee may properly incur in relation to the negotiation,
preparation and execution of, the exercise of its powers and the
performance of its duties under, and in any other manner in relation to,
this Deed and any of the other Transaction Documents to which the
Security Trustee is a party including but not limited to travelling and
legal expenses and any stamp, issue, registration, documentary and other
Taxes (other than Taxes on its income, profits or gains) or duties paid
or payable by the Security Trustee in connection with any action taken
or contemplated by or on behalf of the Security Trustee for enforcing,
or resolving any doubt concerning, or for any other purpose in relation
to, this Deed or any of the other Transaction Documents.
26.5 INDEMNITY
Without prejudice to the right of indemnity by law given to trustees,
Funding shall indemnify the Security Trustee, on an after Tax basis, in
respect of all proceedings (including claims and liabilities in respect
of taxes other than on its own overall net income), claims and demands
and all costs, charges, expenses (including, without prejudice to the
generality of the foregoing, legal and travelling 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 Deed and any of the
other 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 Deed and any of the
other Transaction Documents to which the Security Trustee is a party
shall be entitled to be indemnified out of the Funding Charged Property
in respect thereof, save where the same arises as a result of the fraud,
negligence or wilful default by the Security Trustee or
39
breach by the Security Trustee of the terms of this Deed, its officers
or employees. The Security Trustee shall not be entitled to be
indemnified twice in respect of the same matter pursuant to this Clause
and the indemnity contained in CLAUSE 16.2 (Indemnity) of this Deed.
26.6 SURVIVAL
Unless otherwise specifically stated in any discharge of this Deed, the
provisions of CLAUSES 16 (Expenses and Indemnity) and 26 (Remuneration
of the Security Trustee) shall continue in full force and effect
notwithstanding such discharge.
26.7 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
Deed; and
(b) the execution and delivery of this Deed and documents executed
pursuant hereto and the other Funding Agreements (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).
27. APPOINTMENT OF NEW SECURITY TRUSTEE AND REMOVAL OF SECURITY TRUSTEE
27.1 POWERS OF FUNDING
(a) 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 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. 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.
(b) Any new Security Trustee must (i) meet the requirements of section
26(a)(1) of the US Investment Company Act of 1940; (ii) not be an
affiliate (as defined in Rule 405 of the US 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 US
Investment Company Act of 1940.
27.2 POWERS OF SECURITY TRUSTEE
Notwithstanding the provisions of CLAUSE 27.1 (Powers 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:
40
(a) if the Security Trustee reasonably considers such appointment to
be in the interests of the Funding Secured Creditors (or any of
them); or
(b) for the purposes of conforming to any legal requirement,
restrictions or conditions 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 of either a judgment already
obtained or any of the provisions of this Deed or any of the
other Transaction Documents to which the Security Trustee is a
party or obligations arising pursuant thereto or any of the
security constituted by or pursuant to this Deed.
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 Deed or any of the other Transaction Documents 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 Deed or any of the other 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 Deed be treated as costs,
charges and expenses incurred by the Security Trustee.
27.3 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 Deed and any of the
other Transaction Documents in the Security Trustee generally.
28. RETIREMENT OF SECURITY TRUSTEE
Any trustee for the time being of this Deed may retire at any time upon
giving not less than three months' prior notice in writing to Funding
without assigning any reason therefor and without being responsible for
any costs resulting from such retirement. The retirement or removal of
any trustee shall not become effective unless there remains at least one
trustee hereof being a trust corporation in office upon such retirement
or removal. Funding covenants that, in the event of a trustee (being a
sole trustee or the only trust corporation) giving notice under this
Clause or being removed as referred to in CLAUSE 27.1 (Powers of
Funding) it shall use its best endeavours to procure a new 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 Deed). 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 such successor is acceptable to the
Rating Agencies and will agree to the terms of this Deed).
41
29. NOTICES AND DEMANDS
29.1 SERVICE OF NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent to the addresses given in
CLAUSE 29.2 by prepaid first class post, by hand or facsimile
transmission and shall be deemed to be given (in the case of facsimile
transmission) when despatched, (where delivered by hand) on the day of
delivery if delivered before 17.00 hours on a Business Day or on the
next Business Day if delivered thereafter or on a day which is not a
Business Day or (in the case of first class post) when it would be
received in the ordinary course of the post.
29.2 ADDRESS
The addresses referred to in this CLAUSE 29.2 (Address) are as follows:
(a) in the case of Funding, to Xxxxxx Funding Limited c/o Abbey
National House, 2 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX
(facsimile number 020 7612 4319) for the attention of The
Company Secretary with a copy to Abbey National plc, c/o Abbey
House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx, XX0 0XX
(facsimile number 01908 343 019) for the attention of the
Securitisation Team, Business Relationship Management;
(b) in the case of the First Issuer, Second Issuer, Third Issuer,
Fourth Issuer, Fifth Issuer and Sixth Issuer, to, respectively:
Xxxxxx Financing (No. 1) PLC, Xxxxxx Financing (No. 2) PLC,
Xxxxxx Financing (No. 3) PLC, Xxxxxx Financing (No. 4) PLC,
Xxxxxx Financing (No. 5) PLC or Xxxxxx Financing (No. 6) PLC,
c/o Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx
XX0 0XX (facsimile number (00) 00 0000 0000) for the attention
of the Company Secretary with a copy to Abbey National plc, c/o
Abbey House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0
0XX (facsimile number (00) 0000 000 000) for the attention of
Securitisation Team, Business Relationship Management;
(c) in the case of the Mortgages Trustee, to Xxxxxx Trustees Limited
to x/x Xxxxx Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx,
Xxxxxx XX0 0XX (facsimile number 020 7612 4319) for the
attention of The Company Secretary with a copy to Abbey National
plc, c/o Abbey House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxxx, XX0 0XX (facsimile number 01908 343 019) for the
attention of the Securitisation Team, Business Relationship
Management;
(d) in the case of the Cash Manager, to Abbey National plc, Abbey
National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX
(facsimile number 020 7612 4319) for the attention of The
Company Secretary with a copy to Abbey National plc, c/o Abbey
House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx, XX0 0XX
(facsimile number 01908 343 019) for the attention of
Securitisation Team, Business Relationship Management;
(e) in the case of the Account Bank, to Abbey National plc, 00
Xxxxxxx Xxxxxx, Xxxxxx X0 0XX (facsimile number 020 7612 5088)
for the attention of Head of Subsidiary Banking;
42
(f) in the case of the Security Trustee, to JPMorgan Chase Bank,
Trinity Tower, 9 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX attention
Manager, Trust Administration (facsimile number 020 7777 5410);
(g) in the case of the First Start-Up Loan Provider or Second
Start-Up Loan Provider to Citibank N.A., Xxxxxx Xxxxxx, 000
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020 7500 2262) for the
attention of Xxxxx Xxxxxxxxxx;
(h) in the case of the Third Start-Up Loan Provider, Fourth Start-Up
Loan Provider, Fifth Start-Up Loan Provider or Sixth Start-Up
Loan Provider to Abbey National plc, Abbey National House, 0
Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (facsimile number
(00) 00 0000 0000) for the attention of the Company Secretary;
(i) in the case of the Corporate Services Provider, to SPV
Management Limited, 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number 020 7220 7819) for the attention of Xxxxxx XxXxxxxxx;
(j) in the case of the Funding Liquidity Facility Provider, to The
Royal Bank of Scotland plc, Xxxxxxxxxx Xxxxxx, 000-000 Xxxxxxx,
Xxxxxx XX0X 2TH (facsimile number 020 7427 9915) for the
attention of Xxxx Riddlesdell/Xxxxxx Xxxxx;
(k) in the case of the Funding Swap Provider, to Abbey National
Treasury Service PLC, Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (facsimile no.: 020 7612 4319) for
the attention of the Company Secretary;
(l) in the case of Moody's, to Xxxxx'x Investor Services, 0 Xxxxxxx
Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number 020 7772
5400) for the attention of [Xxxx Xxxxxxxxx], Asset Backed
Finance;
(m) in the case of S&P, to Standard & Poor's, Xxxxxx Xxxxx,00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020 7826
3598) for the attention of the Structured Finance Surveillance
Group; and
(n) in the case of Fitch, to Fitch Ratings Limited, Xxxxx Xxxxx, 0
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number: 020 7417 6262)
for the attention of European Structured Finance,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this CLAUSE 29.
30. FURTHER PROVISIONS
30.1 EVIDENCE OF INDEBTEDNESS
In any action, proceedings or claim relating to this Deed or the charges
contained in this Deed, 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.
43
30.2 RIGHTS CUMULATIVE, WAIVERS
The respective rights of the Security Trustee, the Funding Secured
Creditors and any Receiver are cumulative, and may be exercised as often
as they consider appropriate and are in addition to their respective
rights under the general law. The respective rights of the Security
Trustee, the Funding Secured Creditors and any Receiver in relation to
this Deed (whether arising under this Deed or under the general law)
shall not be capable of being waived or varied otherwise than by express
waiver or variation in writing and, in particular, any failure to
exercise or any delay in exercising any such rights shall not operate as
a variation or waiver of that or any other such right; any defective or
partial exercise of such rights shall not preclude any other or further
exercise of that or any other such right; and no act or course of
conduct or negotiation on their part or on their behalf shall in any way
preclude them from exercising any such right or constitute a suspension
or any variation of any such right.
30.3 INVALIDITY OF ANY PROVISION
If any of the provisions of this Deed become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
30.4 LIABILITY
All the liabilities and obligations of Funding under or by virtue of
this Deed shall not be impaired by:
(a) any failure of this Deed 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 Deed 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.
30.5 SEVERABILITY
Any provision of this Deed which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, each of Funding hereby waives any provision
of law but only to the extent permitted by law which renders any
provision of this Deed prohibited or unenforceable in any respect.
44
30.6 VARIATION
No variation of any provision(s) of this Deed shall be effective unless
it is in writing and signed by (or by a person duly authorised by) each
of the parties hereto.
30.7 COUNTERPARTS
This Deed may be signed (manually or by facsimile) and delivered in more
than one counterpart all of which, taken together, shall constitute one
and the same Deed.
30.8 FUNDING SECURED CREDITORS
Each Funding Secured Creditor shall be bound by the provisions of this
Deed as if it contained covenants by each Funding Secured Creditor in
favour of the Security Trustee and every other Funding Secured Creditor
to observe and be bound by all the provisions of this Deed expressed to
apply to Funding Secured Creditors.
30.9 ASSIGNMENT
None of the Funding Secured Creditors may assign, encumber or transfer
all or any part of its rights or benefits and/or transfer its
obligations under this Deed without the prior written consent of the
Security Trustee, save that each relevant Issuer may assign its rights
under this Deed without such consent to the Security Trustee under the
First Issuer Deed of Charge or the issuer deed of charge applicable to
the New Issuer, as the case may be.
30.10 EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Deed do not intend that any term of this Deed should
be enforced, by virtue of the Contracts (Rights of Third Parties) Xxx
0000, by any person who is not a party to this Deed.
45
31. CHOICE OF LAW
31.1 GOVERNING LAW
This Deed is governed by and shall be construed in accordance with
English law (provided that CLAUSES 3.8 (Intimation to Mortgages Trustee)
and 12.8 (Scottish Trust Property) and any terms hereof which are
particular to the law of Scotland shall be governed by and construed in
accordance with Scots law).
DULY EXECUTED AND DELIVERED AS A DEED by each of the parties hereto or on its
behalf on the date appearing on page 1.
46
FUNDING
EXECUTED as a DEED by )
XXXXXX FUNDING )
LIMITED acting by two )
directors/a director and the secretary )
Director
Director/Secretary
FIRST ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.1) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
SECOND ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.2) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
THIRD ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.3) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
47
FOURTH ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.4) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
FIFTH ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.5) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
SIXTH ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.6) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
SELLER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
48
CASH MANAGER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
ACCOUNT BANK
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
FUNDING SWAP PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL TREASURY )
SERVICES PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
SPV MANAGEMENT LIMITED )
acting by two Directors/a director )
and the secretary )
Director
Director/Secretary
49
FIRST START-UP LOAN PROVIDER
EXECUTED as a DEED by )
CITIBANK N.A., LONDON BRANCH )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address: XXX XXX XXXXXX
XXXXXX XX0X 9QQ......................................................
SECOND START-UP LOAN PROVIDER
EXECUTED as a DEED by )
CITIBANK N.A., LONDON BRANCH )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address: XXX XXX XXXXXX
XXXXXX XX0X 9QQ......................................................
THIRD START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
50
FOURTH START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
FIFTH START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
SIXTH START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
FUNDING LIQUIDITY FACILITY PROVIDER
EXECUTED as a DEED by )
THE ROYAL BANK OF )
SCOTLAND PLC )
acting by its attorney )
in the presence of )
Witness:
Name:
Address: XXX XXX XXXXXX
XXXXXX XX0X 0XX
51
SECURITY TRUSTEE
EXECUTED as a DEED by )
JPMORGAN CHASE )
BANK, LONDON BRANCH )
acting by its attorney )
in the presence of: )
and the secretary )
Witness:
Name:
Address: XXX XXX XXXXXX
XXXXXX XX0X 9QQ..................................................
EXECUTED as a DEED by )
XXXXXX TRUSTEES LIMITED )
acting by its attorney )
in the presence of: )
and the secretary )
Witness:
Name:
Address:
52
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [__], 2002 by Xxxxxx Funding Limited
(registered in England and Wales No. 3982428) whose registered office is Abbey
National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the
"PRINCIPAL").
WHEREAS
(1) By virtue of a Deed (the "FUNDING DEED OF CHARGE") dated 26th July, 2000
between Xxxxxx Funding Limited, Xxxxxx Financing (No. 1) PLC, the
Corporate Services Provider, the Account Bank, the Funding GIC Provider,
the Security Trustee, the Seller, the Start-Up Loan Provider, the Cash
Manager and the Funding Swap Provider, as amended and restated by a Deed
(the "AMENDED AND RESTATED FUNDING DEED OF CHARGE") dated [__], 2002
between the foregoing parties and others, 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 Amended and Restated Funding Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably and by way of security for the
performance of the covenants, conditions, obligations and undertakings
on the part of the Principal contained in the Amended and Restated
Funding Deed of Charge (and the other Transaction Documents to which the
Principal is a party from time to time) appoints JPMorgan Chase Bank,
London Branch and any other person or persons for the time being the
Security Trustee or Security Trustees of and under the Amended and
Restated Funding Deed of Charge (the "ATTORNEY") and any receiver
including any administrative receiver and any manager (the "RECEIVER")
and/or administrator (the "ADMINISTRATOR") appointed from time to time
by the Attorney or on its behalf its true and lawful attorney for and in
the Principal's name or otherwise jointly and severally to do any act
matter or thing which the Attorney, Receiver or Administrator considers
in each case to be necessary for the protection or preservation of the
Attorney's and the Funding Secured Creditors' interests and rights (as
described in the Amended and Restated Funding Deed of Charge) in and to
the Funding Charged Property or which ought to be done under the
covenants, undertakings and provisions contained in the Amended and
Restated Funding Deed of Charge and the other Transaction Documents to
which Funding is a party from time to time on or at any time after the
service of an Intercompany Loan Enforcement Notice or in any other
circumstances where the Attorney has become entitled to take any of the
steps referred to in the Amended and Restated Funding Deed of Charge
including (without limitation) any or all of the following:
(a) to do every act or thing which the Attorney, Receiver or
Administrator may deem to be necessary, proper or expedient for
fully and effectually vesting, transferring or assigning the
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
in the same manner and as fully and effectually, vesting,
transferring or charging, as the case may be, in all respects as
the Principal could have done;
53
(b) the power by writing under its hand by an officer of the
Attorney (including every Receiver appointed under the Amended
and Restated 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 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 Receiver, an Administrator or a Substitute
in the purported exercise of any power conferred by this Power of
Attorney shall for all purposes be valid and binding on the Principal
and its successors and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Receiver and/or Administrator and/or Substitute
appointed from time to time by the Attorney and their respective estates
(each 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 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
Receiver and/or Administrator and/or Substitute carried out or purported
to be carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any
Receiver or Administrator or Substitute shall properly and lawfully do
or cause to be done in and concerning the 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 ) Director
XXXXXX FUNDING LIMITED )
in the presence of: ) Director/Secretary
Signature:
Name:
Address:
54
SCHEDULE 2
FORM OF ACCESSION UNDERTAKING
THIS DEED is made on [ ]
BETWEEN
(1) XXXXXX FUNDING LIMITED (registered in England and Wales No. 3982428)
whose registered office is at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx XX0 0XX ("FUNDING");
(2) XXXXXX FINANCING (NO.1) PLC (registered in England and Wales No.
3946294) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "FIRST ISSUER");
(3) XXXXXX FINANCING (NO. 2) PLC (registered in England and Wales No.
4056122) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "SECOND ISSUER");
(4) XXXXXX FINANCING (NO. 3) PLC (registered in England and Wales No.
4154576) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "THIRD ISSUER");
(5) XXXXXX FINANCING (NO. 4) PLC (registered in England and Wales No.
4167953) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "FOURTH ISSUER");
(6) XXXXXX FINANCING (NO. 5) PLC (registered in England and Wales No.
4258785) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "FIFTH ISSUER");
(7) XXXXXX FINANCING (NO. 6) PLC (registered in England and Wales No.
4359738) whose registered office is at Abbey National House, 0 Xxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "SIXTH ISSUER");
(8) XXXXXX TRUSTEES LIMITED (registered in England and Wales No. 3982431)
whose registered office is at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the "MORTGAGES TRUSTEE");
(9) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey Xxxxxxxx Xxxxx,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX as seller (the "SELLER");
(10) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX as cash manager (the
"CASH MANAGER", which expression shall include such person and all other
persons for the time being acting as the cash manager or cash managers
pursuant to the Cash Management Agreement);
55
(11) ABBEY NATIONAL PLC, acting though its office at 00 Xxxxxxx Xxxxxx,
Xxxxxx X0 0XX as account bank (the "ACCOUNT BANK", which expression
shall include such person and all other persons for the time being
acting as the account bank or account banks to Funding pursuant to the
Bank Account Agreement);
(12) ABBEY NATIONAL TREASURY SERVICES PLC, acting through its office at Abbey
National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX (the
"FUNDING SWAP PROVIDER", which expression shall include such person and
all other persons for the time being acting as the variable rate swap
provider or providers and/or the tracker rate swap provider or providers
and/or interest rate swap provider or providers pursuant to the Funding
Swap Agreements);
(13) SPV MANAGEMENT LIMITED (registered in England and Wales No. 2548079)
whose business address is at 00 Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX (the
"CORPORATE SERVICES PROVIDER", which expression shall include such
person and all other persons for the time being acting as the corporate
service provider or corporate service providers pursuant to the
Corporate Services Agreement);
(14) CITIBANK N.A., LONDON BRANCH acting through its office at 000 Xxxxxx,
Xxxxxx XX0X 0XX as start-up loan provider pursuant to the First Start-up
Loan Agreement made on 26th July, 2000 with Funding and the Security
Trustee (the "FIRST START-UP LOAN PROVIDER") and as start-up loan
provider pursuant to the Start-up Loan Agreement made on 29th November,
2000 with Funding and the Security Trustee (the "SECOND START-UP LOAN
PROVIDER") which expressions shall respectively include such person or
all other persons for the time being acting as start-up loan provider
pursuant to the First Start-up Loan Agreement or as start-up loan
provider pursuant to the Second Start-up Loan Agreement;
(15) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX as start-up loan provider
pursuant to the Third Start-up Loan Agreement made on 23rd May, 2001
with Funding and the Security Trustee (the "THIRD START-UP LOAN
PROVIDER"), as start-up loan provider pursuant to the Fourth Start-up
Loan Agreement made on 5th July, 2001 with Funding and the Security
Trustee (the "FOURTH START-UP LOAN PROVIDER"), as start-up loan provider
to Funding pursuant to the Fifth Start-up Loan Agreement (the "FIFTH
START-UP LOAN PROVIDER") and as start-up loan provider to Funding
pursuant to the Sixth Start-up Loan Agreement (the "SIXTH START-UP LOAN
PROVIDER"),which expression shall respectively include such person or
all other persons for the time being acting as start-up loan provider
pursuant to the Third Start-up Loan Agreement, as start-up loan provider
pursuant to the Fourth Start-up Loan Agreement, as start-up loan
provider pursuant to the Fifth Start-up Loan Agreement or as start-up
loan provider pursuant to the Sixth Start-up Loan Agreement;
(16) THE ROYAL BANK OF SCOTLAND PLC, acting through its office at Xxxxxxxxxx
Xxxxxx, 000-000 Xxxxxxx, Xxxxxx XX0X 2TH as Funding Liquidity Facility
provider (the "FUNDING LIQUIDITY FACILITY PROVIDER", which expression
shall include such person and all other persons for the time being
acting as the funding liquidity facility provider pursuant to the
Funding Liquidity Facility Agreement);
(17) JPMORGAN CHASE BANK, LONDON BRANCH whose principal office is at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the "SECURITY TRUSTEE"
which expression
56
includes such person and all other persons for the time being acting as
the Security Trustee or trustees pursuant to the Amended and Restated
Funding Deed of Charge); and
(18) [Any other additional secured creditor of Funding.]
(19) [ ] (the "NEW FUNDING SECURED CREDITOR").
NOW THIS DEED WITNESSES AS FOLLOWS
WHEREAS
(A) Pursuant to the terms of a [describe agreement] (the "AGREEMENT") dated
[ ] made between Funding and the New Funding Secured Creditor, Funding
has agreed to [describe nature of the obligations of Funding under the
Agreement].
(B) Funding has agreed to provide the Security Trustee with the benefit of
the security described in the Amended and Restated Funding Deed of
Charge to secure Funding's obligations to the Funding Secured Creditors.
(C) The terms of the Amended and Restated Funding Deed of Charge permit
Funding to secure its obligations to a New Funding Secured Creditor
thereunder.
(D) The New Funding Secured Creditor has agreed to enter into this Deed to
accede to the provisions of the Amended and Restated Funding Deed of
Charge.
(E) The Funding Secured Creditors have agreed to enter into this Deed to
agree consequential charges to the Funding Priority of Payments set out
in PART I, PART II and PART III of SCHEDULE 3 of the Amended and
Restated Funding Deed of Charge as are required and any other amendment
as may be required to give effect to this Accession Undertaking.
1. INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx
and May on ___ November, 2000 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and
save where otherwise defined herein, have the same meanings in this
Agreement, including the Recitals hereto and this Agreement shall be
construed in accordance with the interpretation provisions set out in
Clause [2] of the Amended and Restated Master Definitions and
Construction Schedule.
2. REPRESENTATIONS AND WARRANTIES
2.1 The New Funding Secured Creditor hereby represents and warrants to the
Security Trustee and each of the Funding Secured Creditors in respect of
itself that as of the date of this Deed:
(a) pursuant to the terms of the Agreement, Funding has agreed to
pay to the New Funding Secured Creditor the amount (if any)
[describe in relation to the Agreement]; and
57
(b) the Agreement expressly provides that all amounts due from
Funding thereunder are to be secured by the Amended and Restated
Funding Deed of Charge.
2.2 Funding hereby represents and warrants to the Security Trustee and each
of the Funding Secured Creditors that as at the date of this Deed, the
conditions to incurring further secured Financial Indebtedness set out
in CLAUSE 2.2 (New Intercompany Loan Agreements) are satisfied.
3. ACCESSION
In consideration of the New Funding Secured Creditor being accepted as
an Funding Secured Creditor for the purposes of the Amended and Restated
Funding Deed of Charge by the parties thereto as from [date], the New
Funding Secured Creditor:
(a) confirms that as from [date], it intends to be a party to the
Amended and Restated Funding Deed of Charge as a Funding Secured
Creditor;
(b) undertakes to comply with and be bound by all of the provisions
of the Amended and Restated Master Definitions and Construction
Schedule (as the same may be amended, varied or restated from
time to time) and the Amended and Restated Funding Deed of
Charge in its capacity as a Funding Secured Creditor, as if it
had been an original party thereto;
(c) undertakes to perform comply with and be bound by all of the
provisions of the Amended and Restated Funding Deed of Charge in
its capacity as a Funding Secured Creditor, as if it had been an
original party thereto as provided in CLAUSE 30.8 (Funding
Secured Creditors) (including without limitation CLAUSES 8.4
(Priority of Payments - After Service of an Intercompany Loan
Enforcement Notice), 8.5 (Application of Monies Received After
Intercompany Loan Enforcement Notice) and 9.2 (No Enforcement by
Funding Secured Creditors)); and
(d) agrees that the Security Trustee shall be the Security Trustee
of the Amended and Restated Funding Deed of Charge for all
Funding Secured Creditors upon and subject to the terms set out
in the Amended and Restated Funding Deed of Charge.
4. SCOPE OF THE AMENDED AND RESTATED FUNDING DEED OF CHARGE
Funding, the New Funding Secured Creditor and the Security Trustee
hereby agree that for relevant purposes under the Amended and Restated
Funding Deed of Charge and the Amended and Restated Master Definitions
and Construction Schedule:
(a) the Agreement shall be treated as a Funding Agreement; and
(b) the New Funding Secured Creditor shall be treated as an Funding
Secured Creditor.
5. AMENDMENT TO THE FUNDING PRIORITY OF PAYMENTS
The Funding Secured Creditors agree to amend and restate the Funding
Priority of Payments set out in PART I and PART II of SCHEDULE 3 of the
Amended and Restated Funding Deed of Charge in accordance with APPENDIX
1 hereto.
58
6. NOTICES AND DEMANDS
Any notice or communication under or in connection with this Deed, the
Amended and Restated Funding Deed of Charge or the Amended and Restated
Master Definitions and Construction Schedule shall be given in the
manner and at the times set out in CLAUSE 29 (Notices and Demands) of
the Amended and Restated Funding Deed of Charge to the addresses given
in this Clause or at such other address as the recipient may have
notified to the other parties hereto and/or thereto in writing.
The address referred to in this CLAUSE 5 for the New Funding Secured
Creditor is:
[ ]
For the attention of: [ ]
Telephone: [ ]
Facsimile: [ ]
or such other address and/or numbers as the New Issuer may notify to the
parties to the Amended and Restated Funding Deed of Charge in accordance
with the provisions thereof.
7. CHOICE OF LAW
This Deed is governed by and shall be construed in accordance with
English law.
DULY EXECUTED AND DELIVERED AS A DEED by each of the parties hereto or on its
behalf on the date appearing on page 1.
NEW FUNDING SECURED CREDITOR
EXECUTED as a DEED by )
[ ] )
acting by two )
directors/a director and the secretary )
Director
Director/Secretary
FUNDING
EXECUTED as a DEED by )
XXXXXX FUNDING )
LIMITED acting by two )
directors/a director and the secretary )
Director
Director/Secretary
59
FIRST ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.1) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
SECOND ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.2) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
THIRD ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.3) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
FOURTH ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.4) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
60
FIFTH ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.5) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary
SIXTH ISSUER
EXECUTED as a DEED by )
XXXXXX FINANCING (NO.6) )
PLC acting by two )
directors/a director and the secretary )
Director
Director/Secretary..............................................................
EXECUTED as a DEED by )
XXXXXX TRUSTEES LIMITED )
)
acting by its attorney )
in the presence of )
Witness:
Name:
Address:
SELLER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of )
Authorised Signatory )
)
Authorised Signatory )
61
CASH MANAGER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory )
)
Authorised Signatory )
ACCOUNT BANK
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
)
Authorised Signatory )
)
Authorised Signatory )
FUNDING SWAP PROVIDER
EXECUTED as a DEED by )
ABBEY NATIONAL TREASURY )
SERVICES PLC )
acting by two Directors/a director )
and the secretary )
Director
Director/Secretary
CORPORATE SERVICES PROVIDER
EXECUTED as a DEED by )
SPV MANAGEMENT LIMITED )
acting by two Directors/a director )
and the secretary )
Director
Director/Secretary
62
FIRST START-UP LOAN PROVIDER
EXECUTED as a DEED by )
CITIBANK N.A., )
LONDON BRANCH )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address:
SECOND START-UP LOAN PROVIDER
EXECUTED as a DEED by )
CITIBANK N.A., LONDON BRANCH )
)
acting by its attorney )
in the presence of: )
Witness:
Name:
Address: XXX XXX XXXXXX
XXXXXX XX0X 9QQ......................................................
THIRD START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
FOURTH START-UP LOAN PROVIDER
63
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
FIFTH START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
SIXTH START-UP LOAN PROVIDER
THE COMMON SEAL of )
ABBEY NATIONAL PLC )
was affixed in the presence of: )
Authorised Signatory
Authorised Signatory
FUNDING LIQUIDITY FACILITY PROVIDER
EXECUTED as a DEED by )
THE ROYAL BANK OF )
SCOTLAND PLC )
acting by its attorney in )
the presence of: )
Witness:
Name:
Address:
64
SECURITY TRUSTEE
EXECUTED as a DEED by )
JPMORGAN CHASE )
BANK, LONDON BRANCH )
)
acting by its attorney )
in the presence of )
Witness:
Name:
Address:
65
APPENDIX 1
AMENDED AND RESTATED FUNDING PRIORITY OF PAYMENTS
PART I
FUNDING PRE-ENFORCEMENT REVENUE PRIORITY OF PAYMENTS
On each Intercompany Loan Determination Date, Funding or the Cash Manager in its
place will determine the Funding Available Revenue Receipts available to pay the
amount set out below on the immediately succeeding Interest Payment Date.
Funding Available Revenue Receipts will be applied on each Interest Payment Date
(or, in the case of amounts due by Funding or the First Issuer, the Second
Issuer, the Third Issuer, the Fourth Issuer, the Fifth Issuer or the Sixth
Issuer as the case may be, to third parties or to the First Issuer Account Bank,
the Second Issuer Account Bank, the Third Issuer Account Bank, the Fourth Issuer
Account Bank, the Fifth Issuer Account Bank or the Sixth Issuer Account Bank
pursuant to item (a) below or to the Account Bank pursuant to item (c) below, on
the date when due) until enforcement of the Funding Security or until such time
as there are no amounts outstanding under any Intercompany Loan Agreements, in
making such payments and provisions in the following order of priority (the
"FUNDING PRE-ENFORCEMENT REVENUE PRIORITY OF PAYMENTS") (in each case only if
and to the extent that payments or provisions of a higher priority have been
made in full):
(a) firstly, in or towards satisfaction pro rata and pari passu according to
the respective amounts thereof of:
(i) any remuneration then due and payable to the Security Trustee
and any other amounts then due or to become due to the Security
Trustee in the immediately succeeding Interest Period under the
provisions of this Amended and Restated Funding Deed of Charge
together with interest and any amounts in respect of VAT thereon
as provided herein;
(ii) any amounts due to:
(1) the First Issuer under the First Issuer Intercompany
Loan Agreement in respect of the First Issuer's
obligations specified in items (a) to (d) inclusive of
the First Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the First Issuer Post-Enforcement Priority
of Payments;
(2) the Second Issuer under the Second Issuer Intercompany
Loan Agreement in respect of the Second Issuer's
obligations specified in items (a) to (d) inclusive of
the Second Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Second Issuer Post-Enforcement Priority
of Payments;
(3) the Third Issuer under the Third Issuer Intercompany
Loan Agreement in respect of the Third Issuer's
obligations specified in items (a) to (d) inclusive of
the Third Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Third Issuer Post-Enforcement Priority
of Payments;
66
(4) the Fourth Issuer under the Fourth Issuer Intercompany
Loan Agreement in respect of the Fourth Issuer's
obligations specified in items (a) to (d) inclusive of
the Fourth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Fourth Issuer Post-Enforcement Priority
of Payments;
(5) the Fifth Issuer under the Fifth Issuer Intercompany
Loan Agreement in respect of the Fifth Issuer's
obligations specified in items (a) to (d) inclusive of
the Fifth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Fifth Issuer Post-Enforcement Priority
of Payments; and
(6) the Sixth Issuer under the Sixth Issuer Intercompany
Loan Agreement in respect of the Sixth Issuer's
obligations specified in items (a) to (d) inclusive of
the Sixth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Sixth Issuer Post-Enforcement Priority
of Payments; and
(iii) any amounts due and payable by Funding to third parties (other
than those referred to below) and incurred without breach by
Funding of the Transaction Documents to which it is a party (and
for which payment has not been provided for elsewhere) and to
provide for any such amounts expected to become due and payable
by Funding in the immediately succeeding Interest Period and to
pay or discharge any liability of Funding for corporation tax on
any chargeable income, profit or gain of Funding;
(b) secondly, in or towards satisfaction of any remuneration then due and
payable to the Cash Manager and any costs, charges, liabilities and
expenses then due or to become due and payable to the Cash Manager in
the immediately succeeding Interest Period under the provisions of the
Cash Management Agreement, together with amounts in respect of VAT
thereon as provided therein;
(c) thirdly, in or towards satisfaction pro rata and pari passu, according
to the respective amounts thereof, of amounts (if any) due to the
Account Bank (including costs) pursuant to the terms of the Bank Account
Agreement and to the Corporate Services Provider pursuant to the terms
of the Corporate Services Agreement;
(d) fourthly, in or towards satisfaction, pro rata and pari passu, according
to the respective amounts thereof, of amounts due and payable (if any)
by Funding to (i) the Funding Swap Provider pursuant to the Funding Swap
Agreement except for any termination payments due and payable by Funding
under the Funding Swap Agreement following a Funding Swap Provider
Default and (ii) the Funding Liquidity Facility Provider under the
Funding Liquidity Facility Agreement except for principal repayments and
any Funding Liquidity Subordinated Amounts;
(e) fifthly, to pay pro rata and pari passu according to the respective
amounts outstanding of each Term AAA Advance, interest then due and
payable on each of the First Issuer Term AAA Advances, the Second Issuer
Term AAA Advances, the Third Issuer Term AAA Advances, the Fourth Issuer
Term AAA Advances, the Fifth Issuer Term AAA Advances and the Sixth
Issuer Term AAA Advances;
67
(f) sixthly, to make provision for a credit to the AAA Principal Deficiency
Sub Ledger in an amount sufficient to eliminate any debit thereon;
(g) seventhly, to pay pro rata and pari passu according to the respective
amounts outstanding of each Term AA Advance, interest then due and
payable on each of the First Issuer Term AA Advances, the Second Issuer
Term AA Advances, the Third Issuer Term AA Advances, the Fourth Issuer
Term AA Advances, the Fifth Issuer Term AA Advances and the Sixth Issuer
Term AA Advances;
(h) eighthly, to make provision for a credit to the AA Principal Deficiency
Sub Ledger in an amount sufficient to eliminate any debit thereon;
(i) ninthly, to pay pro rata and pari passu according to the respective
amounts outstanding of each Term BBB Advance, interest then due and
payable on the First Issuer Term BBB Advances, the Second Issuer Term
BBB Advances, the Third Issuer Term BBB Advances, the Fourth Issuer Term
BBB Advances, the Fifth Issuer Term BBB Advances and the Sixth Issuer
Term BBB Advances;
(j) tenthly, to make provision for a credit to the BBB Principal Deficiency
Sub Ledger in an amount sufficient to eliminate any debit thereon;
(k) eleventhly, to pay the interest then due and payable on the Fourth
Issuer Term BB Advance;
(l) twelfthly, to pay pro rata and pari passu according to the respective
amounts thereof:
(i) any amounts due to the First Issuer in respect of the First
Issuer's obligation (if any) to make a termination payment due
to any First Issuer Swap Provider (but excluding any termination
payment due to a First Issuer Swap Provider as a result of a
First Issuer Swap Provider Default);
(ii) any amounts due to the Second Issuer in respect of the Second
Issuer's obligation (if any) to make a termination payment due
to any Second Issuer Swap Provider (but excluding any
termination payment due to a Second Issuer Swap Provider as a
result of a Second Issuer Swap Provider Default);
(iii) any amounts due to the Third Issuer in respect of the Third
Issuer's obligation (if any) to make a termination payment due
to any Third Issuer Swap Provider (but excluding any termination
payment due to a Third Issuer Swap Provider as a result of a
Third Issuer Swap Provider Default);
(iv) any amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligation (if any) to make a termination payment due
to any Fourth Issuer Swap Provider (but excluding any
termination payment due to a Fourth Issuer Swap Provider as a
result of a Fourth Issuer Swap Provider Default);
(v) any amounts due to the Fifth Issuer in respect of the Fifth
Issuer's obligation (if any) to make a termination payment due
to any Fifth Issuer Swap Provider (but excluding any termination
payment due to a Fifth Issuer Swap Provider as a result of a
Fifth Issuer Swap Provider Default); and
68
(vi) any amounts due to the Sixth Issuer in respect of the Sixth
Issuer's obligation (if any) to make a termination payment due
to any Sixth Issuer Swap Provider (but excluding any termination
payment due to a Sixth Issuer Swap Provider as a result of a
Sixth Issuer Swap Provider Default);
(m) thirteenthly, to credit the First Reserve Ledger in an amount up to the
First Reserve Fund Required Amount (except that amounts standing to the
credit of the Second Reserve Ledger shall not be available for this
purpose);
(n) fourteenthly, to pay pro rata and pari passu according to the respective
amounts due:
(i) amounts due to the First Issuer in respect of the First Issuer's
obligations specified in items (h), (i), (j), (k) and (l) of the
First Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the First Issuer
Post-Enforcement Priority of Payments;
(ii) amounts due to the Second Issuer in respect of the Second
Issuer's obligations specified in items (h), (i), (j) and (k) of
the Second Issuer Pre-Enforcement Revenue Priority of Payments
or, as the case may be, items (g), (h), (i) and (j) of the
Second Issuer Post-Enforcement Priority of Payments;
(iii) amounts due to the Third Issuer in respect of the Third Issuer's
obligations specified in items (h), (i), (j) and (k) of the
Third Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the Third Issuer
Post-Enforcement Priority of Payments;
(iv) amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligations specified in items (i), (j), (k), (l) and
(m) of the Fourth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (h), (i), (j), (k) and
(l) of the Fourth Issuer Post-Enforcement Priority of Payments;
(v) amounts due to the Fifth Issuer in respect of the Fifth Issuer's
obligations specified in items (h), (i), (j) and (k) of the
Fifth Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the Fifth Issuer
Post-Enforcement Priority of Payments;
(vi) amounts due to the Sixth Issuer in respect of the Sixth Issuer's
obligations specified in items (h), (i), (j) and (k) of the
Sixth Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the Sixth Issuer
Post-Enforcement Priority of Payments;
(vii) any other amounts due to the First Issuer under the First Issuer
Intercompany Loan Agreement;
(viii) any other amounts due to the Second Issuer under the Second
Issuer Intercompany Loan Agreement;
(ix) any other amounts due to the Third Issuer under the Third Issuer
Intercompany Loan Agreement;
69
(x) any other amounts due to the Fourth Issuer under the Fourth
Issuer Intercompany Loan Agreement;
(xi) any other amounts due to the Fifth Issuer under the Fifth Issuer
Intercompany Loan Agreement;
(xii) any other amounts due to the Sixth Issuer under the Sixth Issuer
Intercompany Loan Agreement;
(xiii) after the occurrence of a Funding Swap Provider Default, amounts
due to the Funding Swap Provider in respect of any termination
payments due and payable by Funding under the Funding Swap
Agreement; and
(xiv) to the Funding Liquidity Facility Provider to pay any Funding
Liquidity Subordinated Amounts under the Funding Liquidity
Facility Agreement;
(o) fifteenthly, to credit the Second Reserve Ledger in an amount up to the
Second Reserve Fund Required Amount;
(p) sixteenthly, subject to satisfying the conditions to prepayment of
principal on the Fourth Issuer Term BB Advance as set out in CLAUSE 5.7
of the Fourth Issuer Intercompany Loan Agreement, to repay the Fourth
Issuer Term BB Advance;
(q) seventeenthly, to pay pro rata and pari passu according to the
respective amounts outstanding thereof, any amounts due to the First
Start-up Loan Provider, the Second Start-up Loan Provider, the Third
Start-Up Loan Provider, the Fourth Start-up Loan Provider, the Fifth
Start-up Loan Provider and the Sixth Start-up Loan Provider under the
Start-up Loan Agreements;
(r) eighteenthly, to pay any Postponed Deferred Consideration;
(s) nineteenthly, to pay any Deferred Consideration other than that referred
to in item (r) above and excluding an amount equal to 0.01 per cent of
the Funding Available Revenue Receipts; and
(t) twentiethly, to pay to shareholders of Funding any dividend declared by
Funding.
70
PART II
RULES FOR APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS AND FUNDING
PRINCIPAL RECEIPTS
On each Intercompany Loan Determination Date, Funding or the Cash Manager in its
place will determine the Funding Available Principal Receipts available to repay
the Term Advances on the immediately succeeding Interest Payment Date.
1. GENERAL PRINCIPLES FOR APPLICATION OF FUNDING AVAILABLE PRINCIPAL
RECEIPTS PRIOR TO THE OCCURRENCE OF A TRIGGER EVENT OR ENFORCEMENT OF
THE FUNDING SECURITY
1.1 On each Interest Payment Date prior to the occurrence of a Trigger Event
or enforcement of the Funding Security, Funding or the Cash Manager on
its behalf will apply Funding Available Principal Receipts:
(a) first, on each Interest Payment Date to repay the Funding
Liquidity Facility Provider amounts drawn under the Funding
Liquidity Facility on the previous Interest Payment Date in
order to repay principal due on the First Issuer Term AAA
Advances, the Second Issuer Series 1 Term AAA Advance, the Third
Issuer Series 1 Term AAA Advance, the Third Issuer Series 2 Term
AAA Advance, the Fourth Issuer Series 1 Term AAA Advance, the
Fourth Issuer Series 2 Term AAA Advance, the Fourth Issuer
Series 4 Term AAA Advance, the Fifth Issuer Series 1 Term AAA
Advance, the Fifth Issuer Series 2 Term AAA Advances, the Fifth
Issuer Series 3A1 Term AAA Advance, the Sixth Issuer Series 1
Term AAA Advance, the Sixth Issuer Series 2 Term AAA Advance,
the Sixth Issuer Series 3 Term AAA Advance and the Sixth Issuer
Series 4 Term AAA Advances;
(b) second, on each Interest Payment Date to replenish the First
Reserve Fund to the extent that monies have been drawn from the
First Reserve Fund on a previous Interest Payment Date and have
not been repaid, where such drawing was made for the purpose of
repaying principal amounts then due and payable on any of the
First Issuer Term AAA Advances, the Second Issuer Series 1 Term
AAA Advance, the Third Issuer Series 1 Term AAA Advance, the
Third Issuer Series 2 Term AAA Advance, the Fourth Issuer Series
1 Term AAA Advance, the Fourth Issuer Series 2 Term AAA Advance,
the Fourth Issuer Series 4 Term AAA Advance, the Fifth Issuer
Series 1 Term AAA Advance, the Fifth Issuer Series 2 Term AAA
Advances, the Fifth Issuer Series 3A1 Term AAA Advance, the
Sixth Issuer Series 1 Term AAA Advance, the Sixth Issuer Series
2 Term AAA Advance, the Sixth Issuer Series 3 Term AAA Advance
and the Sixth Issuer Series 4 Term AAA Advances; and
(c) third, (subject to the terms of this Deed and each Intercompany
Loan Agreement) on each Interest Payment Date to repay the Term
Advances (to the extent that amounts are then due and payable on
the Term Advances taking into account their relevant Scheduled
Repayment Dates and permitted repayment dates) in accordance
with the terms and provisions of each Intercompany Loan
Agreement and the relative Term Advance Rating of the Term
Advances so that Funding Available Principal Receipts will be
applied (pro rata and pari passu between Term Advances with the
same Term Advance Rating) to meet the principal repayments due
and payable (or due and payable subject to the availability of
Funding Available Principal Receipts) first on the Term Advances
71
with the highest Term Advance Rating, and thereafter on the Term
Advances with the next highest Term Advance Rating, and so on,
down to the Term Advances with the lowest Term Advance Rating.
1.2 If on any Interest Payment Date, prior to the occurrence of a Trigger
Event or enforcement of the Funding Security, amounts are due and
payable under more than one Term AAA Advance, Funding shall apply
Funding Available Principal Receipts to repay such Term AAA Advances in
order according to their respective Final Maturity Dates, so that the
Term AAA Advance with the earliest Final Repayment Date is paid first,
and so on.
1.3 If any Term AAA Advances have the same Final Maturity Date, then Funding
shall apply Funding Available Principal Receipts to repay those Term AAA
Advances pro rata and pari passu according to the respective amounts
due. If on an Interest Payment Date prior to the occurrence of a Trigger
Event or enforcement of the Funding Security (the "RELEVANT INTEREST
PAYMENT DATE"):
(a) a Principal Loss has been recorded on the Principal Deficiency
Ledger in respect of any of the Term BBB Advances and/or the
Term AA Advances under any Intercompany Loan Agreement and such
Principal Loss has not been cured on the Relevant Interest
Payment Date; or
(b) monies standing to the credit of the First Reserve Fund have
been used, on or prior to the Relevant Interest Payment Date, to
cure a Principal Deficiency in respect of any of the Term BBB
Advances and/or the Term AA Advances under any Intercompany Loan
Agreement, and the First Reserve Fund has not been replenished
by a corresponding amount on the Relevant Interest Payment Date,
then the Term BBB Advances and (if there has been an amount debited to
the AA Principal Deficiency Sub Ledger as described in (a) above, or if
monies standing to the credit of the First Reserve Fund have been used
to cure a Principal Deficiency in respect of any Term AA Advance as
described in (b) above) the Term AA Advances, will not be entitled to
principal repayments until the relevant circumstance as described above
has been cured or otherwise ceases to exist.
1.4 If the aggregate Outstanding Principal Balance of Loans in the Mortgages
Trust, in respect of which the aggregate amount in arrear is more than
three times the monthly payment then due, is more than 5 per cent. of
the aggregate Outstanding Principal Balance of Loans in the Mortgages
Trust, then the Term BBB Advances and the Term AA will not be entitled
to principal repayments until that circumstance has been cured or
otherwise ceases to exist.
1.5 The principles set out in this CLAUSE 1 shall prevail except to the
extent that they are subject to the exceptions set out in CLAUSES 2 to 6
below (inclusive).
2. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS DURING A CASH
ACCUMULATION PERIOD OR A SCHEDULED AMORTISATION PERIOD
Subject to CLAUSES 1.1(a) and 1.1(b) above and CLAUSE 3.4 below, on and
from the commencement of a Cash Accumulation Period or a Scheduled
Amortisation Period (but prior to the occurrence of a Trigger Event or
enforcement of the Funding Security), Funding Available Principal
Receipts (except to the extent required to make payment in respect of
any other Bullet Term Advance or any Scheduled Amortisation Term Advance
with a Deemed AAA Rating in each case taken into account in determining
the commencement of a Cash
72
Accumulation Period) will be deposited in the Funding GIC Account and
the amount of such deposits will be recorded on the Cash Accumulation
Ledger until the relevant Bullet Amount due in respect of the relevant
Bullet Term Advance has been saved by Funding or, as the case may be,
until the relevant Scheduled Amortisation Amount has been saved by
Funding.
Accordingly, during a Cash Accumulation Period, no payments will be made
in respect of any Payable Pass Through Term Advances or Payable
Scheduled Amortisation Term Advances under an Intercompany Loan
Agreement (unless that Scheduled Amortisation Term Advance has a Deemed
AAA Rating and a Scheduled Repayment Date thereof falls during the Cash
Accumulation Period), except as provided in CLAUSE 3.4 below.
3. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS TO PAY PASS THROUGH
TERM ADVANCES AND SCHEDULED AMORTISATION TERM ADVANCES IN CERTAIN
CIRCUMSTANCES
3.1 If:
(a) amounts are due and payable in respect of any Pass Through Term
Advances (the "PAYABLE PASS THROUGH TERM ADVANCES");
(b) no amounts are due and payable on any Scheduled Amortisation
Term Advances; and
(c) (i) the Cash Accumulation Period has not commenced in respect of
any Bullet Term Advance, or (ii) all Bullet Term Advances have
been repaid,
then, subject to CLAUSE 1 above and CLAUSES 3.2 and 3.3 below, on each
Interest Payment Date prior to the occurrence of a Trigger Event or
enforcement of the Funding Security, Funding or the Cash Manager on its
behalf will apply all Funding Available Principal Receipts to repay the
Payable Pass Through Term Advances.
3.2 If:
(a) amounts are due and payable on any Scheduled Amortisation Term
Advances (the "PAYABLE SCHEDULED AMORTISATION TERM ADVANCES");
(b) no amounts are due and payable on any Pass Through Term
Advances; and
(c) (i) the Cash Accumulation Period has not commenced in respect of
any Bullet Term Advance, or (ii) all Bullet Term Advances have
been repaid,
then, subject to CLAUSE 1 above and CLAUSE 3.3 below, on each Interest
Payment Date prior to the occurrence of a Trigger Event or enforcement
of the Funding Security, Funding or the Cash Manager on its behalf will
apply all Funding Available Principal Receipts to repay the Payable
Scheduled Amortisation Term Advances.
3.3 If:
(a) under an Intercompany Loan Agreement ("INTERCOMPANY LOAN
AGREEMENT A"), amounts are due and payable in respect of a Pass
Through Term Advance and/or a Scheduled Amortisation Term
Advance in either case which has a Term Advance Rating of "AAA"
(the "SENIOR PAYABLE PASS THROUGH TERM ADVANCE" and the "SENIOR
PAYABLE SCHEDULED AMORTISATION TERM ADVANCE" respectively);
73
(b) under a different Intercompany Loan Agreement ("INTERCOMPANY
LOAN AGREEMENT B"), amounts are due and payable in respect of a
Pass Through Term Advance and/or a Scheduled Amortisation Term
Advance in either case which does not have a Term Advance Rating
of "AAA" (the "SUBORDINATED PAYABLE PASS THROUGH TERM ADVANCE"
and the "SUBORDINATED PAYABLE SCHEDULED AMORTISATION TERM
ADVANCE" respectively); and
(c) there is no Cash Accumulation Period affecting payments under
either Intercompany Loan Agreement A or Intercompany Loan
Agreement B,
then on each Interest Payment Date prior to the occurrence of a Trigger
Event or enforcement of the Funding Security, Funding or the Cash
Manager on its behalf will apply Funding Available Principal Receipts:
(i) to repay the Senior Payable Pass Through Term Advance and the
Senior Payable Scheduled Amortisation Term Advance as follows:
Funding Share Principal Outstanding Principal Balance of Intercompany
Percentage x Receipts x Loan Agreement A
--------------------------------------------------
Aggregate Outstanding Principal Balance of all
Intercompany Loans
(ii) to repay the Subordinated Payable Pass Through Term Advance and
the Subordinated Payable Scheduled Amortisation Term Advance, as
follows:
Funding Share Principal Outstanding Principal Balance of the
Percentage x Receipts x Intercompany Loan Agreement B
------------------------------------------------
Aggregate Outstanding Principal Balance of all
Intercompany Loans
(d) If, after applying the Funding Share Percentage of Principal
Receipts to repay the Payable Pass Through Term Advance and the
Payable Scheduled Amortisation Term Advance pursuant to
paragraphs (i) and (ii) above, there is a shortfall in the
amount due and payable on that Interest Payment Date on the
Payable Scheduled Amortisation Term Advance, Funding will apply
those additional Principal Receipts received on the immediately
preceding Distribution Date under CLAUSE 9.1(D) of the Mortgages
Trust Deed (as amended and restated) towards repayment of the
relevant Payable Scheduled Amortisation Term Advance.
3.4 If:
(a) amounts are due and payable in respect of a Pass Through Term
Advance and/or a Scheduled Amortisation Term Advance made under
an Intercompany Loan Agreement ("INTERCOMPANY LOAN AGREEMENT
X"); and
(b) in respect of a different Intercompany Loan Agreement
("INTERCOMPANY LOAN AGREEMENT Y"), the Cash Accumulation Period
in relation to a Bullet Term Advance made under Intercompany
Loan Agreement Y has commenced,
74
then (subject to CLAUSES 1.1(a), 1.1(b), 1.3 and 1.4 above) on each
Interest Payment Date, Funding or the Cash Manager on its behalf will
apply an amount equal to the amount determined as follows to repay the
outstanding Payable Pass Through Term Advances and the Payable Scheduled
Amortisation Term Advances under Intercompany Loan Agreement X:
Funding Share Principal Outstanding Principal Balance of the
Percentage x Receipts x Intercompany Loan Agreement X
------------------------------------------------
Aggregate Outstanding Principal Balance of all
Intercompany Loans
If however, the relevant Interest Payment Date is also the Scheduled
Repayment Date for a Bullet Term Advance under Intercompany Loan
Agreement Y and there is not enough money to repay that Bullet Term
Advance and the outstanding Payable Pass Through Term Advances and the
outstanding Payable Scheduled Amortisation Term Advances under
Intercompany Loan Agreement X, then (to the extent that the relevant
Bullet Term Advance has a higher Term Advance Rating that then the
Payable Pass Through Term Advances or the Payable Scheduled Amortisation
Term Advances) all Funding Available Principal Receipts will be applied
to repay the Bullet Term Advance.
3.5 If the Scheduled Amortisation Period of the Fifth Issuer Series 1 Term
AAA Advance scheduled for repayment on the Interest Payment Date falling
in October 2002 is extended (because the monthly constant prepayment
rate on the Loans in the Mortgages Trust is less than 8 per cent. per
annum), then the extra amounts accumulated by Funding during the
extended Scheduled Amortisation Period will not be available for any
other purpose other than to repay the Fifth Issuer Series 1 Term AAA
Advance on the Scheduled Repayment Date in October 2002.
3.6 If the Scheduled Amortisation Period of the Sixth Issuer Series 1 Term
AAA Advance scheduled for repayment on the Interest Payment Date falling
in July 2003 is extended (because the monthly constant prepayment rate
on the Loans in the Mortgages Trust is less than 8 per cent. per annum),
then the extra amounts accumulated by Funding during the extended
Scheduled Amortisation Period will not be available for any other
purpose other than to repay the Sixth Issuer Series 1 Term AAA Advance
on the Scheduled Repayment Dates in July and October 2003.
4. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS FOLLOWING THE
OCCURRENCE OF A NON-ASSET TRIGGER EVENT
On and from the Interest Payment Date following the occurrence of a
Non-Asset Trigger Event but prior to enforcement of the Funding
Security, Funding shall (subject to CLAUSES 1.1(a) and 1.1(b) above)
repay the First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer and the Sixth Issuer on each Interest Payment
Date from Funding Available Principal Receipts as follows:
(a) firstly, the Fifth Issuer Series 1 Term AAA Advance until the
Fifth Issuer Series 1 Term AAA Advance is fully repaid;
(b) secondly, the Sixth Issuer Series 1 Term AAA Advance until the
Sixth Issuer Series 1 Term AAA Advance is fully repaid;
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(c) thirdly, the Second Issuer Series 1 Term AAA Advance until the
Second Issuer Series 1 Term AAA Advance is fully repaid;
(d) fourthly, the Third Issuer Series 1 Term AAA Advance until the
Third Issuer Series 1 Term AAA Advance is fully repaid;
(e) fifthly, the First Issuer Series 1 Term AAA Advance until the
First Issuer Series 1 Term AAA Advance is fully repaid;
(f) sixthly, in no order of priority between them but in proportion
to the respective amounts due, the Fifth Issuer Series 2A1 Term
AAA Advance and the Fifth Issuer Series 2A2 Term AAA Advance
until both those Fifth Issuer Series 2 Term AAA Advances are
fully repaid;
(g) seventhly, the Third Issuer Series 2 Term AAA Advance until the
Third Issuer Series 2 Term AAA Advance is fully repaid;
(h) eighthly, the First Issuer Series 2 Term AAA Advance until the
First Issuer Series 2 Term AAA Advance is fully repaid;
(i) ninthly, the Sixth Issuer Series 2 Term AAA Advance until the
Sixth Issuer Series 2 Term AAA Advance is fully repaid;
(j) tenthly, the Fourth Issuer Series 2 Term AAA Advance until the
Fourth Issuer Series 2 Term AAA Advance is fully repaid;
(k) eleventhly, the Fifth Issuer Series 3A1 Term AAA Advance until
the Fifth Issuer Series 3A1 Term AAA Advance is fully repaid;
(l) twelfthly, in no order of priority between them but in
proportion to the respective amounts due the Fourth Issuer
Series 4 Term AAA Advance, the Sixth Issuer Series 3 Term AAA
Advance and the Sixth Issuer Series 4 Term AAA Advances until
all those Term AAA Advances are fully repaid;
(m) thirteenthly, the First Issuer Series 3 Term AAA Advance until
the First Issuer Series 3 Term AAA Advance is fully repaid;
(n) fourteenthly, the First Issuer Series 4 Term AAA Advance until
the First Issuer Series 4 Term AAA Advance is fully repaid;
(o) fifteenthly, the Fourth Issuer Series 1 Term AAA Advance until
the Fourth Issuer Series 1 Term AAA Advance is fully repaid;
(p) sixteenthly, the Second Issuer Series 2 Term AAA Advance until
the Second Issuer Series 2 Term AAA Advance is fully repaid;
(q) seventeenthly, the Second Issuer Series 3 Term AAA Advance until
the Second Issuer Series 3 Term AAA Advance is fully repaid;
(r) eighteenthly, in no order of priority between them but in
proportion to the respective amounts due, the Second Issuer
Series 4 Term AAA Advance, the Third Issuer Series
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3 Term AAA Advance, the Fourth Issuer Series 3 Term AAA Advance,
the Fifth Issuer Series 3A2 Term AAA Advance and the Sixth
Issuer Series 5 Term AAA Advance until all of these Issuer Term
AAA Advances are fully repaid;
(s) nineteenthly, pro rata and pari passu (according to the
respective amounts outstanding of the Term AA Advances), the
First Issuer Term AA Advances, the Second Issuer Term AA
Advances, the Third Issuer Term AA Advances, the Fourth Issuer
Term AA Advances, the Fifth Issuer Term AA Advances and the
Sixth Issuer Term AA Advances until all the Term AA Advances are
fully repaid; and
(t) twentiethly, pro rata and pari passu (according to the
respective amounts outstanding of the Term BBB Advances), the
First Issuer Term BBB Advances, the Second Issuer Term BBB
Advances, the Third Issuer Term BBB Advances, the Fourth Issuer
Term BBB Advances, the Fifth Issuer Term BBB Advances and the
Sixth Issuer Term BBB Advances until all the Term BBB Advances
are fully repaid.
5. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS FOLLOWING THE
OCCURRENCE OF AN ASSET TRIGGER EVENT
Following the occurrence of an Asset Trigger Event but prior to
enforcement of the Funding Security, Funding shall (subject to CLAUSES
1.1(a) and 1.1(b) above) repay the First Issuer, the Second Issuer, the
Third Issuer, the Fourth Issuer, the Fifth Issuer and the Sixth Issuer
on each Interest Payment Date from Funding Available Principal Receipts:
(a) firstly, pro rata and pari passu (according to the respective
amounts outstanding of each Term AAA Advance) the First Issuer
Term AAA Advances, the Second Issuer Term AAA Advances, the
Third Issuer Term AAA Advances, the Fourth Issuer Term AAA
Advances, the Fifth Issuer Term AAA Advances and the Sixth
Issuer Term AAA Advances until all the Term AAA Advances are
fully repaid;
(b) secondly, pro rata and pari passu (according to the respective
amounts outstanding of each Term AA Advance) the First Issuer
Term AA Advances, the Second Issuer Term AA Advances, the
Third Issuer Term AA Advances, the Fourth Issuer Term AA
Advances, the Fifth Issuer Term AA Advances and the Sixth
Issuer Term AA Advances until all the Term AA Advances are
fully repaid; and
(c) thirdly, pro rata and pari passu (according to the respective
amounts outstanding of each Term BBB Advance) the First Issuer
Term BBB Advances, the Second Issuer Term BBB Advances, the
Third Issuer Term BBB Advances, the Fourth Issuer Term BBB
Advances, the Fifth Issuer Term BBB Advances and the Sixth
Issuer Term BBB Advances until all the Term BBB Advances are
fully repaid.
6. EFFECT ON BULLET TERM ADVANCES AND SCHEDULED AMORTISATION TERM ADVANCES
WHEN A TRIGGER EVENT OCCURS OR WHEN THE ISSUER SECURITY IS ENFORCED
6.1 If a Trigger Event occurs then (i) the Scheduled Repayment Dates of the
Bullet Term Advances and the Scheduled Amortisation Term Advances made
under each Intercompany Loan Agreement will cease to apply and each such
Term Advance shall be repaid, subject to the terms of this SCHEDULE 3,
on each Interest Payment Date to the extent of Funding Available
Principal Receipts therefor and (ii) all Bullet Term Advances and
Scheduled
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Amortisation Term Advances made under the Intercompany Loan Agreements
will be deemed to be Payable Pass Through Term Advances.
6.2 If the First Issuer Security is enforced under the First Issuer Deed of
Charge and/or the Second Issuer Security is enforced under the Second
Issuer Deed of Charge and/or the Third Issuer Security is enforced under
the Third Issuer Deed of Charge and/or the Fourth Issuer Security is
enforced under the Fourth Issuer Deed of Charge and/or the Fifth Issuer
Security is enforced under the Fifth Issuer Deed of Charge and/or the
Sixth Issuer Security is enforced under the Sixth Issuer Deed of Charge,
then (as applicable) (i) the Scheduled Repayment Dates of any
outstanding Bullet Term Advances and any Scheduled Amortisation Term
Advances made under, as the case may be, the First Issuer Intercompany
Loan Agreement and/or the Second Issuer Intercompany Loan Agreement
and/or the Third Issuer Intercompany Loan Agreement and/or the Fourth
Issuer Intercompany Loan Agreement and/or the Fifth Issuer Intercompany
Loan Agreement and/or the Sixth Issuer Intercompany Loan Agreement will
cease to apply and each such Term Advance shall be repaid, subject to
the terms of this SCHEDULE 3, on each Interest Payment Date to the
extent of Funding Available Principal Receipts therefore and (ii) all
Bullet Term Advances and any Scheduled Amortisation Term Advances made
under, as the case may be, the First Issuer Intercompany Loan Agreement
and/or the Second Issuer Intercompany Loan Agreement and/or the Third
Issuer Intercompany Loan Agreement and/or the Fourth Issuer Intercompany
Loan Agreement and/or the Fifth Issuer Intercompany Loan Agreement
and/or the Sixth Issuer Intercompany Loan Agreement will be deemed to be
Payable Pass Through Term Advances.
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PART III
FUNDING POST-ENFORCEMENT PRIORITY OF PAYMENTS
All the monies received or recovered by the Security Trustee (or a Receiver
appointed on its behalf) following service of an Intercompany Loan Enforcement
Notice shall be applied (save to the extent required otherwise by law) on each
Interest Payment Date (except for amounts due to the Account Bank under items
(c) below, which will be paid when due) in the following order of priority (and
to the extent that payments or provisions of a higher priority have been made in
full):
(a) firstly, in or towards satisfaction, pro rata and pari passu according
to the respective amounts thereof, of:
(i) any remuneration then due and payable to the Security Trustee
and any Receiver appointed by the Security Trustee and any other
amounts due or to become due in the immediately succeeding
Interest Period to the Security Trustee and the Receiver under
the provisions of the Amended and Restated Funding Deed of
Charge together with interest and any amounts in respect of VAT
thereon as provided therein;
(ii) any amounts due to the First Issuer in respect of its
obligations specified in items (a) to (c) of the First Issuer
Post-Enforcement Priority of Payments;
(iii) any amounts due to the Second Issuer in respect of its
obligations specified in items (a) to (c) of the Second Issuer
Post-Enforcement Priority of Payments;
(iv) any amounts due to the Third Issuer in respect of its
obligations specified in items (a) to (c) of the Third Issuer
Post-Enforcement Priority of Payments;
(v) any amounts due to the Fourth Issuer in respect of its
obligations specified in items (a) to (c) of the Fourth Issuer
Post-Enforcement Priority of Payments;
(vi) any amounts due to the Fifth Issuer in respect of its
obligations specified in items (a) to (c) of the Fifth Issuer
Post-Enforcement Priority of Payments; and
(vii) any amounts due to the Sixth Issuer in respect of its
obligations specified in items (a) to (c) of the Sixth Issuer
Post-Enforcement Priority of Payments;
(b) secondly, in or towards satisfaction of any remuneration then due and
payable to the Cash Manager and any costs, charges, liabilities and
expenses then due or to become due and payable in the immediately
succeeding Interest Period to the Cash Manager under the provisions of
the Cash Management Agreement, together with any amounts in respect of
VAT thereon as provided therein;
(c) thirdly, in or towards satisfaction pro rata and pari passu of any
amounts due to the Account Bank (including costs) pursuant to the terms
of the Bank Account Agreement and the Corporate Services Provider
pursuant to the Corporate Services Agreement;
(d) fourthly, in or towards satisfaction pro rata and pari passu of those
amounts due and payable (if any) by Funding to (i) the Funding Swap
Provider pursuant to the Funding Swap Agreement (except for any
termination payments due and payable by Funding under the
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Funding Swap Agreement following a Funding Swap Provider Default) and
(ii) the Funding Liquidity Facility Provider under the Funding Liquidity
Facility Agreement (except for any Funding Liquidity Subordinated
Amounts);
(e) fifthly, to pay pro rata and pari passu (according to the respective
amount of each Term AAA Advance outstanding), interest and principal due
and payable on the First Issuer Term AAA Advances, the Second Issuer
Term AAA Advances, the Third Issuer Term AAA Advances, the Fourth Issuer
Term AAA Advances, the Fifth Issuer Term AAA Advances and the Sixth
Issuer Term AAA Advances;
(f) sixthly, to pay pro rata and pari passu (according to the respective
amount of each Term AA Advance outstanding), interest and principal due
and payable on the First Issuer Term AA Advances, the Second Issuer Term
AA Advances, the Third Issuer Term AA Advances, the Fourth Issuer Term
AA Advances, the Fifth Issuer Term AA Advances and the Sixth Issuer Term
AA Advances;
(g) seventhly, to pay pro rata and pari passu (according to the respective
amount of each Term BBB Advance outstanding), interest and principal due
and payable on the First Issuer Term BBB Advances, the Second Issuer
Term BBB Advances, the Third Issuer Term BBB Advances, the Fourth Issuer
Term BBB Advances, the Fifth Issuer Term BBB Advances and the Sixth
Issuer Term BBB Advances;
(h) eighthly, to pay pro rata and pari passu according to the respective
amounts outstanding thereof:
(i) amounts due to the First Issuer in respect of the First Issuer's
obligation (if any) to make a termination payment to any First
Issuer Swap Provider (but excluding any termination payment due
to a First Issuer Swap Provider as a result of a First Issuer
Swap Provider Default);
(ii) amounts due to the Second Issuer in respect of the Second
Issuer's obligation (if any) to make a termination payment to
any Second Issuer Swap Provider (but excluding any termination
payment due to a Second Issuer Swap Provider as a result of a
Second Issuer Swap Provider Default);
(iii) amounts due to the Third Issuer in respect of the Third Issuer's
obligation (if any) to make a termination payment to any Third
Issuer Swap Provider (but excluding any termination payment due
to a Third Issuer Swap Provider as a result of a Third Issuer
Swap Provider Default);
(iv) amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligation (if any) to make a termination payment to
any Fourth Issuer Swap Provider (but excluding any termination
payment due to a Fourth Issuer Swap Provider as a result of a
Fourth Issuer Swap Provider Default);
(v) amounts due to the Fifth Issuer in respect of the Fifth Issuer's
obligation (if any) to make a termination payment to any Fifth
Issuer Swap Provider (but excluding any termination payment due
to a Fifth Issuer Swap Provider as a result of a Fifth Issuer
Swap Provider Default); and
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(vi) amounts due to the Sixth Issuer in respect of the Sixth Issuer's
obligation (if any) to make a termination payment to any Sixth
Issuer Swap Provider (but excluding any termination payment due
to a Sixth Issuer Swap Provider as a result of a Sixth Issuer
Swap Provider Default);
(i) ninthly, to pay interest and principal due and payable on the Fourth
Issuer Term BB Advance;
(j) tenthly, to pay pro rata and pari passu according to the respective
amounts outstanding thereof:
(i) any amounts due to the First Issuer in respect of the First
Issuer's obligations specified in items (g), (h), (i) and (j) of
the First Issuer Post-Enforcement Priority of Payments;
(ii) any amounts due to the Second Issuer in respect of the Second
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Second Issuer Post-Enforcement Priority of Payments;
(iii) any amounts due to the Third Issuer in respect of the Third
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Third Issuer Post-Enforcement Priority of Payments;
(iv) any amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligations specified in items (h), (i), (j) and (k) of
the Fourth Issuer Post-Enforcement Priority of Payments;
(v) any amounts due to the Fifth Issuer in respect of the Fifth
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Fifth Issuer Post-Enforcement Priority of Payments;
(vi) any amounts due to the Sixth Issuer in respect of the Sixth
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Sixth Issuer Post-Enforcement Priority of Payments;
(vii) any other amounts due to the First Issuer in respect of any
other obligation of Funding under the First Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(viii) any other amounts due to the Second Issuer in respect of any
other obligation of Funding under the Second Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(ix) any other amounts due to the Third Issuer in respect of any
other obligation of Funding under the Third Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(x) any other amounts due to the Fourth Issuer in respect of any
other obligation of Funding under the Fourth Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
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(xi) any other amounts due to the Fifth Issuer in respect of any
other obligation of Funding under the Fifth Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(xii) any other amounts due to the Sixth Issuer in respect of any
other obligation of Funding under the Sixth Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(xiii) after the occurrence of a Funding Swap Provider Default, to the
Funding Swap Provider in respect of any termination payment due
and payable by Funding under the Funding Swap Agreement; and
(xiv) the Funding Liquidity Facility Provider in respect of Funding
Liquidity Subordinated Amounts;
(k) eleventhly, to pay any amounts due to the First Start-up Loan Provider,
the Second Start-up Loan Provider, the Third Start-up Loan Provider, the
Fourth Start-up Loan Provider, the Fifth Start-up Loan Provider and the
Sixth Start-up Loan Provider under the Start-up Loan Agreements;
(l) twelfthly, to pay any Postponed Deferred Consideration; and
(m) thirteenthly, to pay any Deferred Consideration other than that referred
to in item (l) above.
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SCHEDULE 3
FUNDING PRIORITY OF PAYMENTS
PART I
FUNDING PRE-ENFORCEMENT REVENUE PRIORITY OF PAYMENTS
On each Intercompany Loan Determination Date, Funding or the Cash Manager in its
place will determine the Funding Available Revenue Receipts available to pay the
amount set out below on the immediately succeeding Interest Payment Date.
Funding Available Revenue Receipts will be applied on each Interest Payment Date
(or, in the case of amounts due by Funding or the First Issuer, the Second
Issuer, the Third Issuer, the Fourth Issuer, the Fifth Issuer or the Sixth
Issuer as the case may be, to third parties or to the First Issuer Account Bank,
the Second Issuer Account Bank, the Third Issuer Account Bank, the Fourth Issuer
Account Bank, the Fifth Issuer Account Bank or the Sixth Issuer Account Bank
pursuant to item (a) below or to the Account Bank pursuant to item (c) below, on
the date when due) until enforcement of the Funding Security or until such time
as there are no amounts outstanding under any Intercompany Loan Agreements, in
making such payments and provisions in the following order of priority (the
"FUNDING PRE-ENFORCEMENT REVENUE PRIORITY OF PAYMENTS") (in each case only if
and to the extent that payments or provisions of a higher priority have been
made in full):
(a) firstly, in or towards satisfaction pro rata and pari passu according to
the respective amounts thereof of:
(i) any remuneration then due and payable to the Security Trustee
and any other amounts then due or to become due to the Security
Trustee in the immediately succeeding Interest Period under the
provisions of this Amended and Restated Funding Deed of Charge
together with interest and any amounts in respect of VAT thereon
as provided herein;
(ii) any amounts due to:
(1) the First Issuer under the First Issuer Intercompany
Loan Agreement in respect of the First Issuer's
obligations specified in items (a) to (d) inclusive of
the First Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the First Issuer Post-Enforcement Priority
of Payments;
(2) the Second Issuer under the Second Issuer Intercompany
Loan Agreement in respect of the Second Issuer's
obligations specified in items (a) to (d) inclusive of
the Second Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Second Issuer Post-Enforcement Priority
of Payments;
(3) the Third Issuer under the Third Issuer Intercompany
Loan Agreement in respect of the Third Issuer's
obligations specified in items (a) to (d) inclusive of
the Third Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Third Issuer Post-Enforcement Priority
of Payments;
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(4) the Fourth Issuer under the Fourth Issuer Intercompany
Loan Agreement in respect of the Fourth Issuer's
obligations specified in items (a) to (d) inclusive of
the Fourth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Fourth Issuer Post-Enforcement Priority
of Payments;
(5) the Fifth Issuer under the Fifth Issuer Intercompany
Loan Agreement in respect of the Fifth Issuer's
obligations specified in items (a) to (d) inclusive of
the Fifth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Fifth Issuer Post-Enforcement Priority
of Payments; and
(6) the Sixth Issuer under the Sixth Issuer Intercompany
Loan Agreement in respect of the Sixth Issuer's
obligations specified in items (a) to (d) inclusive of
the Sixth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (a) to (c)
inclusive of the Sixth Issuer Post-Enforcement Priority
of Payments; and
(iii) any amounts due and payable by Funding to third parties (other
than those referred to below) and incurred without breach by
Funding of the Transaction Documents to which it is a party (and
for which payment has not been provided for elsewhere) and to
provide for any such amounts expected to become due and payable
by Funding in the immediately succeeding Interest Period and to
pay or discharge any liability of Funding for corporation tax on
any chargeable income, profit or gain of Funding;
(b) secondly, in or towards satisfaction of any remuneration then due and
payable to the Cash Manager and any costs, charges, liabilities and
expenses then due or to become due and payable to the Cash Manager in
the immediately succeeding Interest Period under the provisions of the
Cash Management Agreement, together with amounts in respect of VAT
thereon as provided therein;
(c) thirdly, in or towards satisfaction pro rata and pari passu, according
to the respective amounts thereof, of amounts (if any) due to the
Account Bank (including costs) pursuant to the terms of the Bank Account
Agreement and to the Corporate Services Provider pursuant to the terms
of the Corporate Services Agreement;
(d) fourthly, in or towards satisfaction, pro rata and pari passu, according
to the respective amounts thereof, of amounts due and payable (if any)
by Funding to (i) the Funding Swap Provider pursuant to the Funding Swap
Agreement except for any termination payments due and payable by Funding
under the Funding Swap Agreement following a Funding Swap Provider
Default and (ii) the Funding Liquidity Facility Provider under the
Funding Liquidity Facility Agreement except for principal repayments and
any Funding Liquidity Subordinated Amounts;
(e) fifthly, to pay pro rata and pari passu according to the respective
amounts outstanding of each Term AAA Advance, interest then due and
payable on each of the First Issuer Term AAA Advances, the Second Issuer
Term AAA Advances, the Third Issuer Term AAA Advances, the Fourth Issuer
Term AAA Advances, the Fifth Issuer Term AAA Advances and the Sixth
Issuer Term AAA Advances;
84
(f) sixthly, to make provision for a credit to the AAA Principal Deficiency
Sub Ledger in an amount sufficient to eliminate any debit thereon;
(g) seventhly, to pay pro rata and pari passu according to the respective
amounts outstanding of each Term AA Advance, interest then due and
payable on each of the First Issuer Term AA Advances, the Second Issuer
Term AA Advances, the Third Issuer Term AA Advances, the Fourth Issuer
Term AA Advances, the Fifth Issuer Term AA Advances and the Sixth Issuer
Term AA Advances;
(h) eighthly, to make provision for a credit to the AA Principal Deficiency
Sub Ledger in an amount sufficient to eliminate any debit thereon;
(i) ninthly, to pay pro rata and pari passu according to the respective
amounts outstanding of each Term BBB Advance, interest then due and
payable on the First Issuer Term BBB Advances, the Second Issuer Term
BBB Advances, the Third Issuer Term BBB Advances, the Fourth Issuer Term
BBB Advances, the Fifth Issuer Term BBB Advances and the Sixth Issuer
Term BBB Advances;
(j) tenthly, to make provision for a credit to the BBB Principal Deficiency
Sub Ledger in an amount sufficient to eliminate any debit thereon;
(k) eleventhly, to pay the interest then due and payable on the Fourth
Issuer Term BB Advance;
(l) twelfthly, to pay pro rata and pari passu according to the respective
amounts thereof:
(i) any amounts due to the First Issuer in respect of the First
Issuer's obligation (if any) to make a termination payment due
to any First Issuer Swap Provider (but excluding any termination
payment due to a First Issuer Swap Provider as a result of a
First Issuer Swap Provider Default);
(ii) any amounts due to the Second Issuer in respect of the Second
Issuer's obligation (if any) to make a termination payment due
to any Second Issuer Swap Provider (but excluding any
termination payment due to a Second Issuer Swap Provider as a
result of a Second Issuer Swap Provider Default);
(iii) any amounts due to the Third Issuer in respect of the Third
Issuer's obligation (if any) to make a termination payment due
to any Third Issuer Swap Provider (but excluding any termination
payment due to a Third Issuer Swap Provider as a result of a
Third Issuer Swap Provider Default);
(iv) any amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligation (if any) to make a termination payment due
to any Fourth Issuer Swap Provider (but excluding any
termination payment due to a Fourth Issuer Swap Provider as a
result of a Fourth Issuer Swap Provider Default);
(v) any amounts due to the Fifth Issuer in respect of the Fifth
Issuer's obligation (if any) to make a termination payment due
to any Fifth Issuer Swap Provider (but excluding any termination
payment due to a Fifth Issuer Swap Provider as a result of a
Fifth Issuer Swap Provider Default); and
85
(vi) any amounts due to the Sixth Issuer in respect of the Sixth
Issuer's obligation (if any) to make a termination payment due
to any Sixth Issuer Swap Provider (but excluding any termination
payment due to a Sixth Issuer Swap Provider as a result of a
Sixth Issuer Swap Provider Default);
(m) thirteenthly, to credit the First Reserve Ledger in an amount up to the
First Reserve Fund Required Amount (except that amounts standing to the
credit of the Second Reserve Ledger shall not be available for this
purpose);
(n) fourteenthly, to pay pro rata and pari passu according to the respective
amounts due:
(i) amounts due to the First Issuer in respect of the First Issuer's
obligations specified in items (h), (i), (j), (k) and (l) of the
First Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the First Issuer
Post-Enforcement Priority of Payments;
(ii) amounts due to the Second Issuer in respect of the Second
Issuer's obligations specified in items (h), (i), (j) and (k) of
the Second Issuer Pre-Enforcement Revenue Priority of Payments
or, as the case may be, items (g), (h), (i) and (j) of the
Second Issuer Post-Enforcement Priority of Payments;
(iii) amounts due to the Third Issuer in respect of the Third Issuer's
obligations specified in items (h), (i), (j) and (k) of the
Third Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the Third Issuer
Post-Enforcement Priority of Payments;
(iv) amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligations specified in items (i), (j), (k), (l) and
(m) of the Fourth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, items (h), (i), (j), (k) and
(l) of the Fourth Issuer Post-Enforcement Priority of Payments;
(v) amounts due to the Fifth Issuer in respect of the Fifth Issuer's
obligations specified in items (h), (i), (j) and (k) of the
Fifth Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the Fifth Issuer
Post-Enforcement Priority of Payments;
(vi) amounts due to the Sixth Issuer in respect of the Sixth Issuer's
obligations specified in items (h), (i), (j) and (k) of the
Sixth Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, items (g), (h), (i) and (j) of the Sixth Issuer
Post-Enforcement Priority of Payments;
(vii) any other amounts due to the First Issuer under the First Issuer
Intercompany Loan Agreement;
(viii) any other amounts due to the Second Issuer under the Second
Issuer Intercompany Loan Agreement;
(ix) any other amounts due to the Third Issuer under the Third Issuer
Intercompany Loan Agreement;
86
(x) any other amounts due to the Fourth Issuer under the Fourth
Issuer Intercompany Loan Agreement;
(xi) any other amounts due to the Fifth Issuer under the Fifth Issuer
Intercompany Loan Agreement;
(xii) any other amounts due to the Sixth Issuer under the Sixth Issuer
Intercompany Loan Agreement;
(xiii) after the occurrence of a Funding Swap Provider Default, amounts
due to the Funding Swap Provider in respect of any termination
payments due and payable by Funding under the Funding Swap
Agreement; and
(xiv) to the Funding Liquidity Facility Provider to pay any Funding
Liquidity Subordinated Amounts under the Funding Liquidity
Facility Agreement;
(o) fifteenthly, to credit the Second Reserve Ledger in an amount up to the
Second Reserve Fund Required Amount;
(p) sixteenthly, subject to satisfying the conditions to prepayment of
principal on the Fourth Issuer Term BB Advance as set out in CLAUSE 5.7
of the Fourth Issuer Intercompany Loan Agreement, to repay the Fourth
Issuer Term BB Advance;
(q) seventeenthly, to pay pro rata and pari passu according to the
respective amounts outstanding thereof, any amounts due to the First
Start-up Loan Provider, the Second Start-up Loan Provider, the Third
Start-Up Loan Provider, the Fourth Start-up Loan Provider, the Fifth
Start-up Loan Provider and the Sixth Start-up Loan Provider under the
Start-up Loan Agreements;
(r) eighteenthly, to pay any Postponed Deferred Consideration;
(s) nineteenthly, to pay any Deferred Consideration other than that referred
to in item (r) above and excluding an amount equal to 0.01 per cent of
the Funding Available Revenue Receipts; and
(t) twentiethly, to pay to shareholders of Funding any dividend declared by
Funding.
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PART II
RULES FOR APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS AND FUNDING
PRINCIPAL RECEIPTS
On each Intercompany Loan Determination Date, Funding or the Cash Manager in its
place will determine the Funding Available Principal Receipts available to repay
the Term Advances on the immediately succeeding Interest Payment Date.
1. GENERAL PRINCIPLES FOR APPLICATION OF FUNDING AVAILABLE PRINCIPAL
RECEIPTS PRIOR TO THE OCCURRENCE OF A TRIGGER EVENT OR ENFORCEMENT OF
THE FUNDING SECURITY
1.1 On each Interest Payment Date prior to the occurrence of a Trigger Event
or enforcement of the Funding Security, Funding or the Cash Manager on
its behalf will apply Funding Available Principal Receipts:
(a) first, on each Interest Payment Date to repay the Funding
Liquidity Facility Provider amounts drawn under the Funding
Liquidity Facility on the previous Interest Payment Date in
order to repay principal due on the First Issuer Term AAA
Advances, the Second Issuer Series 1 Term AAA Advance, the Third
Issuer Series 1 Term AAA Advance, the Third Issuer Series 2 Term
AAA Advance, the Fourth Issuer Series 1 Term AAA Advance, the
Fourth Issuer Series 2 Term AAA Advance, the Fourth Issuer
Series 4 Term AAA Advance, the Fifth Issuer Series 1 Term AAA
Advance, the Fifth Issuer Series 2 Term AAA Advances, the Fifth
Issuer Series 3A1 Term AAA Advance, the Sixth Issuer Series 1
Term AAA Advance, the Sixth Issuer Series 2 Term AAA Advance,
the Sixth Issuer Series 3 Term AAA Advance and the Sixth Issuer
Series 4 Term AAA Advances;
(b) second, on each Interest Payment Date to replenish the First
Reserve Fund to the extent that monies have been drawn from the
First Reserve Fund on a previous Interest Payment Date and have
not been repaid, where such drawing was made for the purpose of
repaying principal amounts then due and payable on any of the
First Issuer Term AAA Advances, the Second Issuer Series 1 Term
AAA Advance, the Third Issuer Series 1 Term AAA Advance, the
Third Issuer Series 2 Term AAA Advance, the Fourth Issuer Series
1 Term AAA Advance, the Fourth Issuer Series 2 Term AAA Advance,
the Fourth Issuer Series 4 Term AAA Advance, the Fifth Issuer
Series 1 Term AAA Advance, the Fifth Issuer Series 2 Term AAA
Advances, the Fifth Issuer Series 3A1 Term AAA Advance, the
Sixth Issuer Series 1 Term AAA Advance, the Sixth Issuer Series
2 Term AAA Advance, the Sixth Issuer Series 3 Term AAA Advance
and the Sixth Issuer Series 4 Term AAA Advances; and
(c) third, (subject to the terms of this Deed and each Intercompany
Loan Agreement) on each Interest Payment Date to repay the Term
Advances (to the extent that amounts are then due and payable on
the Term Advances taking into account their relevant Scheduled
Repayment Dates and permitted repayment dates) in accordance
with the terms and provisions of each Intercompany Loan
Agreement and the relative Term Advance Rating of the Term
Advances so that Funding Available Principal Receipts will be
applied (pro rata and pari passu between Term Advances with the
same Term Advance Rating) to meet the principal repayments due
and payable (or due and payable subject to the availability of
Funding Available Principal Receipts) first on the Term Advances
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with the highest Term Advance Rating, and thereafter on the Term
Advances with the next highest Term Advance Rating, and so on,
down to the Term Advances with the lowest Term Advance Rating.
1.2 If on any Interest Payment Date, prior to the occurrence of a Trigger
Event or enforcement of the Funding Security, amounts are due and
payable under more than one Term AAA Advance, Funding shall apply
Funding Available Principal Receipts to repay such Term AAA Advances in
order according to their respective Final Maturity Dates, so that the
Term AAA Advance with the earliest Final Repayment Date is paid first,
and so on.
1.3 If any Term AAA Advances have the same Final Maturity Date, then Funding
shall apply Funding Available Principal Receipts to repay those Term AAA
Advances pro rata and pari passu according to the respective amounts
due. If on an Interest Payment Date prior to the occurrence of a Trigger
Event or enforcement of the Funding Security (the "RELEVANT INTEREST
PAYMENT DATE"):
(a) a Principal Loss has been recorded on the Principal Deficiency
Ledger in respect of any of the Term BBB Advances and/or the
Term AA Advances under any Intercompany Loan Agreement and such
Principal Loss has not been cured on the Relevant Interest
Payment Date; or
(b) monies standing to the credit of the First Reserve Fund have
been used, on or prior to the Relevant Interest Payment Date, to
cure a Principal Deficiency in respect of any of the Term BBB
Advances and/or the Term AA Advances under any Intercompany Loan
Agreement, and the First Reserve Fund has not been replenished
by a corresponding amount on the Relevant Interest Payment Date,
then the Term BBB Advances and (if there has been an amount debited to
the AA Principal Deficiency Sub Ledger as described in (a) above, or if
monies standing to the credit of the First Reserve Fund have been used
to cure a Principal Deficiency in respect of any Term AA Advance as
described in (b) above) the Term AA Advances, will not be entitled to
principal repayments until the relevant circumstance as described above
has been cured or otherwise ceases to exist.
1.4 If the aggregate Outstanding Principal Balance of Loans in the Mortgages
Trust, in respect of which the aggregate amount in arrear is more than
three times the monthly payment then due, is more than 5 per cent. of
the aggregate Outstanding Principal Balance of Loans in the Mortgages
Trust, then the Term BBB Advances and the Term AA will not be entitled
to principal repayments until that circumstance has been cured or
otherwise ceases to exist.
1.5 The principles set out in this CLAUSE 1 shall prevail except to the
extent that they are subject to the exceptions set out in CLAUSES 2 to 6
below (inclusive).
2. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS DURING A CASH
ACCUMULATION PERIOD OR A SCHEDULED AMORTISATION PERIOD
Subject to CLAUSES 1.1(a) and 1.1(b) above and CLAUSE 3.4 below, on and
from the commencement of a Cash Accumulation Period or a Scheduled
Amortisation Period (but prior to the occurrence of a Trigger Event or
enforcement of the Funding Security), Funding Available Principal
Receipts (except to the extent required to make payment in respect of
any other Bullet Term Advance or any Scheduled Amortisation Term Advance
with a Deemed AAA Rating in each case taken into account in determining
the commencement of a Cash
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Accumulation Period) will be deposited in the Funding GIC Account and
the amount of such deposits will be recorded on the Cash Accumulation
Ledger until the relevant Bullet Amount due in respect of the relevant
Bullet Term Advance has been saved by Funding or, as the case may be,
until the relevant Scheduled Amortisation Amount has been saved by
Funding.
Accordingly, during a Cash Accumulation Period, no payments will be made
in respect of any Payable Pass Through Term Advances or Payable
Scheduled Amortisation Term Advances under an Intercompany Loan
Agreement (unless that Scheduled Amortisation Term Advance has a Deemed
AAA Rating and a Scheduled Repayment Date thereof falls during the Cash
Accumulation Period), except as provided in CLAUSE 3.4 below.
3. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS TO PAY PASS THROUGH
TERM ADVANCES AND SCHEDULED AMORTISATION TERM ADVANCES IN CERTAIN
CIRCUMSTANCES
3.1 If:
(a) amounts are due and payable in respect of any Pass Through Term
Advances (the "PAYABLE PASS THROUGH TERM ADVANCES");
(b) no amounts are due and payable on any Scheduled Amortisation
Term Advances; and
(c) (i) the Cash Accumulation Period has not commenced in respect of
any Bullet Term Advance, or (ii) all Bullet Term Advances have
been repaid,
then, subject to CLAUSE 1 above and CLAUSES 3.2 and 3.3 below, on each
Interest Payment Date prior to the occurrence of a Trigger Event or
enforcement of the Funding Security, Funding or the Cash Manager on its
behalf will apply all Funding Available Principal Receipts to repay the
Payable Pass Through Term Advances.
3.2 If:
(a) amounts are due and payable on any Scheduled Amortisation Term
Advances(the "PAYABLE SCHEDULED AMORTISATION TERM ADVANCES");
(b) no amounts are due and payable on any Pass Through Term
Advances; and
(c) (i) the Cash Accumulation Period has not commenced in respect of
any Bullet Term Advance, or (ii) all Bullet Term Advances have
been repaid,
then, subject to CLAUSE 1 above and CLAUSE 3.3 below, on each Interest
Payment Date prior to the occurrence of a Trigger Event or enforcement
of the Funding Security, Funding or the Cash Manager on its behalf will
apply all Funding Available Principal Receipts to repay the Payable
Scheduled Amortisation Term Advances.
3.3 If:
(a) under an Intercompany Loan Agreement ("INTERCOMPANY LOAN
AGREEMENT A"), amounts are due and payable in respect of a Pass
Through Term Advance and/or a Scheduled Amortisation Term
Advance in either case which has a Term Advance
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Rating of "AAA" (the "SENIOR PAYABLE PASS THROUGH TERM ADVANCE"
and the "SENIOR PAYABLE SCHEDULED AMORTISATION TERM ADVANCE"
respectively);
(b) under a different Intercompany Loan Agreement ("INTERCOMPANY
LOAN AGREEMENT B"), amounts are due and payable in respect of a
Pass Through Term Advance and/or a Scheduled Amortisation Term
Advance in either case which does not have a Term Advance Rating
of "AAA" (the "SUBORDINATED PAYABLE PASS THROUGH TERM ADVANCE"
and the "SUBORDINATED PAYABLE SCHEDULED AMORTISATION TERM
ADVANCE" respectively); and
(c) there is no Cash Accumulation Period affecting payments under
either Intercompany Loan Agreement A or Intercompany Loan
Agreement B,
then on each Interest Payment Date prior to the occurrence of a Trigger
Event or enforcement of the Funding Security, Funding or the Cash
Manager on its behalf will apply Funding Available Principal Receipts:
(i) to repay the Senior Payable Pass Through Term Advance and the
Senior Payable Scheduled Amortisation Term Advance as follows:
Funding Share Principal Outstanding Principal Balance of Intercompany
Percentage x Receipts x Loan Agreement A
--------------------------------------------------
Aggregate Outstanding Principal Balance of all
Intercompany Loans
(ii) to repay the Subordinated Payable Pass Through Term Advance and
the Subordinated Payable Scheduled Amortisation Term Advance, as
follows:
Funding Share Principal Outstanding Principal Balance of the
Percentage x Receipts x Intercompany Loan Agreement B
------------------------------------------------
Aggregate Outstanding Principal Balance of all
Intercompany Loans
(d) If, after applying the Funding Share Percentage of Principal
Receipts to repay the Payable Pass Through Term Advance and the
Payable Scheduled Amortisation Term Advance pursuant to
paragraphs (i) and (ii) above, there is a shortfall in the
amount due and payable on that Interest Payment Date on the
Payable Scheduled Amortisation Term Advance, Funding will apply
those additional Principal Receipts received on the immediately
preceding Distribution Date under CLAUSE 9.1(d) of the Mortgages
Trust Deed (as amended and restated) towards repayment of the
relevant Payable Scheduled Amortisation Term Advance.
3.4 If:
(a) amounts are due and payable in respect of a Pass Through Term
Advance and/or a Scheduled Amortisation Term Advance made under
an Intercompany Loan Agreement ("INTERCOMPANY LOAN AGREEMENT
X"); and
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(b) in respect of a different Intercompany Loan Agreement
("INTERCOMPANY LOAN AGREEMENT Y"), the Cash Accumulation Period
in relation to a Bullet Term Advance made under Intercompany
Loan Agreement Y has commenced,
then (subject to CLAUSES 1.1(a), 1.1(b), 1.3 and 1.4 above) on each
Interest Payment Date, Funding or the Cash Manager on its behalf will
apply an amount equal to the amount determined as follows to repay the
outstanding Payable Pass Through Term Advances and the Payable
Scheduled Amortisation Term Advances under Intercompany Loan Agreement
X:
Funding Share Principal Outstanding Principal Balance of the
Percentage x Receipts x Intercompany Loan Agreement X
------------------------------------------------
Aggregate Outstanding Principal Balance of all
Intercompany Loans
If however, the relevant Interest Payment Date is also the Scheduled
Repayment Date for a Bullet Term Advance under Intercompany Loan
Agreement Y and there is not enough money to repay that Bullet Term
Advance and the outstanding Payable Pass Through Term Advances and the
outstanding Payable Scheduled Amortisation Term Advances under
Intercompany Loan Agreement X, then (to the extent that the relevant
Bullet Term Advance has a higher Term Advance Rating that then the
Payable Pass Through Term Advances or the Payable Scheduled Amortisation
Term Advances) all Funding Available Principal Receipts will be applied
to repay the Bullet Term Advance.
3.5 If the Scheduled Amortisation Period of the Fifth Issuer Series 1 Term
AAA Advance scheduled for repayment on the Interest Payment Date falling
in October 2002 is extended (because the monthly constant prepayment
rate on the Loans in the Mortgages Trust is less than 8 per cent. per
annum), then the extra amounts accumulated by Funding during the
extended Scheduled Amortisation Period will not be available for any
other purpose other than to repay the Fifth Issuer Series 1 Term AAA
Advance on the Scheduled Repayment Date in October 2002.
3.6 If the Scheduled Amortisation Period of the Sixth Issuer Series 1 Term
AAA Advance scheduled for repayment on the Interest Payment Date falling
in July 2003 is extended (because the monthly constant prepayment rate
on the Loans in the Mortgages Trust is less than 8 per cent. per annum),
then the extra amounts accumulated by Funding during the extended
Scheduled Amortisation Period will not be available for any other
purpose other than to repay the Sixth Issuer Series 1 Term AAA Advance
on the Scheduled Repayment Dates in July and October 2003.
4. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS FOLLOWING THE
OCCURRENCE OF A NON-ASSET TRIGGER EVENT
On and from the Interest Payment Date following the occurrence of a
Non-Asset Trigger Event but prior to enforcement of the Funding
Security, Funding shall (subject to CLAUSES 1.1(a) and 1.1(b) above)
repay the First Issuer, the Second Issuer, the Third Issuer, the Fourth
Issuer, the Fifth Issuer and the Sixth Issuer on each Interest Payment
Date from Funding Available Principal Receipts as follows:
(a) firstly, the Fifth Issuer Series 1 Term AAA Advance until the
Fifth Issuer Series 1 Term AAA Advance is fully repaid;
92
(b) secondly, the Sixth Issuer Series 1 Term AAA Advance until the
Sixth Issuer Series 1 Term AAA Advance is fully repaid;
(c) thirdly, the Second Issuer Series 1 Term AAA Advance until the
Second Issuer Series 1 Term AAA Advance is fully repaid;
(d) fourthly, the Third Issuer Series 1 Term AAA Advance until the
Third Issuer Series 1 Term AAA Advance is fully repaid;
(e) fifthly, the First Issuer Series 1 Term AAA Advance until the
First Issuer Series 1 Term AAA Advance is fully repaid;
(f) sixthly, in no order of priority between them but in proportion
to the respective amounts due, the Fifth Issuer Series 2A1 Term
AAA Advance and the Fifth Issuer Series 2A2 Term AAA Advance
until both those Fifth Issuer Series 2 Term AAA Advances are
fully repaid;
(g) seventhly, the Third Issuer Series 2 Term AAA Advance until the
Third Issuer Series 2 Term AAA Advance is fully repaid;
(h) eighthly, the First Issuer Series 2 Term AAA Advance until the
First Issuer Series 2 Term AAA Advance is fully repaid;
(i) ninthly, the Sixth Issuer Series 2 Term AAA Advance until the
Sixth Issuer Series 2 Term AAA Advance is fully repaid;
(j) tenthly, the Fourth Issuer Series 2 Term AAA Advance until the
Fourth Issuer Series 2 Term AAA Advance is fully repaid;
(k) eleventhly, the Fifth Issuer Series 3A1 Term AAA Advance until
the Fifth Issuer Series 3A1 Term AAA Advance is fully repaid;
(l) twelfthly, in no order of priority between them but in
proportion to the respective amounts due the Fourth Issuer
Series 4 Term AAA Advance, the Sixth Issuer Series 3 Term AAA
Advance and the Sixth Issuer Series 4 Term AAA Advances until
all those Term AAA Advances are fully repaid;
(m) thirteenthly, the First Issuer Series 3 Term AAA Advance until
the First Issuer Series 3 Term AAA Advance is fully repaid;
(n) fourteenthly, the First Issuer Series 4 Term AAA Advance until
the First Issuer Series 4 Term AAA Advance is fully repaid;
(o) fifteenthly, the Fourth Issuer Series 1 Term AAA Advance until
the Fourth Issuer Series 1 Term AAA Advance is fully repaid;
(p) sixteenthly, the Second Issuer Series 2 Term AAA Advance until
the Second Issuer Series 2 Term AAA Advance is fully repaid;
93
(q) seventeenthly, the Second Issuer Series 3 Term AAA Advance until
the Second Issuer Series 3 Term AAA Advance is fully repaid;
(r) eighteenthly, in no order of priority between them but in
proportion to the respective amounts due, the Second Issuer
Series 4 Term AAA Advance, the Third Issuer Series 3 Term AAA
Advance, the Fourth Issuer Series 3 Term AAA Advance, the Fifth
Issuer Series 3A2 Term AAA Advance and the Sixth Issuer Series 5
Term AAA Advance until all of these Issuer Term AAA Advances are
fully repaid;
(s) nineteenthly, pro rata and pari passu (according to the
respective amounts outstanding of the Term AA Advances), the
First Issuer Term AA Advances, the Second Issuer Term AA
Advances, the Third Issuer Term AA Advances, the Fourth Issuer
Term AA Advances, the Fifth Issuer Term AA Advances and the
Sixth Issuer Term AA Advances until all the Term AA Advances are
fully repaid; and
(t) twentiethly, pro rata and pari passu (according to the
respective amounts outstanding of the Term BBB Advances), the
First Issuer Term BBB Advances, the Second Issuer Term BBB
Advances, the Third Issuer Term BBB Advances, the Fourth Issuer
Term BBB Advances, the Fifth Issuer Term BBB Advances and the
Sixth Issuer Term BBB Advances until all the Term BBB Advances
are fully repaid.
5. APPLICATION OF FUNDING AVAILABLE PRINCIPAL RECEIPTS FOLLOWING THE
OCCURRENCE OF AN ASSET TRIGGER EVENT
Following the occurrence of an Asset Trigger Event but prior to
enforcement of the Funding Security, Funding shall (subject to CLAUSES
1.1(a) and 1.1(b) above) repay the First Issuer, the Second Issuer, the
Third Issuer, the Fourth Issuer, the Fifth Issuer and the Sixth Issuer
on each Interest Payment Date from Funding Available Principal Receipts:
(a) firstly, pro rata and pari passu (according to the respective
amounts outstanding of each Term AAA Advance) the First Issuer
Term AAA Advances, the Second Issuer Term AAA Advances, the
Third Issuer Term AAA Advances, the Fourth Issuer Term AAA
Advances, the Fifth Issuer Term AAA Advances and the Sixth
Issuer Term AAA Advances until all the Term AAA Advances are
fully repaid;
(b) secondly, pro rata and pari passu (according to the respective
amounts outstanding of each Term AA Advance) the First Issuer
Term AA Advances, the Second Issuer Term AA Advances, the Third
Issuer Term AA Advances, the Fourth Issuer Term AA Advances, the
Fifth Issuer Term AA Advances and the Sixth Issuer Term AA
Advances until all the Term AA Advances are fully repaid; and
(c) thirdly, pro rata and pari passu (according to the respective
amounts outstanding of each Term BBB Advance) the First Issuer
Term BBB Advances, the Second Issuer Term BBB Advances, the
Third Issuer Term BBB Advances, the Fourth Issuer Term BBB
Advances, the Fifth Issuer Term BBB Advances and the Sixth
Issuer Term BBB Advances until all the Term BBB Advances are
fully repaid.
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6. EFFECT ON BULLET TERM ADVANCES AND SCHEDULED AMORTISATION TERM ADVANCES
WHEN A TRIGGER EVENT OCCURS OR WHEN THE ISSUER SECURITY IS ENFORCED
6.1 If a Trigger Event occurs then (i) the Scheduled Repayment Dates of the
Bullet Term Advances and the Scheduled Amortisation Term Advances made
under each Intercompany Loan Agreement will cease to apply and each such
Term Advance shall be repaid, subject to the terms of this SCHEDULE 3,
on each Interest Payment Date to the extent of Funding Available
Principal Receipts therefor and (ii) all Bullet Term Advances and
Scheduled Amortisation Term Advances made under the Intercompany Loan
Agreements will be deemed to be Payable Pass Through Term Advances.
6.2 If the First Issuer Security is enforced under the First Issuer Deed of
Charge and/or the Second Issuer Security is enforced under the Second
Issuer Deed of Charge and/or the Third Issuer Security is enforced under
the Third Issuer Deed of Charge and/or the Fourth Issuer Security is
enforced under the Fourth Issuer Deed of Charge and/or the Fifth Issuer
Security is enforced under the Fifth Issuer Deed of Charge and/or the
Sixth Issuer Security is enforced under the Sixth Issuer Deed of Charge,
then (as applicable) (i) the Scheduled Repayment Dates of any
outstanding Bullet Term Advances and any Scheduled Amortisation Term
Advances made under, as the case may be, the First Issuer Intercompany
Loan Agreement and/or the Second Issuer Intercompany Loan Agreement
and/or the Third Issuer Intercompany Loan Agreement and/or the Fourth
Issuer Intercompany Loan Agreement and/or the Fifth Issuer Intercompany
Loan Agreement and/or the Sixth Issuer Intercompany Loan Agreement will
cease to apply and each such Term Advance shall be repaid, subject to
the terms of this SCHEDULE 3, on each Interest Payment Date to the
extent of Funding Available Principal Receipts therefore and (ii) all
Bullet Term Advances and any Scheduled Amortisation Term Advances made
under, as the case may be, the First Issuer Intercompany Loan Agreement
and/or the Second Issuer Intercompany Loan Agreement and/or the Third
Issuer Intercompany Loan Agreement and/or the Fourth Issuer Intercompany
Loan Agreement and/or the Fifth Issuer Intercompany Loan Agreement
and/or the Sixth Issuer Intercompany Loan Agreement will be deemed to be
Payable Pass Through Term Advances.
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PART III
FUNDING POST-ENFORCEMENT PRIORITY OF PAYMENTS
All the monies received or recovered by the Security Trustee (or a Receiver
appointed on its behalf) following service of an Intercompany Loan Enforcement
Notice shall be applied (save to the extent required otherwise by law) on each
Interest Payment Date (except for amounts due to the Account Bank under items
(c) below, which will be paid when due) in the following order of priority (and
to the extent that payments or provisions of a higher priority have been made in
full):
(a) firstly, in or towards satisfaction, pro rata and pari passu according
to the respective amounts thereof, of:
(i) any remuneration then due and payable to the Security Trustee
and any Receiver appointed by the Security Trustee and any other
amounts due or to become due in the immediately succeeding
Interest Period to the Security Trustee and the Receiver under
the provisions of the Amended and Restated Funding Deed of
Charge together with interest and any amounts in respect of VAT
thereon as provided therein;
(ii) any amounts due to the First Issuer in respect of its
obligations specified in items (a) to (c) of the First Issuer
Post-Enforcement Priority of Payments;
(iii) any amounts due to the Second Issuer in respect of its
obligations specified in items (a) to (c) of the Second Issuer
Post-Enforcement Priority of Payments;
(iv) any amounts due to the Third Issuer in respect of its
obligations specified in items (a) to (c) of the Third Issuer
Post-Enforcement Priority of Payments;
(v) any amounts due to the Fourth Issuer in respect of its
obligations specified in items (a) to (c) of the Fourth Issuer
Post-Enforcement Priority of Payments;
(vi) any amounts due to the Fifth Issuer in respect of its
obligations specified in items (a) to (c) of the Fifth Issuer
Post-Enforcement Priority of Payments; and
(vii) any amounts due to the Sixth Issuer in respect of its
obligations specified in items (a) to (c) of the Sixth Issuer
Post-Enforcement Priority of Payments;
(b) secondly, in or towards satisfaction of any remuneration then due and
payable to the Cash Manager and any costs, charges, liabilities and
expenses then due or to become due and payable in the immediately
succeeding Interest Period to the Cash Manager under the provisions of
the Cash Management Agreement, together with any amounts in respect of
VAT thereon as provided therein;
(c) thirdly, in or towards satisfaction pro rata and pari passu of any
amounts due to the Account Bank (including costs) pursuant to the terms
of the Bank Account Agreement and the Corporate Services Provider
pursuant to the Corporate Services Agreement;
(d) fourthly, in or towards satisfaction pro rata and pari passu of those
amounts due and payable (if any) by Funding to (i) the Funding Swap
Provider pursuant to the Funding Swap Agreement (except for any
termination payments due and payable by Funding under the
96
Funding Swap Agreement following a Funding Swap Provider Default) and
(ii) the Funding Liquidity Facility Provider under the Funding Liquidity
Facility Agreement (except for any Funding Liquidity Subordinated
Amounts);
(e) fifthly, to pay pro rata and pari passu (according to the respective
amount of each Term AAA Advance outstanding), interest and principal due
and payable on the First Issuer Term AAA Advances, the Second Issuer
Term AAA Advances, the Third Issuer Term AAA Advances, the Fourth Issuer
Term AAA Advances, the Fifth Issuer Term AAA Advances and the Sixth
Issuer Term AAA Advances;
(f) sixthly, to pay pro rata and pari passu (according to the respective
amount of each Term AA Advance outstanding), interest and principal due
and payable on the First Issuer Term AA Advances, the Second Issuer Term
AA Advances, the Third Issuer Term AA Advances, the Fourth Issuer Term
AA Advances, the Fifth Issuer Term AA Advances and the Sixth Issuer Term
AA Advances;
(g) seventhly, to pay pro rata and pari passu (according to the respective
amount of each Term BBB Advance outstanding), interest and principal due
and payable on the First Issuer Term BBB Advances, the Second Issuer
Term BBB Advances, the Third Issuer Term BBB Advances, the Fourth Issuer
Term BBB Advances, the Fifth Issuer Term BBB Advances and the Sixth
Issuer Term BBB Advances;
(h) eighthly, to pay pro rata and pari passu according to the respective
amounts outstanding thereof:
(i) amounts due to the First Issuer in respect of the First Issuer's
obligation (if any) to make a termination payment to any First
Issuer Swap Provider (but excluding any termination payment due
to a First Issuer Swap Provider as a result of a First Issuer
Swap Provider Default);
(ii) amounts due to the Second Issuer in respect of the Second
Issuer's obligation (if any) to make a termination payment to
any Second Issuer Swap Provider (but excluding any termination
payment due to a Second Issuer Swap Provider as a result of a
Second Issuer Swap Provider Default);
(iii) amounts due to the Third Issuer in respect of the Third Issuer's
obligation (if any) to make a termination payment to any Third
Issuer Swap Provider (but excluding any termination payment due
to a Third Issuer Swap Provider as a result of a Third Issuer
Swap Provider Default);
(iv) amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligation (if any) to make a termination payment to
any Fourth Issuer Swap Provider (but excluding any termination
payment due to a Fourth Issuer Swap Provider as a result of a
Fourth Issuer Swap Provider Default);
(v) amounts due to the Fifth Issuer in respect of the Fifth Issuer's
obligation (if any) to make a termination payment to any Fifth
Issuer Swap Provider (but excluding any termination payment due
to a Fifth Issuer Swap Provider as a result of a Fifth Issuer
Swap Provider Default); and
97
(vi) amounts due to the Sixth Issuer in respect of the Sixth Issuer's
obligation (if any) to make a termination payment to any Sixth
Issuer Swap Provider (but excluding any termination payment due
to a Sixth Issuer Swap Provider as a result of a Sixth Issuer
Swap Provider Default);
(i) ninthly, to pay interest and principal due and payable on the Fourth
Issuer Term BB Advance;
(j) tenthly, to pay pro rata and pari passu according to the respective
amounts outstanding thereof:
(i) any amounts due to the First Issuer in respect of the First
Issuer's obligations specified in items (g), (h), (i) and (j) of
the First Issuer Post-Enforcement Priority of Payments;
(ii) any amounts due to the Second Issuer in respect of the Second
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Second Issuer Post-Enforcement Priority of Payments;
(iii) any amounts due to the Third Issuer in respect of the Third
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Third Issuer Post-Enforcement Priority of Payments;
(iv) any amounts due to the Fourth Issuer in respect of the Fourth
Issuer's obligations specified in items (h), (i), (j) and (k) of
the Fourth Issuer Post-Enforcement Priority of Payments;
(v) any amounts due to the Fifth Issuer in respect of the Fifth
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Fifth Issuer Post-Enforcement Priority of Payments;
(vi) any amounts due to the Sixth Issuer in respect of the Sixth
Issuer's obligations specified in items (g), (h), (i) and (j) of
the Sixth Issuer Post-Enforcement Priority of Payments;
(vii) any other amounts due to the First Issuer in respect of any
other obligation of Funding under the First Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(viii) any other amounts due to the Second Issuer in respect of any
other obligation of Funding under the Second Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(ix) any other amounts due to the Third Issuer in respect of any
other obligation of Funding under the Third Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(x) any other amounts due to the Fourth Issuer in respect of any
other obligation of Funding under the Fourth Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
98
(xi) any other amounts due to the Fifth Issuer in respect of any
other obligation of Funding under the Fifth Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(xii) any other amounts due to the Sixth Issuer in respect of any
other obligation of Funding under the Sixth Issuer Intercompany
Loan Agreement and not otherwise provided for earlier in this
order of priority of payments;
(xiii) after the occurrence of a Funding Swap Provider Default, to the
Funding Swap Provider in respect of any termination payment due
and payable by Funding under the Funding Swap Agreement; and
(xiv) the Funding Liquidity Facility Provider in respect of Funding
Liquidity Subordinated Amounts;
(k) eleventhly, to pay any amounts due to the First Start-up Loan Provider,
the Second Start-up Loan Provider, the Third Start-up Loan Provider, the
Fourth Start-up Loan Provider, the Fifth Start-up Loan Provider and the
Sixth Start-up Loan Provider under the Start-up Loan Agreements;
(l) twelfthly, to pay any Postponed Deferred Consideration; and
(m) thirteenthly, to pay any Deferred Consideration other than that referred
to in item (l) above.
