Exhibit 4.4
EXECUTION VERSION
Dated 24 September 2003
GRANITE MORTGAGES 03-3 PLC
as Current Issuer
THE BANK OF NEW YORK
as Note Trustee
- and -
OTHERS
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ISSUER DEED OF CHARGE
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SIDLEY XXXXXX XXXXX & XXXX
0 Xxxxxxxxxxxx Xxxxxx
XXXXXX XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
CONTENTS
1. Interpretation.......................................................................................2
2. Covenant to Pay and to Perform.......................................................................3
3. Current Issuer Security..............................................................................4
4. Release of Current Issuer Charged Property...........................................................9
5. Declaration of Trust................................................................................10
6. Restrictions on Exercise of Certain Rights..........................................................10
7. Enforcement.........................................................................................14
8. Upon Enforcement....................................................................................16
9. Receiver............................................................................................19
10. Further Assurance and Power of Attorney.............................................................22
11. Crystallisation.....................................................................................23
12. Provisions relating to the Security.................................................................25
13. Protection of Third Parties.........................................................................26
14. Set-Off.............................................................................................27
15. Representations and Covenants.......................................................................27
16. Note Trustee Provisions.............................................................................32
17. Modification and Waiver.............................................................................33
18. Miscellaneous Provisions............................................................................34
19. Rights cumulative...................................................................................35
20. Assignment..........................................................................................35
21. Non Petition Covenant; Corporate Obligations........................................................35
22. Notices.............................................................................................36
23. Third Party Rights..................................................................................37
24. Execution in Counterparts; Severability.............................................................37
25. Governing Law and Jurisdiction; Appropriate Forum...................................................37
SCHEDULE 1...................................................................................................39
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SCHEDULE 2...................................................................................................42
SCHEDULE 3...................................................................................................47
EXECUTION PAGE...............................................................................................50
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THIS DEED OF CHARGE is made on 24 September 2003
BETWEEN:
(1) GRANITE MORTGAGES 03-3 PLC (registered number 4823268) a public limited
company incorporated under the laws of England and Wales whose registered
office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX as Current
Issuer;
(2) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx
Xxxxxxx, in its capacity as Note Trustee;
(3) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, in its capacity as Principal Paying Agent;
(4) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, in its capacity as Agent Bank;
(5) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, in its capacity as Registrar;
(6) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, in its capacity as Transfer Agent;
(7) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx, Xxxxxx
XX0X 0XX, in its capacity as Account Bank;
(8) CITIBANK, N.A., acting through its office at 000 Xxxx Xxxxxx, 14th Floor,
Zone 3, New York, N.Y. 10043, U.S.A., in its capacity as US Paying Agent;
(9) NORTHERN ROCK PLC (registered number 03273685) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX, in its
capacity as Current Issuer Cash Manager;
(10) NORTHERN ROCK PLC (registered number 03273685) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX, in its
capacity as Basis Rate Swap Provider;
(11) SWISS RE FIANACIAL PRODUCTS CORPORATION a company whose registered branch
office is 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in its capacity
as Dollar Currency Swap Provider;
(12) CITBANK, N.A. LONDON BRANCH acting through its office at Citigroup
Centre, 00 Xxxxxx Xxxxxx, Xxxxxx X00 0XX in its capacity as Euro Currency
Swap Provider;
(13) LAW DEBENTURE CORPORATE SERVICES LIMITED (registered number 3388362) a
private limited company incorporated under the laws of England and Wales
whose registered office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X
0XX as the Corporate Services Provider.
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WHEREAS:
(A) This Deed secures and will secure, inter alia, the Current Issuer Secured
Obligations.
(B) The Current Issuer will on the date of this Current Issuer Deed of Charge
issue the Current Issuer Notes pursuant to the Current Issuer Trust Deed.
(C) The Paying Agents, the Agent Bank, the Registrar and the Transfer Agent
have agreed to provide certain agency services on behalf of the Current
Issuer for the benefit of the Noteholders on the terms set out in the
Current Issuer Paying Agent and Agent Bank Agreement.
(D) The Current Issuer Cash Manager has agreed to act as cash manager and to
provide certain administration and cash management services to the
Current Issuer on the terms set out in the Current Issuer Cash Management
Agreement.
(E) The Account Bank has agreed to provide certain bank account services to
the Current Issuer on the terms set out in the Current Issuer Bank
Account Agreement.
(F) The Dollar Currency Swap Provider has agreed to enter into
dollar/sterling currency swaps with the Current Issuer in relation to
Dollar Notes on the terms set out in the Current Issuer Dollar Currency
Swap Agreements.
(G) The Euro Currency Swap Provider has agreed to enter into euro/sterling
currency swaps with the Current Issuer in relation to the Euro Notes on
the terms set out in the Current Issuer Euro Currency Swap Agreements.
(I) The Basis Rate Swap Provider has agreed to enter into an interest rate
swap with the Current Issuer on the terms set out in the Current Issuer
Basis Rate Swap Agreement.
(J) The Corporate Services Provider has agreed to act as corporate services
provider to, inter alios, the Current Issuer on the terms set out in the
Current Issuer Corporate Services Agreement.
(K) This Current Issuer Deed of Charge is supplemental to the Current Issuer
Trust Deed of even date herewith and made between the Current Issuer and
the Note Trustee relating to the issuance of the Current Issuer Notes.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. Interpretation
1.1 Definitions: The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule Sixth
Amendment Deed made on 24 September 2003 between, among others, the
Seller, Funding and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx on 21
May 2003,
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(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Agreement.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Master Definitions Schedule.
1.2 Construction: In this Current Issuer Deed of Charge, except where the
context otherwise requires:
(a) the terms of the Current Issuer Trust Deed and of any agreement in
existence at the date hereof between the parties hereto are
incorporated in this Current Issuer Deed of Charge but (unless
otherwise expressly provided for herein) only to the extent required
to ensure that any proposed disposition of the Current Issuer
Charged Property contained in this Current Issuer Deed of Charge is
a valid disposition in accordance with Section 2(1) of the Law of
Property (Miscellaneous Provisions) Xxx 0000;
(b) a reference in this Current Issuer Deed of Charge to any property,
assets, undertakings or rights includes, unless the context
otherwise requires, present and future property, assets,
undertakings or rights; and
(c) "this Current Issuer Deed of Charge" means this Current Issuer Deed
of Charge and all the Schedules hereto (as from time to time
modified and/or supplemented in accordance with the provisions set
out herein) and each other document or deed entered into pursuant
hereto (as from time to time modified/and or supplemented as
aforesaid) and expressed to be supplemental hereto.
2. Covenant to Pay and to Perform
Subject to the provisions of the Current Issuer Transaction Documents
(including, in the case of the Current Issuer Notes, to Clause 2
(Covenant to Repay etc.) of the Current Issuer Trust Deed), the Current
Issuer covenants with and undertakes to the Note Trustee for itself and
as trustee for the Current Issuer Secured Creditors that it will:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable by the Current Issuer
to the Note Trustee (whether for its own account or as trustee for
the Current Issuer Secured Creditors) or to any of the other Current
Issuer Secured Creditors, whether actually or contingently, under
this Current Issuer Deed of Charge and/or any of the other Current
Issuer Transaction Documents (including without limitation the
Current Issuer Notes); and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Current Issuer Deed of Charge and/or any of
the other Current Issuer Transaction Documents (including without
limitation the Current Issuer Notes),
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PROVIDED THAT every payment in respect of any Current Issuer Transaction
Document made to the relevant Current Issuer Secured Creditor in the
manner provided in such Current Issuer Transaction Document shall operate
in satisfaction pro tanto of the relative covenant by the Current Issuer
in this Clause 2 (Covenant to Pay and Perform).
3. Current Issuer Security
3.1 Funding Charged Property:
(a) The Current Issuer, by way of first fixed security for the payment
or discharge of the Current Issuer Secured Obligations, subject to
Clause 4 (Release of Current Issuer Charged Property), hereby
assigns to the Note Trustee, save to the extent that any of the
Current Issuer's rights and claims in respect thereof derive from
property which is situated in Jersey at any relevant time, all of
its right, title, benefit and interest and all claims, present and
future, in and to, the security and all property, assets and rights
and claims held on trust by the Security Trustee for the payment or
discharge of the relevant Funding Secured Obligations pursuant to
the Funding Deed of Charge including all rights to receive payment
of any amount which may become payable to the Current Issuer
thereunder and all rights to serve notices and/or make demands
thereunder and/or to take such steps as are required to cause
payments to become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds of any
of the foregoing, TO HOLD the same unto the Note Trustee absolutely;
and
(b) To the intent that the Note Trustee shall have a security interest
in accordance with the Security Interests (Jersey) Law 1983 (the
"Jersey Security Law") (and as secured party for the purposes of
such law) for payment or discharge of the Current Issuer Secured
Obligations, subject to Clause 4 (Release of Current Issuer Charged
Property), the Current Issuer (as debtor for the purposes of the
Jersey Security Law) hereby assigns to the extent that the same may
be situate in Jersey at any relevant time to the Note Trustee all of
its right, title, benefit and interest and all claims, present and
future, in and to, the security and all property, assets and rights
and claims held on trust by the Security Trustee for the payment or
discharge of the relevant Funding Secured Obligations pursuant to
the Funding Deed of Charge including all rights to receive payment
of any amount which may become payable to the Current Issuer
thereunder and all rights to serve notices and/or make demands
thereunder and/or to take such steps as are required to cause
payments to become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds of any
of the foregoing, TO HOLD the same unto the Note Trustee absolutely.
3.2 Contractual rights:
(a) The Current Issuer, by way of first fixed security for the payment
or discharge of the Current Issuer Secured Obligations, subject to
Clause 4 (Release of Current Issuer Charged Property), hereby
assigns to the Note Trustee, save to
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the extent that any of the Current Issuer's rights and claims in
respect thereof derive from property which is situated in Jersey at
any relevant time, all of its right, title, benefit and interest,
present and future, in, to and under:
(i) the Current Issuer Intercompany Loan Agreement;
(ii) (to the extent not assigned pursuant to Clause 3.1(a)) the
Funding Deed of Charge (including, for the avoidance of
doubt, the Current Issuer Deed of Accession);
(iii) the Current Issuer Swap Agreements;
(iv) the Current Issuer Bank Account Agreement;
(v) the Current Issuer Cash Management Agreement;
(vi) the Current Issuer Paying Agent and Agent Bank Agreement;
(vii) the Current Issuer Trust Deed;
(viii) the Current Issuer Notes;
(ix) the Current Issuer Underwriting Agreement;
(x) the Current Issuer Subscription Agreement;
(xi) the Current Issuer Post-Enforcement Call Option Agreement;
(xii) the Current Issuer Corporate Services Agreement;
(xiii) any Swap Collateral Ancillary Document; and
(xiv) each other Current Issuer Transaction Document (other than
this Current Issuer Deed of Charge) entered into or to be
entered into by the Current Issuer pursuant to or in
connection with any of the documents set out in paragraphs
(i) through (xii) above (including any agreement entered into
by the Current Issuer as a replacement of any of the above
agreements upon the termination of such agreement),
including, without limitation, all rights to receive payment of any
amounts which may become payable to the Current Issuer thereunder
and all payments received by the Current Issuer thereunder
including, without limitation, all rights to serve notices and/or
make demands thereunder and/or to take such steps as are required to
cause payments to become due and payable thereunder and all rights
of action in respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds of any
of the foregoing, TO HOLD the same unto the Note Trustee absolutely.
(b) To the intent that the Note Trustee shall have a security interest
in accordance with the Jersey Security Law (and as secured party for
the purposes of such law) for payment or discharge of the Current
Issuer Secured Obligations, subject to Clause 4 (Release of Current
Issuer Charged Property), the Current
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Issuer (as debtor for the purposes of the Jersey Security Law)
hereby assigns to the extent that the same may be situate in Jersey
at any relevant time to the Note Trustee all of its right, title,
benefit and interest, present and future, in, to and under:
(i) the Current Issuer Intercompany Loan Agreement;
(ii) (to the extent not assigned pursuant to Clause 3.1(a)) the
Funding Deed of Charge (including, for the avoidance of
doubt, the Current Issuer Deed of Accession);
(iii) the Current Issuer Swap Agreements;
(iv) the Current Issuer Bank Account Agreement;
(v) the Current Issuer Cash Management Agreement;
(vi) the Current Issuer Paying Agent and Agent Bank Agreement;
(vii) the Current Issuer Trust Deed;
(viii) the Current Issuer Notes;
(ix) the Current Issuer Underwriting Agreement;
(x) the Current Issuer Subscription Agreement;
(xi) the Current Issuer Post-Enforcement Call Option Agreement;
(xii) the Current Issuer Corporate Services Agreement;
(xiii) any Swap Collateral Ancillary Document; and
(xiv) each other Current Issuer Transaction Document (other than
this Current Issuer Deed of Charge) entered into or to be
entered into by the Current Issuer pursuant to or in
connection with any of the documents set out in paragraphs
(i) through (xii) above (including any agreement entered into
by the Current Issuer as a replacement of any of the above
agreements upon the termination of such agreement),
including, without limitation, all rights to receive payment of any
amounts which may become payable to the Current Issuer thereunder
and all payments received by the Current Issuer thereunder
including, without limitation, all rights to serve notices and/or
make demands thereunder and/or to take such steps as are required to
cause payments to become due and payable thereunder and all rights
of action in respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds of any
of the foregoing, TO HOLD the same unto the Note Trustee absolutely.
3.3 Accounts: The Current Issuer, by way of first fixed security for the
payment or discharge of the Current Issuer Secured Obligations, subject
to Clause 4 (Release of Current Issuer Charged Property), hereby assigns
in favour of the Note Trustee all of
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its rights, title, benefit and interest, present and future, in and to:
(a) the Current Issuer Transaction Accounts;
(b) any Swap Collateral Accounts; and
(c) each other account (if any) in which the Current Issuer may at any
time have or acquire any right, title, benefit or interest,
and all monies or securities now or at any time hereafter standing to the
credit thereof and the debts represented by them together with all rights
and claims relating or attached thereto including, without limitation,
the right to interest or other income or distributions and the proceeds
of any of the foregoing, TO HOLD the same unto the Note Trustee
absolutely.
3.4 Authorised Investments and Swap Collateral: The Current Issuer, by way of
first fixed charge for the payment or discharge of the Current Issuer
Secured Obligations, subject to Clause 4 (Release of Current Issuer
Charged Property), hereby charges in favour of the Note Trustee all of
its right, title, benefit and interest, present and future in, to and
under:
(a) any Authorised Investment purchased using monies standing to the
credit of any Current Issuer Bank Account; and
(b) any Swap Collateral in the form of securities,
for the time being owned by it and all rights in respect of or ancillary
to such Authorised Investments and such Swap Collateral, including the
right to income and distributions and the proceeds of any of the
foregoing, TO HOLD the same unto the Note Trustee absolutely.
3.5 Floating Charge: The Current Issuer, by way of first floating charge for
the payment or discharge of the Current Issuer Secured Obligations,
subject to Clause 4 (Release of Current Issuer Charged Property), hereby
charges in favour of the Note Trustee the whole of its undertaking and
all its property, assets and rights, whatsoever and wheresoever, both
present and future, including without limitation its uncalled capital,
other than any property or assets for the time being the subject of a
fixed charge or effectively assigned pursuant to any of the foregoing
provisions of this Clause 3 (Current Issuer Security).
3.6 Title Guarantee: Each of the dispositions of, assignments of and charges
over property effected in or pursuant to this Clause 3 (Current Issuer
Security) is made with full title guarantee.
3.7 Further Acquired Items: For the avoidance of doubt, it is hereby
confirmed that the Security Interests (including the Jersey Security
Interests) created under or pursuant to Clauses 3.1 (Funding Charged
Property) to Clause 3.4 (Authorised Investments and Swap Collateral)
(inclusive) are intended to be specific and fixed assignments, or
specific and fixed charges over (as the case may be) the property and
assets to which they relate, both present and future, including property
and assets which are acquired after the date hereof.
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3.8 No Transfer of Obligations: Notwithstanding anything else in this Current
Issuer Deed of Charge, it is hereby agreed that dispositions of property
effected in or pursuant to this Clause 3 (Current Issuer Security) do not
transfer obligations, and nothing herein shall be construed as a transfer
of obligations to, the Note Trustee.
3.9 Notice and Acknowledgement:
(a) The execution of this Current Issuer Deed of Charge by any Current
Issuer Secured Creditor shall constitute express notice to such
Current Issuer Secured Creditor of the assignments, charges and
Security Interests (including the Jersey Security Interests) made by
the Current Issuer pursuant to this Clause 3 (Current Issuer
Security).
(b) By its execution of this Current Issuer Deed of Charge each Current
Issuer Secured Creditor acknowledges and consents to the
assignments, charges and Security Interests (including the Jersey
Security Interests) made or granted by the Current Issuer under this
Clause 3 (Current Issuer Security) and also acknowledges that as at
the date hereof it has not received from any other person notice of
any assignment or charge of any property the subject of such
Security Interests.
(c) Notwithstanding the assignments, charges and Security Interests
granted under or pursuant to this Clause 3 (Current Issuer Security)
and subject as provided otherwise in this Current Issuer Deed of
Charge, each of the parties hereto acknowledges that:
(i) each Current Issuer Secured Creditor and each other party to
any Current Issuer Transaction Document may continue to make
all payments becoming due to the Current Issuer under any
Current Issuer Transaction Document in the manner envisaged
by such Current Issuer Transaction Document until the receipt
of written notice from the Note Trustee or any Receiver
requiring payments to be made otherwise; and
(ii) until the Current Issuer Security becomes enforceable in
accordance with Clause 7.2 (Enforceable), the Current Issuer
shall be entitled to exercise its rights, powers and
discretions and perform its obligations in relation to the
Current Issuer Charged Property and under the Current Issuer
Transaction Documents in accordance with the provisions of
the Current Issuer Transaction Documents.
3.10 Note Trustee's Discretion in relation to Current Issuer Charged Property:
Without prejudice to any other rights of the Note Trustee after the
security created under this Current Issuer Deed of Charge has become
enforceable and subject to the terms of the Current Issuer Transaction
Documents, the Note Trustee may from time to time at any time after any
part or parts of the Current Issuer Security becomes enforceable:
(a) enter into, make, execute, sign, deliver and do all such contracts,
agreements, deeds, receipts, payments, assignments, transfers,
conveyances, assurances and things and bring, prosecute, enforce,
defend and abandon all such actions,
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suits and proceedings in relation to the Current Issuer Charged
Property as it may think expedient;
(b) exercise or refrain from exercising, in such manner as in its
absolute discretion the Note Trustee shall think fit, all or any of
the rights, powers, authorities, discretions or remedies of the
Current Issuer under or in relation to the Current Issuer Charged
Property or incidental to the ownership thereof and, in particular
but without limiting the generality of the foregoing, exercise all
rights to vote or to give any consent or notification or make any
declaration in relation to such Current Issuer Charged Property. For
the avoidance of doubt, the Note Trustee shall not be required to
have regard to the interests of the Current Issuer in the exercise
or non-exercise of any such rights, powers, authorities, discretions
and remedies or to comply with any direction given by the Current
Issuer in relation thereto; and
(c) demand, xxx for and take any advice or institute any proceedings to
recover or obtain payment of any amounts which may then be due and
payable to the Current Issuer but which remains unpaid under or in
respect of the Current Issuer Charged Property or any part thereof
either in its own name or in the name of the Current Issuer.
4. Release of Current Issuer Charged Property
4.1 Release, Reassignment or Discharge: Upon the irrevocable and
unconditional payment in full or discharge (or any combination of the
foregoing) of all the Current Issuer Secured Obligations and upon the
Note Trustee being satisfied that the Current Issuer is under no further
actual or contingent obligation under this Current Issuer Deed of Charge
or any other Current Issuer Transaction Document, the Note Trustee shall,
at the request and cost of the Current Issuer, release, reassign and/or
discharge from the Security Interests (including the Jersey Security
Interests) all of the Current Issuer Charged Property to, or to the order
of, the Current Issuer; provided that where any such release,
re-assignment or discharge is made in whole or in part on the faith of
any payment, security or other disposition which is avoided or which must
be repaid on bankruptcy, liquidation or otherwise, the security
constituted by this Current Issuer Deed of Charge and the liability of
the Current Issuer hereunder shall continue as if there had been no such
release, re-assignment or discharge.
4.2 Disposal of Authorised Investments and Swap Collateral: On the making at
any time by the Current Issuer Cash Manager on behalf of the Current
Issuer of a disposal of any Authorised Investment or Swap Collateral in
the form of securities charged pursuant to Clause 3.4 (Authorised
Investments and Swap Collateral), the Note Trustee shall, if so requested
by and at the sole cost and expense of the Current Issuer, but without
the Note Trustee being responsible for any loss, costs, claims or
liabilities whatsoever occasioned by so acting upon such request,
release, reassign or discharge from the Security Interests constituted by
or pursuant to this Current Issuer Deed of Charge the relevant Authorised
Investments or Swap Collateral, provided that in the case of a disposal
of an Authorised Investment, the proceeds of such disposal are paid by
the Current Issuer into the Current Issuer Bank Accounts from which the
monies to make such Authorised Investment were originally drawn and, that
in the case of Swap Collateral, the proceeds of such disposal are paid by
the Current Issuer into the relevant Swap Collateral Cash Account or
Current Issuer Bank Account (as
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appropriate in accordance with the Cash Management Agreement) subject to
and in accordance with the provisions of this Current Issuer Deed of
Charge and the Current Issuer Transaction Documents.
4.3 Withdrawals from Current Issuer Bank Accounts and Swap Collateral
Accounts: Subject to and in accordance with this Current Issuer Deed of
Charge and the other Current Issuer Transaction Documents, the Current
Issuer Cash Manager, on behalf of the Current Issuer and the Note
Trustee, is permitted pursuant to Clause 6 (Restrictions on Exercise of
Certain Rights) from time to time to withdraw amounts from the Current
Issuer Bank Accounts in order to apply such amounts in accordance with
the relevant Current Issuer Priority of Payments and from time to time to
withdraw amounts or securities from the Swap Collateral Accounts in order
to apply such amounts or securities in accordance with the Current Issuer
Cash Management Agreement. Any amount or securities so withdrawn shall be
released from the Security Interests (including the Jersey Security
Interests) created under this Current Issuer Deed of Charge provided that
any amount withdrawn from the Current Issuer Bank Accounts is applied in
accordance with and subject to the relevant Current Issuer Priority of
Payments.
5. Declaration of Trust
Each of the Current Issuer Secured Creditors declares the Note Trustee as
trustee of, and the Note Trustee hereby declares that it holds on trust
for the Current Issuer Secured Creditors, upon and subject to the terms
and conditions of this Current Issuer Deed of Charge, all of the
covenants, undertakings and representations made to the Note Trustee
under this Current Issuer Deed of Charge and any other Current Issuer
Transaction Document and all of the charges, assignments, security and
Security Interests made or given to the Note Trustee or to be made or
given to it for the purpose of securing the Current Issuer Secured
Obligations under or pursuant to this Current Issuer Deed of Charge or
any other Current Issuer Transaction Document.
6. Restrictions on Exercise of Certain Rights
6.1 Payments to Current Issuer Bank Accounts and Swap Collateral Accounts: At
all times prior to the release, re-assignment and/or discharge of the
Current Issuer Security pursuant to Clause 4 (Release of the Current
Issuer Charged Property), the Current Issuer shall save as otherwise
provided in the Current Issuer Transaction Documents or unless the Note
Trustee otherwise agrees in writing (and then only on such terms and in
such manner as the Note Trustee may require) procure that:
(a) the Current Issuer Bank Accounts shall from time to time be credited
with all amounts (excluding Swap Collateral Excluded Amounts)
received by the Current Issuer under or in respect of the Current
Issuer Transaction Documents, including without limitation the
following payments:
(i) amounts received by the Current Issuer from or on behalf of
Funding pursuant to the provisions of the Current Issuer
Intercompany Loan Agreement;
(ii) interest received on the Current Issuer Bank Accounts;
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(iii) amounts received by the Current Issuer from the Basis Rate
Swap Provider under the Current Issuer Basis Rate Swap
Agreement and any Swap Collateral Available Revenue Amounts
and Swap Collateral Available Principal Amounts;
(iv) amounts received by the Current Issuer from the Dollar
Currency Swap Provider under the Current Issuer Dollar
Currency Swap Agreements and any Swap Collateral Available
Revenue Amounts and Swap Collateral Available Principal
Amounts;
(v) amounts received by the Current Issuer from the Euro Currency
Swap Provider under the Current Issuer Euro Currency Swap
Agreements and any Swap Collateral Available Revenue Amounts
and Swap Collateral Available Principal Amounts;
(vi) income received by the Current Issuer in respect of the
proceeds of any Authorised Investments;
(vii) amounts received by the Current Issuer from the Security
Trustee or a Receiver following the service of an
Intercompany Loan Enforcement Notice;
(viii) such other payments received by the Current Issuer as are, or
ought in accordance with this Current Issuer Deed of Charge
to be, comprised in the Current Issuer Charged Property; and
(b) any Swap Collateral Accounts shall from time to time be credited
with any Swap Collateral Excluded Amounts received by the Current
Issuer pursuant to the relevant Current Issuer Swap Agreement.
6.2 No withdrawal from Current Issuer Bank Accounts and Swap Collateral
Accounts: At all times during the subsistence of the Current Issuer
Security, the Current Issuer shall not be entitled to withdraw or
transfer from any Current Issuer Bank Account or Swap Collateral Account
any monies or securities standing to the credit thereof or direct any
payment to be made therefrom to any person save to the extent expressly
permitted under this Current Issuer Deed of Charge without the Note
Trustee's prior written consent.
6.3 Permitted Withdrawals from Current Issuer Bank Accounts and Swap
Collateral Accounts; Authorised Investments:
(a) The Current Issuer covenants with the Note Trustee that the amounts
standing to the credit of the Current Issuer Bank Accounts and any
Swap Collateral standing to the credit of a Swap Collateral Account
may only be withdrawn in accordance with this Clause 6.3 or
otherwise with the Note Trustee's prior written consent.
(b) On any day during an Interest Period prior to the security becoming
enforceable pursuant to Clause 7.2 (Enforceable), the Current Issuer
and the Note Trustee hereby authorise the Current Issuer Cash
Manager to withdraw such monies from the Current Issuer Transaction
Accounts as are to be applied
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on such date to meet any amounts then due and payable by the Current
Issuer to third parties in accordance with item (C) of the Current
Issuer Pre-Enforcement Revenue Priority of Payments provided that
such monies are applied in making such payments on behalf of the
Current Issuer. For the purpose of this paragraph (b), the remaining
provisions of this Clause 6.3, Clause 6.4 (Current Issuer
Pre-Enforcement Revenue Priority of Payments) and Clause 6.5
(Current Issuer Pre-Enforcement Principal Priority of Payments), the
Current Issuer Cash Manager shall be entitled to assume that the
Current Issuer Security is not enforceable pursuant to Clause 7.2
(Enforceable) unless it has received notice from the Current Issuer
or the Note Trustee or is otherwise aware that the Current Issuer
Security has become so enforceable and shall not be liable to the
Note Trustee, the Current Issuer or any other Current Issuer Secured
Creditor for making payments based on this assumption.
(c) The Note Trustee hereby authorises the Current Issuer Cash Manager,
prior to the security becoming enforceable pursuant to Clause 7.2
(Enforceable), to make withdrawals from:
(i) the relevant Current Issuer Bank Account for the purposes of
acquiring Authorised Investments provided that all amounts
received in respect of the Authorised Investments (including
earnings thereon) shall be deposited into the relevant
Current Issuer Bank Account from which they were originally
drawn; and
(ii) the relevant Swap Collateral Account for the purpose of (1)
transferring or paying Swap Collateral to a Current Issuer
Swap Provider pursuant to the terms of the relevant Current
Issuer Swap Agreement; or (2) transferring Swap Collateral
Available Revenue Amounts and/or Swap Collateral Available
Principal Amounts to the relevant Current Issuer Transaction
Account.
6.4 Current Issuer Pre-Enforcement Revenue Priority of Payments: On each
Payment Date, prior to the Current Issuer Security becoming enforceable
pursuant to Clause 7.2 (Enforceable), the Note Trustee hereby authorises
the Current Issuer or the Current Issuer Cash Manager in its place to
withdraw Current Issuer Available Revenue Receipts standing to the credit
of the Current Issuer Transaction Accounts and to apply such monies in
accordance with the provisions and the order of priority of the Current
Issuer Pre-Enforcement Revenue Priority of Payments (as the same may be
amended or varied from time to time) as set out in Schedule 2 (Cash
Management and Maintenance of Ledgers) to the Current Issuer Cash
Management Agreement.
6.5 Current Issuer Pre-Enforcement Principal Priority of Payments: On each
Payment Date prior to the Current Issuer Security becoming enforceable
pursuant to Clause 7.2 (Enforceable), the Note Trustee hereby authorises
the Current Issuer or the Current Issuer Cash Manager in its place to
withdraw Current Issuer Available Principal Receipts standing to the
credit of the Current Issuer Transaction Accounts and to apply such
monies in accordance with the order of priority of the Current Issuer
Pre-Enforcement Principal Priority of Payments (as the same may be
amended or varied from time to time) as set out in Schedule 2 (Cash
Management and Maintenance of
12
Ledgers) to the Current Issuer Cash Management Agreement.
6.6 No Enforcement by Current Issuer Secured Creditors: Each of the Current
Issuer Secured Creditors (other than the Note Trustee acting on behalf of
the Noteholders and any Receiver) hereby agrees with the Current Issuer
and the Note Trustee that:
(a) only the Note Trustee may enforce the security created in favour of
the Note Trustee by this Current Issuer Deed of Charge in accordance
with the provisions hereof;
(b) notwithstanding any other provision of this Current Issuer Deed of
Charge or any other Current Issuer Transaction Document no sum due
or owing to any Current Issuer Secured Creditor or to the Note
Trustee (whether for itself or on behalf of the Current Issuer
Secured Creditors) from or by the Current Issuer under this Current
Issuer Deed of Charge or any other Current Issuer Transaction
Document shall be payable by the Current Issuer except to the extent
that the Current Issuer or (following enforcement of the Current
Issuer Security) the Note Trustee has sufficient funds available to
it (and, in the case of the Note Trustee, as a result of the
realisation of that security) to pay such sum subject to and in
accordance with the relevant Current Issuer Priority of Payments and
provided that all liabilities of the Current Issuer required to be
paid in priority thereto or pari passu therewith pursuant to such
Current Issuer Priority of Payments have been paid, discharged
and/or otherwise provided for in full PROVIDED THAT this paragraph
(b) shall not apply to and shall not limit the obligations of the
Current Issuer to the Noteholders under the Current Issuer Notes and
this Current Issuer Deed of Charge; and
(c) it shall not take any steps for the purpose of recovering any of the
Current Issuer Secured Obligations (including, without limitation,
by exercising any rights of set-off) or enforcing any rights arising
out of the Current Issuer Transaction Documents against the Current
Issuer and it shall not take any steps or legal proceedings for the
winding-up, dissolution or reorganisation of, or the institution of
insolvency proceedings against, the Current Issuer or for the
appointment of a receiver, administrator, liquidator or similar
officer of the Current Issuer in respect of any or all of its
revenues and assets,
PROVIDED THAT
(i) in the case of any Noteholder, this provision shall be
subject to Clause 7.2 (Only Note Trustee to Enforce) of the
Current Issuer Trust Deed; and
(ii) in the case of any other Current Issuer Secured Creditor and
subject to there being no Current Issuer Note then
outstanding, if the Note Trustee having become bound to do so
subject to and in accordance with the terms of this Current
Issuer Deed of Charge and the Current Issuer Transaction
Documents, fails to serve a Current Issuer Note Enforcement
Notice and/or, to take any steps or proceedings to enforce
the security created hereunder within 30 days of becoming so
bound and such failure is continuing, each such other Current
Issuer Secured Creditor shall be entitled to take such steps
and proceedings to enforce
13
its rights arising out of the relevant Current Issuer
Transaction Document as it shall deem necessary other than
the presentation of a petition for the winding up,
dissolution or reorganisation of, or the institution of
insolvency proceedings against, the Current Issuer or the
appointment of an administrator or liquidator of the Current
Issuer.
6.7 Acknowledgement of Note Trustee: The Note Trustee hereby acknowledges and
agrees that save with respect to the obligations of the Current Issuer to
the Noteholders under the Current Issuer Notes and this Current Issuer
Deed of Charge which are not limited under paragraph (b) of Clause 6.6
(No Enforcement by Current Issuer Secured Creditors) or under this Clause
6.7 (Acknowledgement of Note Trustee) and notwithstanding any other
provision of this Current Issuer Deed of Charge or any other Current
Issuer Transaction Document, no sum due or owing to any Current Issuer
Secured Creditor or to the Note Trustee (whether for itself or on behalf
of the Current Issuer Secured Creditors) from or by the Current Issuer
under this Current Issuer Deed of Charge or any other Current Issuer
Transaction Document shall be payable by the Current Issuer except to the
extent that the Current Issuer has sufficient funds available or
(following enforcement of the Current Issuer Security) the Note Trustee
has realised sufficient funds from the Current Issuer Security to pay
such sum subject to and in accordance with the relevant Current Issuer
Priority of Payments and provided that all liabilities of the Current
Issuer required to be paid in priority thereto or pari passu therewith
pursuant to such Current Issuer Priority of Payments have been paid,
discharged and/or otherwise provided for in full.
7. Enforcement
7.1 Notification: The Note Trustee shall, if practicable, give prior
notification to the Seller, Funding, the Cash Manager and the Current
Issuer Cash Manager of the Note Trustee's intention to enforce the
security created by this Current Issuer Deed of Charge. However, the
failure of the Note Trustee to provide such notification shall not in any
way prejudice the ability of the Note Trustee to enforce the security
created by this Current Issuer Deed of Charge.
7.2 Enforceable:
(a) Without prejudice to the provisions of Clause 9 (Receiver) the
security created under this Current Issuer Deed of Charge shall
become immediately enforceable and the power of sale and other
powers conferred by Section 101 of the 1925 Act, as varied or
amended by this Current Issuer Deed of Charge, shall be exercisable
by the Note Trustee:
(i) at any time when any Current Issuer Note remains outstanding,
in accordance with and subject to, Clause 6 (Enforcement) and
Clause 7 (Proceedings, Action and Indemnification) of the
Current Issuer Trust Deed which shall, as necessary, be
incorporated in and apply, mutatis mutandis, to this Current
Issuer Deed of Charge (and for that purpose references
therein to "this Trust Deed" or "these presents" shall be
construed as references to this Current Issuer Deed of
Charge); or
(ii) if there are no Current Issuer Notes outstanding, following a
default in payment of any other Current Issuer Secured
Obligations on its due
14
date or within any applicable grace period following such due
date stated in the relevant Current Issuer Transaction
Document but subject always to any limited recourse
provisions stated therein and to Clause 6.6 (No Enforcement
by Current Issuer Secured Creditors) hereof; or
(iii) upon the service on Funding by the Security Trustee of an
Intercompany Loan Enforcement Notice.
(b) For the purposes of the Jersey Security Interests, upon the
occurrence of any of the events specified in Clause 7.2 (a) (i),
(ii) or (iii) (which shall constitute events of default for the
purposes of the Jersey Security Interests in accordance with the
Jersey Security Law) the Note Trustee shall have the right to give
notice (the "Current Issuer Jersey Enforcement Notice") to the
Current Issuer in accordance with the Jersey Security Law and the
power of sale of the Current Issuer Jersey Secured Property shall
become exercisable without the order of the Jersey court in
accordance with the Jersey Security Law so that the Jersey Security
Interests shall be enforceable in accordance with the provisions of
the Jersey Security Law.
7.3 Power of Sale:
(a) Notwithstanding any other provision of this Current Issuer Deed of
Charge, the Current Issuer Secured Obligations shall be deemed to
have become due and payable for the purposes of Section 101 of the
1925 Act and Article 8 of the Jersey Security Law and (to the extent
applicable) the statutory power of sale and of appointing a receiver
and other powers which are conferred on mortgagees under the 1925
Act as varied or extended by this Current Issuer Deed of Charge
shall be deemed to arise immediately after execution of this Current
Issuer Deed of Charge.
(b) Section 103 of the 1925 Act shall not apply to this Current Issuer
Deed of Charge and forthwith after the security has become
enforceable in accordance with Clause 7.2 (Enforceable) the
statutory power of sale, as extended by this Current Issuer Deed of
Charge, and all other powers shall become immediately exercisable
without notice to the Current Issuer and the provisions of the 1925
Act regulating the power of sale shall, so far as they relate to the
Current Issuer Charged Property, be varied and extended accordingly.
7.4 Law of Property Xxx 0000: Subject, in the case of the Current Issuer
Jersey Secured Property, to the provisions of the Jersey Security Law,
the provisions of the 1925 Act relating to the power of sale and the
other powers conferred by Section 101(1) and (2) are hereby extended in
relation to the Current Issuer as if such extensions were contained in
the 1925 Act such that at any time after the security constituted by this
Current Issuer Deed of Charge has become enforceable in accordance with
Clause 7.2 (Enforceable) above, the Note Trustee may in its absolute
discretion:
(a) make demand in the name of the Current Issuer Secured Creditors or
in its own right for any monies and liabilities in respect of the
Current Issuer Charged Property;
15
(b) enforce any rights it may have in respect of the whole or any part
of the Current Issuer Charged Property in such manner and upon such
terms as the Note Trustee shall think fit;
(c) take possession of, get in and collect the Current Issuer Charged
Property and perfect interests comprised therein;
(d) (subject to any restrictions under or in respect of the relevant
Current Issuer Charged Property) sell, transfer, convey, dispose of,
vary or otherwise deal with, and also grant any option to purchase,
and effect exchanges of, the whole or any part of Current Issuer
Charged Property or any interest therein in such manner, for such
consideration (if any) and generally upon such terms (including by
deferred payment or payment by instalments) as it may think fit
and/or to concur in any of the foregoing (and nothing shall preclude
any such disposal being made to a Current Issuer Secured Creditor);
(e) carry out any transaction, scheme or arrangement which the Note
Trustee may, in its absolute discretion, consider appropriate with a
view to or in connection with the sale of the Current Issuer Charged
Property;
(f) do all or any of the things or exercise all or any of the powers,
authorities and discretions conferred expressly or by implication on
any Receiver under Clause 9.6 (Powers of the Receiver) or otherwise
under this Current Issuer Deed of Charge; and/or
(g) exercise all or any of the powers conferred on mortgagees by the
1925 Act as varied or extended by this Current Issuer Deed of Charge
and any other rights and remedies that may be conferred by statute
or common law or in equity on mortgagees or receivers.
8. Upon Enforcement
8.1 Service of a Current Issuer Note Enforcement Notice: Without prejudice to
the effectiveness of any service of a Current Issuer Note Enforcement
Notice, the Note Trustee shall as soon as is practicable notify each of
the following parties of the enforcement of the Current Issuer Security
(whether by service of a copy of any Current Issuer Note Enforcement
Notice or otherwise):
(a) the Seller;
(b) Funding;
(c) the Account Bank, the Cash Manager and the Current Issuer Cash
Manager;
(d) the Paying Agents and the other Agents under the Current Issuer
Paying Agent and Agent Bank Agreement;
(e) the Current Issuer Swap Providers;
(f) the Corporate Services Provider; and
16
(g) each other Current Issuer Secured Creditor.
8.2 Crystallisation: From and including the date when the Note Trustee serves
a Current Issuer Note Enforcement Notice (which has not been withdrawn)
on the Current Issuer:
(a) notwithstanding any provision hereof or of any other Current Issuer
Transaction Document no amount may be withdrawn from the Current
Issuer Bank Accounts except with the prior written consent of the
Note Trustee; and
(b) if not already crystallised, any charge created by this Current
Issuer Deed of Charge which is a floating charge shall crystallise,
provided that the floating charge created by this Current Issuer
Deed of Charge shall not be crystallised solely as a result of
obtaining a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency Xxx 0000 except with leave of the
court.
8.3 Current Issuer Post-Enforcement Priority of Payments: At any time after
the security created by this Current Issuer Deed of Charge has become
enforceable in accordance with Clause 7.2 (Enforceable) and provided that
the relevant Current Issuer Note Event of Default has not been waived in
accordance with the provisions of this Current Issuer Deed of Charge,
Current Issuer Available Revenue Receipts, Current Issuer Available
Principal Receipts and all other monies (excluding Swap Collateral
Excluded Amounts) paid to or received or recovered by or on behalf of the
Current Issuer or the Note Trustee or any Receiver appointed on its
behalf, including all proceeds following any sale, realisation or
enforcement of the security created under this Current Issuer Deed of
Charge and all amounts (excluding Swap Collateral Excluded Amounts) not
previously distributed and/or standing to the credit of any Current
Issuer Bank Account and Swap Collateral Account shall (if not already
received by the Note Trustee) be paid to and held by the Note Trustee on
trust to apply the same (save to the extent otherwise required by
applicable law) in accordance with the order of priority of the Current
Issuer Post-Enforcement Priority of Payments (as the same may be amended
or varied from time to time) as set out on the date hereof in Schedule 2
(Current Issuer Post-Enforcement Priority of Payments) to this Current
Issuer Deed of Charge.
8.4 Certification of Amounts:
(a) The Note Trustee shall be entitled to rely on (and to accept as
conclusive evidence save in the case of manifest error) a
certificate from each Current Issuer Secured Creditor as to the
amounts owed to such Current Issuer Secured Creditor under the
Current Issuer Transaction Documents. The Note Trustee shall not
take into account for the purpose of the application of moneys in
accordance with the Current Issuer Post-Enforcement Priority of
Payments any amounts of which it has not been notified by the
intended recipient on or prior to the date in question.
(b) Each Current Issuer Secured Creditor will, at all times, promptly
provide the Note Trustee and/or any Receiver on request with a
certificate setting out detailed information as to the amount of the
Current Issuer Secured Obligations to which such Current Issuer
Secured Creditor is entitled and such
17
other information as the Note Trustee and/or any Receiver may
require to enable or facilitate the Note Trustee and/or any Receiver
to perform its functions hereunder or under any of the Current
Issuer Transaction Documents, such certificate to be in a form
required by the Note Trustee and/or any Receiver. In determining the
respective entitlements of the Current Issuer Secured Creditors
hereunder, such certificates shall be binding on all of the Current
Issuer Secured Creditors.
8.5 Retention Account: If the Note Trustee enforces the security created
under this Current Issuer Deed of Charge at a time when either no amounts
or not all amounts owing in respect of the Current Issuer Secured
Obligations have become due and payable or any of the Current Issuer
Secured Obligations are at such time contingent or future, the Note
Trustee or a Receiver may, for so long as no such amounts or not all such
amounts have become due and payable or any of the Current Issuer Secured
Obligations are at such time contingent or future, pay any monies
referred to in Clause 8.3 (Current Issuer Post-Enforcement Priority of
Payments), 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 8.3 (Current Issuer
Post-Enforcement Priority of Payments) as and when any of the amounts
referred to therein become due and payable.
8.6 Note Trustee Rights upon Enforcement: In addition to any other rights
expressly provided herein, for the period commencing upon the service of
a Current Issuer Note Enforcement Notice and terminating upon the
notification to the Current Issuer Secured Creditors by the Note Trustee
that all Current Issuer Secured Obligations have been satisfied in full:
(a) (provided such Current Issuer Secured Creditor has received a copy
of, or other notice of the service on the Current Issuer of, any
such Current Issuer Note Enforcement Notice) each Current Issuer
Secured Creditor agrees that it will pay to the Note Trustee or the
Receiver, as the case may be, all monies received or recovered by
such Current Issuer Secured Creditor (whether by way of set-off or
otherwise) in order that such amounts may be applied by the Note
Trustee in accordance with Clause 8.3 (Current Issuer
Post-Enforcement Priority of Payments);
(b) save as otherwise expressly provided in this Current Issuer Deed of
Charge or as required by the Note Trustee, all payments under or
arising from this Current Issuer Deed of Charge and all amounts
payable to the Current Issuer by any party to this Current Issuer
Deed of Charge under any Current Issuer Transaction Document shall
be paid to the Note Trustee or to its order;
(c) save as otherwise expressly provided in this Current Issuer Deed of
Charge, all rights or remedies provided for by this Current Issuer
Deed of Charge or available at law or in equity to the Current
Issuer Secured Creditors are exercisable by the Note Trustee;
(d) save as otherwise expressly provided in this Current Issuer Deed of
Charge, all rights to compel performance of the Current Issuer
Transaction Documents are exercisable by the Note Trustee; and
18
(e) all payments in respect of the Current Issuer Secured Obligations
shall operate in satisfaction pro tanto of the Current Issuer's
covenants to the relevant Current Issuer Secured Creditors.
9. Receiver
9.1 Appointment: At any time after the security constituted hereunder becomes
enforceable, and whether or not the Note Trustee has taken possession of
the Current Issuer Charged Property, the Note Trustee may appoint, by
writing or by deed, such person or persons (including an officer or
officers of the Note Trustee) as the Note Trustee thinks fit to be a
receiver, a receiver and manager or an administrative receiver of the
Current Issuer Charged Property or any part thereof (each a "Receiver")
and, in the case of an appointment of more than one person, to act
together or independently of the other or others.
9.2 Removal and Replacement: Except as otherwise required by statute, the
Note Trustee may by writing or by deed remove a Receiver and appoint
another in its place or to act with a Receiver and the Note Trustee may
apply to the court for an order removing an administrative receiver.
9.3 Extension of Appointment: The exclusion of any part of the Current Issuer
Charged Property from the appointment of the Receiver shall not preclude
the Note Trustee from subsequently extending its appointment (or that of
the Receiver replacing it) to that part of the Current Issuer Charged
Property or appointing another Receiver over any other part of the
Current Issuer Charged Property.
9.4 Agent of Current Issuer: The Receiver shall, so far as the law permits,
be the agent of the Current Issuer and the Current Issuer 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 Note Trustee or any Current
Issuer Secured Creditor be in any way responsible for or incur any
liability in connection with its contracts, engagements, acts, omissions,
misconduct, negligence or default, and if a liquidator of the Current
Issuer shall be appointed, the Receiver shall act as principal and not as
agent for the Note Trustee. Notwithstanding the generality of the
foregoing, such Receiver shall in the exercise of its powers, authorities
and discretions conform to the regulations or directions (if any) from
time to time made and given by the Note Trustee.
9.5 Remuneration: Subject as provided otherwise by applicable law, the
remuneration of the Receiver shall be fixed by the Note Trustee and may
be or include a commission calculated by reference to the gross amount of
all monies received or otherwise. Such remuneration and such commission
(if any) shall be payable hereunder by the Current Issuer alone subject
always to Clause 8.3 (Current Issuer Post-Enforcement Priority of
Payments) and the amount of such remuneration shall form part of the
Current Issuer Secured Obligations and shall accordingly be secured on
the Current Issuer Charged Property under the security created by this
Current Issuer Deed of Charge.
9.6 Powers of the Receiver: Subject, in the case of the Current Issuer Jersey
Secured Property, to the provisions of the Jersey Security Law, the
Receiver of the Current Issuer, in addition to any powers conferred on an
administrative receiver, receiver, manager or receiver and manager by
statute or common law, shall have the power to:
19
(a) take possession of, get in and collect the Current Issuer Charged
Property;
(b) (subject to any restrictions under or in respect of relevant Current
Issuer Charged Property) sell, transfer, convey, license, release or
otherwise dispose of vary or deal with, and also grant any option to
purchase, and effect exchanges of, the whole or any part of the
Current Issuer Charged Property or any interest therein and grant or
accept surrenders, disclaimers and variations in relation to or
otherwise affecting the Current Issuer Charged Property in each case
in such manner, for such consideration (if any) and generally upon
such terms (including by deferred payment of payment by instalments)
as it may think fit and/or concur in any of the foregoing (and
nothing shall preclude any such disposal being made to a Current
Issuer Secured Creditor);
(c) carry out any transaction, scheme or arrangement which it may, in
its absolute discretion, consider appropriate with a view to or in
connection with the sale of the Current Issuer Charged Property;
(d) insure the Current Issuer Charged Property against such risks and
for such amounts as it may consider prudent and obtain bonds and
performance guarantees;
(e) otherwise protect, maintain or improve, the Current Issuer Charged
Property or any part thereof in any manner and for any purpose
whatsoever as it shall think fit;
(f) transfer all or any of the Current Issuer Charged Property and/or
any of the liabilities to any other company or body corporate,
whether or not formed or acquired for the purpose (and whether or
not a subsidiary or associated company of the Note Trustee or any
other party to the Current Issuer Transaction Documents) and to form
a subsidiary or subsidiaries of the Current Issuer;
(g) carry on and manage or concur in managing or appoint a manager of,
the whole or any part of the business of the Current Issuer in such
manner as it shall in its absolute discretion think fit including
the power to enter into any contract and to perform, repudiate,
rescind or vary any contract to which the Current Issuer is a party;
(h) sell or concur in selling the whole or any part of the Current
Issuer's business whether as a going concern or otherwise;
(i) appoint, dismiss, engage or vary the terms of employment of any
employees, managers, agents or advisers of the Current Issuer upon
such terms as to remuneration and otherwise for such periods as it
may in its absolute discretion think fit;
(j) in connection with the exercise or proposed exercise of any of its
powers or in order to obtain payment of its remuneration or
reimbursement of its expenses (in each case, whether or not already
due), borrow or raise money from any person, without security or on
the security of the Current Issuer Charged Property (either in
priority to the security constituted by this Current Issuer
20
Deed of Charge or otherwise) and generally in such manner and on
such terms as it may think fit;
(k) bring, defend, submit to arbitration, negotiate, compromise,
enforce, abandon and settle actions, suits, claims and proceedings
concerning or affecting the Current Issuer Charged Property or the
security created under this Current Issuer Deed of Charge;
(l) exercise any powers, discretions, voting, conversion or other rights
or entitlements in relation to any of the Current Issuer Charged
Property or incidental to the ownership of or rights in or to any of
the Current Issuer Charged Property and to complete or effect any
transaction entered into by the Current Issuer or disclaim, abandon
or modify all or any of the outstanding contracts or arrangements of
the Current Issuer relating to or affecting the Current Issuer
Charged Property;
(m) generally carry out, or cause to be carried out any transaction or
scheme or arrangement whatsoever, whether similar or not to any of
the foregoing, in relation to the Current Issuer Charged Property
which it may consider expedient as effectual as if it were solely
and absolutely entitled to the Current Issuer Charged Property;
(n) in connection with the exercise of any of its powers, execute or do,
or cause or authorise to be executed or done, on behalf of or in the
name of the Current Issuer or otherwise, as it may think fit, all
documents, acts or things which it may consider appropriate;
(o) redeem, discharge or compromise any security whether or not having
priority to the security created hereunder;
(p) enter into covenants, guarantees, commitments, indemnities and other
obligations or liabilities as it shall think fit;
(q) pay and discharge out of the profits and income of the Current
Issuer Charged Property and the monies to be made by it carrying on
any such business as aforesaid the expenses in and about the
carrying on and management of such business or in the exercise of
any of the powers conferred by Clause 9 (Receivers) or otherwise in
respect of the Current Issuer 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
(Current Issuer Post-Enforcement Priority of Payments); and
(r) exercise any other powers, rights and/or remedies that may be
available at law or in equity including the powers referred to in
Section 1 of the Insolvency Xxx 0000.
9.7 Security: The Note Trustee may from time to time and at any time require
any such Receiver to give security for the due performance of its duties
and may fix the nature and amount of the security to be so given but the
Note Trustee shall not be bound in any such case to require any such
security.
21
9.8 Application by Receiver: Save so far as otherwise directed by the Note
Trustee, all monies from time to time received by such Receiver shall be
paid over to the Note Trustee to be held by it on the trusts declared
under this Current Issuer Deed of Charge and to be distributed in
accordance with Clause 8.3 (Current Issuer Post-Enforcement Priority of
Payments).
9.9 Payment to Receiver: The Note Trustee may pay over to such Receiver any
monies constituting part of the Current Issuer Charged Property for the
same to be applied for the purposes of this Current Issuer Deed of Charge
by such Receiver and the Note 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.
9.10 No Restrictions: None of the restrictions imposed by the 1925 Act in
relation to the appointment of receivers or the giving of notice or
otherwise shall apply in relation to the Receiver.
9.11 Administration:
(a) Upon presentation of an application or a petition to a court of
competent jurisdiction for an administration order or a notice of
intention to appoint an administrator or the filing of documents
with the court for the appointment of an administrator in relation
to the Current Issuer or other order having substantially the same
effect to be made on application by a creditor or creditors of the
Current Issuer, the Note Trustee shall, subject to it being
indemnified to its satisfaction, as soon as practicable appoint a
Receiver in accordance with this Current Issuer Deed of Charge (who
shall, to the extent permitted by law, be an "administrative
receiver" under Section 29 (2) of the Insolvency Act 1986) of the
whole of the Current Issuer Charged Property and, in the case of any
application to the court or petition the Note Trustee shall instruct
the Receiver to attend at the hearing of the application or petition
and take such steps as are necessary to prevent the appointment of
an administrator. The Current Issuer Secured Creditors shall
co-operate and do all acts and enter into such further documents,
deeds or agreements as the Note Trustee may deem necessary or
desirable to ensure that an administration order is not made and
that an administrative receiver is appointed.
(b) Paragraph 14 of Schedule B1 to the Insolvency Xxx 0000 applies to
the floating charge created hereunder.
10. Further Assurance and Power of Attorney
10.1 Further Assurance: The Current Issuer covenants with and undertakes to
the Note Trustee from time to time (notwithstanding that the security may
not have become enforceable and the Note Trustee may not have served any
Current Issuer Note Enforcement Notice) upon demand:
(a) to execute, at the Current Issuer's cost, any document or do any act
or thing which the Note Trustee or any Receiver may specify
(including executing such Security Interests over its rights in and
over the Current Issuer Charged Property and any other assets of the
Current Issuer in such form as the Note Trustee and/or any Receiver
may require) with a view to:
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(i) registering, perfecting, protecting or improving any charge
or security or Security Interest (including any Jersey
Security Interest) created or intended to be created by or
pursuant to this Current Issuer Deed of Charge (including any
act or document which may be required or desirable under the
laws of any jurisdiction in which any property or assets may
be located in order to confer on the Note Trustee security
over such property and assets equivalent or similar to the
security intended to be conferred by or pursuant to this
Current Issuer Deed of Charge) and in such form as the Note
Trustee or the Receiver may specify; and/or
(ii) facilitating the realisation of or enforcement of rights of,
all or any part of the Current Issuer Charged Property
(including any Current Issuer Jersey Secured Property) or the
exercise, or proposed exercise, of any of the powers, duties
or discretions vested or intended to be vested in the Note
Trustee or such Receiver by or pursuant to this Current
Issuer Deed of Charge or doing any act or thing deemed
necessary by the Note Trustee or the Receiver;
(b) to give or join in giving or procure the giving of any notices to
any persons and obtain or procure that there is obtained any
necessary acknowledgements in relation to such notices, all in such
form, as the Note Trustee or the Receiver may require at the cost of
the Current Issuer,
and for the purpose of this Clause 10.1 (Further Assurance) a certificate
in writing signed by the Note Trustee to the effect that any particular
assurance or thing is required by it shall be conclusive evidence of that
fact provided that the Current Issuer shall not be obliged to execute any
such documentation or take any other action or steps to the extent that
it would breach a restriction in any agreement to which it is a party or
conflict with any applicable law.
10.2 Execution of Power of Attorney: Immediately upon execution of this
Current Issuer Deed of Charge, the Current Issuer shall execute and
deliver to the Note Trustee the power of attorney in or substantially in
the form set out in Schedule 1 (Form of Security Power of Attorney).
10.3 Current Issuer Charged Property on Trust: To the extent permitted to do
so under the Current Issuer Transaction Documents, for the purpose of
giving effect to this Current Issuer Deed of Charge, the Current Issuer
hereby declares that, after service of a Current Issuer Note Enforcement
Notice, it will hold all the Current Issuer Charged Property (subject to
the right of redemption) upon trust to convey, assign or otherwise deal
with such Current Issuer Charged Property in such manner and to such
person as the Note Trustee shall direct pursuant to this Current Issuer
Deed of Charge, and declares that it shall be lawful for the Note Trustee
to appoint a new trustee or trustees of the Current Issuer Charged
Property in place of the Current Issuer.
11. Crystallisation
11.1 Notice: In addition and without prejudice to any other event resulting in
a crystallisation of the floating charges created by this Current Issuer
Deed of Charge or any other right the Note Trustee may have, the Note
Trustee may, by notice in writing
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to the Current Issuer, declare that the floating charges hereby created
shall be converted into first specific fixed charges over such of the
undertaking, property and assets of the Current Issuer as the Note
Trustee may specify in such notice at any time if:
(a) a Current Issuer Note Event of Default or a Current Issuer Potential
Note Event of Default has occurred; or
(b) the Note Trustee believes that the Current Issuer 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) the Note Trustee considers that it is desirable in order to protect
the priority of the security created by this Current Issuer Deed of
Charge.
provided that the floating charges created by this Current Issuer Deed of
Charge may not be converted into a fixed charge solely as a result of the
obtaining of a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency Xxx 0000 without the leave of the court.
11.2 Automatic Crystallisation: In addition and without prejudice to any other
event resulting in a crystallisation of the floating charge contained
herein and without prejudice to any rule of law which may have a similar
effect, the floating charge created under this Current Issuer Deed of
Charge shall automatically and without notice be converted with immediate
effect into a fixed charge as regards:
(a) all property, assets or undertaking of the Current Issuer subject to
the floating charge, upon:
(i) the presentation of a petition for the compulsory winding-up
of the Current Issuer;
(ii) the convening of a meeting for the passing of a resolution
for the voluntary winding-up of the Current Issuer;
(iii) the presentation of a petition for the making of an
administration order in relation to the Current Issuer;
(iv) the presentation or making of an application for a warrant of
execution, writ of fieri facias, garnishee order or charging
order in respect of any of the assets of the Current Issuer
subject to the floating charge;
(v) the occurrence of a Current Issuer Note Event of Default;
and/or
(b) any property, assets or undertaking of the Current Issuer, which
become subject to an Encumbrance in favour of any person other than
the Note 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 Current Issuer Transaction Documents,
immediately prior to such Encumbrance arising or such sale, transfer
or other disposition being made,
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provided that the floating charges created by this Current Issuer Deed of
Charge may not be converted into a fixed charge solely as a result of the
obtaining of a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency Xxx 0000 without the leave of the court.
12. Provisions relating to the Security
12.1 Continuing Security: The security created under or pursuant to this
Current Issuer Deed of Charge shall be:
(a) in addition to and independent of and shall not operate so as to
prejudice or affect or merge in any other security, right of
recourse or other right whatsoever which may be held by any of the
Current Issuer Secured Creditors or the Note Trustee on their behalf
in respect of the whole or any part of the Current Issuer Secured
Obligations and shall not be affected by any release, reassignment
or discharge of such other security; and
(b) a continuing security for the Current Issuer Secured Obligations and
shall remain in force as continuing security for the Current Issuer
Secured Creditors and shall not be considered as satisfied or
discharged by any intermediate payment or settlement of the whole or
any part of the Current Issuer Secured Obligations or the existence
at any time of a credit balance on any current or other account or
any other matter or thing whatsoever.
12.2 Consolidation: Section 93 of the 1925 Act shall not apply in relation to
any of the charges contained in this Current Issuer Deed of Charge.
12.3 Ruling Off: If the Note Trustee receives notice of any Encumbrance
affecting the whole or any part of the Current Issuer Charged Property or
any security granted hereunder in contravention of the provisions hereof:
(a) the Note Trustee may open a new account in the name of the Current
Issuer 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 the Current Issuer to the Note Trustee after
the Note 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 Current Issuer Secured
Obligations as at the time the Note Trustee received such notice.
12.4 Avoidance of Payments: Any settlement, discharge or release between (a)
the Current Issuer and (b) the Note Trustee or any Receiver (the
"Relevant Person(s)") shall be conditional upon no security or payment
granted or made to the Relevant Person(s) by the Current Issuer or any
other person being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency or liquidation for the time
being in force and, in the event of such security or payment being so
avoided or reduced, the Relevant Person(s) shall be entitled to recover
the value or amount of such security or payment from the Current Issuer
and from the security subsequently as if such settlement, discharge or
release had not occurred.
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12.5 Retention of Charges: If the Note Trustee shall have reasonable grounds
for believing that the Current Issuer 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 the
Current Issuer shall be prima facie evidence of the solvency of the
Current Issuer) as at the date of any payment made by the Current Issuer
to the Note Trustee and that as a result, such payment may be capable of
being avoided or clawed back, the Note Trustee shall be at liberty to
retain the charges contained in or created pursuant to this Current
Issuer Deed of Charge until the expiry of a period of one month plus such
statutory period within which any assurance, security, guarantee or
payment can be avoided or invalidated after the payment and discharge in
full of all Current Issuer Secured Obligations notwithstanding any
release, settlement, discharge or arrangement which may be given or made
by the Note 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 the Current
Issuer, or if the Current Issuer shall commence to be wound up or to go
into administration or any analogous proceedings shall be commenced by or
against the Current Issuer, as the case may be, the Note Trustee shall be
at liberty to continue to retain such security for such further period as
the Note Trustee may determine and such security shall be deemed to
continue to have been held as security for the payment and discharge to
the Note Trustee of all Current Issuer Secured Obligations.
12.6 Possession: Entry into possession of the Current Issuer Charged Property
or any part thereof shall not render the Note Trustee or any Receiver of
the Current Issuer liable to account as mortgagee in possession for
anything except actual receipts. If and whenever the Note Trustee or the
Receiver enters into possession of the Current Issuer Charged Property,
it shall be entitled at any time to go out of such possession.
12.7 Change of Name, etc.: This Deed shall remain valid and enforceable
notwithstanding any change in the name, composition or constitution of
the Note Trustee or the Current Issuer or any amalgamation, merger or
consolidation by the Note Trustee or the Current Issuer, with any other
corporation (whether, in the case of the Current Issuer, permitted under
the Current Issuer Transaction Documents or not).
13. Protection of Third Parties
13.1 No Enquiry: No purchaser from, or other person dealing with, the Note
Trustee or a Receiver shall be concerned to enquire whether any of the
powers exercised or purported to be exercised under this Current Issuer
Deed of Charge has arisen or become exercisable, whether the Current
Issuer Secured Obligations remain outstanding or have become payable,
whether the Note Trustee or the Receiver is authorised to act or as to
the propriety or validity of the exercise or purported exercise of any
power; and the title and the position of such a purchaser or other person
shall not be impeachable by reference to any of those matters and all the
protection to purchasers contained in Sections 104 and 107 of the 1925
Act shall apply to any person purchasing from or dealing with the Note
Trustee or any such Receiver.
13.2 Receipts to Current Parties: Upon any sale, calling in, collection,
enforcement or other realisation of the Current Issuer Charged Property
in accordance with the terms hereof and upon any other dealing or
transaction under or pursuant to this Current
26
Issuer Deed of Charge, the receipt of the Note Trustee or any Receiver
shall be an absolute and a conclusive discharge to a purchaser or other
person dealing with the Note Trustee or such Receiver and shall relieve
it of any obligation to see to the application of any monies paid to or
by the direction of the Note Trustee or such Receiver.
14. Set-Off
The Note Trustee may at any time after the security created under this
Current Issuer Deed of Charge has become enforceable in accordance with
Clause 7.2 (Enforceable) without notice and notwithstanding any
settlement of account or other matter whatsoever combine or consolidate
all or any existing accounts of the Current Issuer whether in its own
name or jointly with others and held by it or any Current Issuer 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 the Current Issuer from the Note Trustee or
relevant Current Issuer Secured Creditor and whether or not the credit
balance and the account in debit or the Current Issuer Secured
Obligations are expressed in the same currency in which case the Note
Trustee is hereby authorised to effect any necessary conversions at its
prevailing rates of exchange) in or towards satisfaction of any of the
Current Issuer Secured Obligations (and on or at any time after the
security created under this Current Issuer Deed of Charge has become
enforceable in accordance with Clause 7.2 (Enforceable) the Security
Trustee may make such application notwithstanding any specified maturity
of any deposits), but subject always to the Current Issuer Priority of
Payments, and may in its absolute discretion estimate the amount of any
liability of the Current Issuer which is contingent or unascertained and
thereafter set-off such estimated amount and no amount shall be payable
by the Note Trustee to the Current Issuer unless and until all the
Current Issuer Secured Obligations have been ascertained and fully repaid
or discharged.
15. Representations and Covenants
15.1 Representations and Warranties:
(a) The Current Issuer hereby represents to the Note Trustee that it is,
as of the date hereof, the beneficial owner of all of the Current
Issuer Charged Property free and clear of all liens, claims, charges
or Encumbrances except those specifically created by this Current
Issuer Deed of Charge and undertakes that it will retain all rights
associated with ownership of the Current Issuer Charged Property
free and clear of all liens, claims, charges, Encumbrances except
those specifically created by this Current Issuer Deed of Charge or
any other Current Issuer Transaction Document.
(b) The Current Issuer represents that it has taken all necessary steps
to enable it to create the Security Interests in respect of the
Current Issuer Charged Property in accordance with this Current
Issuer Deed of Charge and has taken no action or steps which will or
may prejudice its right, title and interest in, to and under the
Current Issuer Charged Property.
15.2 Negative Covenants: The Current Issuer hereby undertakes that, for so
long as any Current Issuer Secured Obligation remains outstanding, the
Current Issuer shall not,
27
save to the extent contemplated or provided in the Current Issuer
Transaction Documents or unless it has obtained the prior written consent
of the Note Trustee:
(a) open or maintain any bank account or deposit account with any bank
or any other financial institution other than the Current Issuer
Bank Accounts or close the Current Issuer Bank Accounts;
(b) either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily,
sell, transfer, lease or otherwise dispose of or grant any option
over all or any part of its property, assets or undertaking or any
interest, estate, right, title or benefit therein or agree or
purport to do any of the foregoing;
(c) create or permit to subsist any Security Interest (unless arising by
operation of law) over or in respect of any of its property, assets
(including any uncalled capital) or undertaking, present or future;
(d) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness of or
of any obligation or any person;
(e) pay any dividend or make any other distribution to its shareholder
or issue any further shares;
(f) consolidate or merge with any other person or convey or transfer its
properties or assets substantially as an entirety to any other
person;
(g) consent to any amendment to, or variation of or agree to waive or
authorise any breach of any provision of any of the Current Issuer
Transaction Documents or permit any person whose obligations form
part of the Current Issuer Charged Property to be released from its
respective obligations;
(h) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X of
the Income and Corporation Taxes Act 1988 except for full payment at
the current applicable rate of corporation tax applied to the
surrendered amount and payable at the date when corporation tax is
due to be paid by the claimant or would be due in the absence of the
surrender;
(i) do any act or thing the effect of which would be to make the Current
Issuer resident in any jurisdiction other than the United Kingdom;
(j) permit any person other than the Current Issuer and the Note Trustee
to have any equitable interest in any of its property, assets or
undertakings or any interest, estate, right, title or benefit
therein;
(k) purchase or otherwise acquire any Note or Notes (including the
Current Issuer Notes); or
(l) engage in any activities in the United States (directly or through
agents), nor 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
28
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.
15.3 Positive covenants: The Current Issuer covenants and undertakes with the
Note Trustee for the benefit of the Current Issuer Secured Creditors that
it shall:
(a) Registration of Security: 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 Current Issuer Deed of Charge and the
required fee within 21 days after the date of this Current Issuer
Deed of Charge;
(b) Notice of Assignment: on the date hereof join with the Note Trustee
in giving notice of the assignments and the security created under
or pursuant to this Current Issuer Deed of Charge to Funding, the
Security Trustee and each other party to any Current Issuer
Transaction Document not being a party to this Current Issuer Deed
of Charge and for the purposes of the Jersey Security Interests to
any person from whom the Current Issuer would have been entitled to
claim the collateral (but for the Jersey Security Interests) and on
any date hereafter (to the extent only that such notice and
acknowledgement is not given under or pursuant to this Current
Issuer Deed of Charge) join with the Note Trustee in giving notice
of the assignments and the security created under this Current
Issuer Deed of Charge to any party to a Current Issuer
Transaction Document entered into by the Current Issuer after the
date hereof and, for the purposes of the Jersey Security Interests,
to any person from whom the Current Issuer would have been entitled
to claim the collateral (but for the Jersey Security Interests), in
each case in the form (or substantially in the form) set out in
Schedule 3 (Form of Notice of Assignment);
(c) Accounts for Stock Exchange: cause to be prepared and certified by
the Auditors of the Current Issuer in respect of each Financial
Year, accounts in such form as will comply with relevant legal and
accounting requirements for the time being and all requirements for
the time being of any stock exchange on which the Current Issuer
Notes are listed;
(d) Books and Records: at all times keep or procure the keeping of such
books of account and records as may be necessary to comply with all
applicable laws and so as to enable accounts of the Current Issuer
to be prepared and allow the Note Trustee and any person or persons
appointed by the Note Trustee free access to such books of account
and records at all reasonable 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
Current Issuer Deed of Charge and any information so obtained shall
only be used and passed on to any other person for the purpose of
the Note Trustee carrying out its duties under this Current Issuer
Deed of Charge;
(e) Notice of Current Issuer Note Event of Default: give notice in
writing to the Note Trustee forthwith upon becoming aware of the
occurrence of any Current Issuer Note Event of Default or Current
Issuer Potential Note Event of Default including the status of any
such default or matter and what action the Current
29
Issuer is taking or proposes to take with respect thereto, without
waiting for the Note Trustee to take any action;
(f) Certificates Relating to Financial Information: give to the Note
Trustee (a) within seven days after demand by the Note Trustee
therefor and (b) (without the necessity for any such demand)
promptly after the publication of its audited accounts in respect of
each Financial Year commencing with the Financial Year first ending
after the date hereof and in any event not later than 180 days after
the end of each such Financial Year a certificate signed by two
directors of the Current Issuer to the effect that as at a date not
more than seven days before delivering such certificate (the
"certification date") there did not exist 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 Current Issuer
Note Event of Default or any Current Issuer Potential Note 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 the Current Issuer has complied with all its
obligations contained in this Current Issuer Deed of Charge and each
of the other Current Issuer Transaction Documents or (if such is not
the case) specifying the respects in which it has not so complied;
(g) Further Assurances: so far as permitted by applicable law, at all
times execute all such further documents and do all such further
acts and things as may be necessary at any time or times in the
opinion of the Note Trustee to give effect to this Current Issuer
Deed of Charge and the other Current Issuer Transaction Documents;
(h) Compliance with Current Issuer Transaction Documents: observe and
comply with its obligations and use its reasonable endeavours to
procure that each other party to any of the Current Issuer
Transaction Documents complies with and performs all its respective
obligations under each Current Issuer Transaction Document and not
make any amendment or modification to such agreement or agree to
waive or authorise any breach thereof without the prior written
approval of the Note Trustee and notify the Note Trustee forthwith
upon becoming aware of any breach by any such other party to any
Current Issuer Transaction Document;
(i) Information: so far as permitted by applicable law, give or procure
to be given to the Note Trustee such opinions, certificates,
information and evidence as it shall require and in such form as it
shall require (including without limitation the procurement by the
Current Issuer of all such certificates called for by the Note
Trustee pursuant to this Current Issuer Deed of Charge) for the
purpose of the discharge or exercise of the duties, trusts, powers,
authorities and discretions vested in it under this Current Issuer
Deed of Charge or by operation of law;
(j) Taxes: duly and promptly pay and discharge all Taxes imposed upon it
or its assets unless such Taxes are, in the opinion of the Note
Trustee, being contested in good faith by the Current Issuer;
30
(k) Basis Rate Swap Agreement: in the event of termination of the
Current Issuer Basis Rate Swap Agreement, notify the Note Trustee
and the Rating Agencies and use its best efforts to enter into a
replacement basis rate swap agreement upon terms acceptable to the
Rating Agencies and the Note Trustee with a basis rate swap provider
whom the Rating Agencies have previously confirmed in writing to the
Current Issuer and the Note Trustee will not cause the then-current
ratings of the Current Issuer Notes to be downgraded, withdrawn or
qualified; and
(l) Currency Swap Agreements:
(i) Dollar Currency Swap Agreements: in the event of termination
of any Transaction (as defined in the Current Issuer Dollar
Currency Swap Agreements) under any Current Issuer Dollar
Currency Swap Agreement, notify the Note Trustee and the
Rating Agencies and use its best efforts to enter into a
replacement of that Transaction in respect of the Dollar
Notes (or, as applicable, the relevant class of the Dollar
Notes) upon terms acceptable to the Rating Agencies and the
Note Trustee with a dollar currency swap provider whom the
Rating Agencies have previously confirmed in writing to the
Current Issuer and the Note Trustee will not cause the
then-current ratings of the Current Issuer Notes to be
downgraded, withdrawn or qualified;
(ii) Euro Currency Swap Agreements: in the event of termination of
any Transaction (as defined in the Current Issuer Euro
Currency Swap Agreements) under any Current Issuer Euro
Currency Swap Agreement, notify the Note Trustee and the
Rating Agencies and use its best efforts to enter into a
replacement of that Transaction in respect of the Euro Notes
(or, as applicable, the relevant class of the Euro Notes)
upon terms acceptable to the Rating Agencies and the Note
Trustee with a euro currency swap provider whom the Rating
Agencies have previously confirmed in writing to the Current
Issuer and the Note Trustee will not cause the then-current
ratings of the Current Issuer Notes to be downgraded,
withdrawn or qualified;
(m) Bank Accounts: in the event of termination of the Current Issuer
Bank Account Agreement, subject to and in accordance with the
provisions of the Current Issuer Bank Account Agreement use its
reasonable endeavours to enter into a replacement bank account
agreement;
(n) Cash Management Agreement: in the event of termination of the
Current Issuer Cash Management Agreement, subject to and in
accordance with the provisions of the Current Issuer Cash Management
Agreement, use its reasonable endeavours to enter into a replacement
cash management agreement.
In addition to the foregoing, the Current Issuer hereby covenants with
each of the Current Issuer Swap Providers, that it shall not make any
amendment or modification to, or exercise any waiver in respect of, the
Current Issuer Cash Management Agreement which would be adversely
prejudicial to the interests of any Current Issuer Swap Provider, without
the prior written consent of the affected Current Issuer Swap
31
Provider save that to the extent required, such consent shall not be
unreasonably withheld or delayed.
16. Note Trustee Provisions
16.1 Supplement to Trustee Acts: It is hereby agreed that Clause 10
(Supplement to Trustee Acts) of the Current Issuer Trust Deed shall be
incorporated in and shall apply, mutatis mutandis, to this Current Issuer
Deed of Charge (and for that purpose references therein to "these
presents" or to "this Deed" shall be construed as references to this
Current Issuer Deed of Charge) provided that for the purposes of Clause
10.3(q) of the Current Issuer Trust Deed at any time after the redemption
in full of the Current Issuer Notes, the Note Trustee shall have regard
to the interests of the Current Issuer Secured Creditor which ranks next
highest under the Current Issuer Post-Enforcement Priority of Payment.
16.2 Appointment, Removal and Retirement: It is hereby agreed that Clause 14
(Appointment, Removal and Retirement of Note Trustee) of the Current
Issuer Trust Deed shall be incorporated in and shall apply, mutatis
mutandis, to this Current Issuer Deed of Charge (and for that purpose
references therein to "these presents" or to "this Deed" shall be
construed as references to this Current Issuer Deed of Charge) provided
that for the purposes of this Current Issuer Deed of Charge it shall be
an additional requirement that the Note Trustee under this Current Issuer
Deed of Charge shall be the same person or persons as the Note Trustee
under the Current Issuer Trust Deed.
16.3 Remuneration and Indemnification of Note Trustee: It is hereby agreed
that Clause 9 (Remuneration and Indemnification of Note Trustee) of the
Current Issuer Trust Deed shall be incorporated in and shall apply,
mutatis mutandis, to this Current Issuer Deed of Charge (and for that
purpose references therein to "these presents" or to "this Deed" shall be
construed as references to this Current Issuer Deed of Charge).
16.4 Meetings of Noteholders: It is hereby agreed that Schedule 4 (Provisions
for Meetings of Noteholders) of the Current Issuer Trust Deed shall be
incorporated in and shall apply, mutatis mutandis, to this Current Issuer
Deed of Charge.
16.5 Investment of Moneys: It is hereby agreed that Clause 8.3 (Authorised
Investments) of the Current Issuer Trust Deed shall be incorporated in
and shall apply, mutatis mutandis, to this Current Issuer Deed of Charge.
16.6 Acknowledgement: Each of the parties to this Current Issuer Deed of
Charge hereby acknowledges that it is bound by the provisions of the
Current Issuer Trust Deed which are incorporated by reference into this
Current Issuer Deed of Charge and confirms that it has received a copy of
the Current Issuer Trust Deed.
16.7 Jersey Law Waivers:
(a) Any right which at any time the Current Issuer has under the
existing or future laws of Jersey whether by virtue of the droit de
discussion or otherwise to require that recourse be had to the
assets of any other person before any claim is enforced against the
Current Issuer in respect of the obligations hereby assumed by the
Current Issuer is hereby abandoned and waived.
32
(b) The Current Issuer undertakes that if at any time any person
indemnified sues the Current Issuer in respect of any such
obligations and the person in respect of whose obligations the
indemnity is given is not sued also, the Current Issuer shall not
claim that such person be made a party to the proceedings and the
Current Issuer agrees to be bound by this indemnity whether or not
it is made a party to legal proceedings for the recovery of the
amount due or owing to the person indemnified, as aforesaid, by the
person in respect of whose obligations the indemnity is given and
whether the formalities required by any law of Jersey whether
existing or future in regard to the rights or obligations of
securities shall or shall not have been observed.
(c) Any right which the Current Issuer may have under the existing or
future laws of Jersey whether by virtue of the droit de division or
otherwise to require that any liability under the indemnity referred
to in (b) above be divided or apportioned with any other person or
reduced in any manner whatsoever is hereby abandoned and waived.
17. Modification and Waiver
17.1 Modification: The Note Trustee may without the consent or sanction of the
Noteholders or any other Current Issuer Secured Creditor at any time and
from time to time concur with the Current Issuer in making any
modification (except a Basic Terms Modification (as defined in paragraph
1 of Schedule 4 (Provisions for Meetings of Noteholders) to the Current
Issuer Trust Deed) (i) to this Current Issuer Deed of Charge, the Current
Issuer Notes, the Current Issuer Trust Deed or to any of the other
Transaction Documents which in the opinion of the Note Trustee it may be
proper to make PROVIDED THAT the Note Trustee is of the opinion that such
modification will not be materially prejudicial to the interests of the
Noteholders or (ii) to this Current Issuer Deed of Charge, the Current
Issuer Notes, the Current Issuer Trust Deed or any of the other
Transaction Documents if in the opinion of the Note Trustee such
modification is of a formal, minor or technical nature or to correct a
manifest error or proven error. For the purposes of this Clause 17.1
(Modification), a proposed modification will not materially harm the
interest of any Noteholder solely as a result of any New Issuer executing
a Deed of Accession pursuant to Clause 3.12 (New Intercompany Loans) of
the Funding Deed of Charge or Clause 2.2 (New Intercompany Loan
Agreement) of the Intercompany Loan Terms and Conditions. Any such
modification may be made on such terms and subject to such conditions (if
any) as the Note Trustee may determine, shall be binding upon the Current
Issuer and the Current Issuer Secured Creditors and, unless the Note
Trustee agrees otherwise, shall be notified by the Current Issuer to the
Noteholders in accordance with the Conditions and to the other Current
Issuer Secured Creditors as soon as practicable thereafter. So long as
any of the Current Issuer Notes are rated by the Rating Agencies, the
Current Issuer shall notify the Rating Agencies in writing as soon as
reasonably practicable thereafter of any modification to the provisions
of this Current Issuer Deed of Charge, the Current Issuer Notes, the
Current Issuer Trust Deed or any of the other Current Issuer Transaction
Documents.
17.2 Waiver: Subject as expressly provided otherwise in the Current Issuer
Notes or in any other Transaction Document, the Note Trustee may from
time to time and at any time without the consent or sanction of the
Noteholders or any other Current Issuer Secured Creditor and without
prejudice to its rights in respect of any subsequent
33
breach, but only if and in so far as in its opinion the interests of the
Noteholders shall not be materially prejudiced thereby waive or authorise
any breach or proposed breach by the Current Issuer or any other party
thereto of any of the covenants or provisions contained in this Current
Issuer Deed of Charge or in any of the other Transaction Documents or
determine that any Current Issuer Note Event of Default shall not be
treated as such for the purposes of this Current Issuer Deed of Charge,
the Current Issuer Notes and the Current Issuer Trust Deed PROVIDED
ALWAYS THAT the Note Trustee shall not exercise any powers conferred on
it by this Clause 17.2 (Waiver) in contravention of any express direction
given by Extraordinary Resolution or by a request in writing of the
relevant Noteholders in accordance with the Conditions (but so that no
such direction or request shall affect any waiver, authorisation or
determination previously given or made). Any such waiver, authorisation
or determination:
(a) may be given or made on such terms and subject to such conditions
(if any) as the Note Trustee may determine;
(b) shall be binding on the Noteholders and the other Current Issuer
Secured Creditors, if, but only if, the Note Trustee shall so
require; and
(c) shall be notified by the Current Issuer to the Noteholders in
accordance with the Conditions and to the other Current Issuer
Secured Creditors as soon as practicable thereafter.
The provisions of this Clause 17.2 (Waiver) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Current Issuer
Deed of Charge, the Current Issuer Notes and the Current Issuer Trust
Deed as permitted by the Trust Indenture Act.
18. Miscellaneous Provisions
18.1 Evidence of Indebtedness: In any action, proceedings or claim relating to
this Current Issuer Deed of Charge or the charges contained in this
Current Issuer Deed of Charge, a statement as to any amount due to any
Current Issuer Secured Creditor or of the Current Issuer Secured
Obligations or any part thereof or a statement of any amounts which have
been notified to the Note Trustee as being amounts due to any Current
Issuer Secured Creditor which is certified as being correct by an officer
of the Note Trustee or an officer of the relevant Current Issuer Secured
Creditor shall, save in the case of manifest error, be conclusive
evidence that such amount is in fact due and payable.
18.2 Liability: All the liabilities and obligations of the Current Issuer
under or by virtue of this Current Issuer Deed of Charge shall not be
impaired by:
(a) any failure of this Current Issuer Deed of Charge to be legal,
valid, binding and enforceable as regards the Current Issuer 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 the
Current Issuer;
34
(c) a discharge or release of the Current Issuer; 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 Current Issuer Secured Obligations and amounts
whatsoever which this Current Issuer Deed of Charge provides are to
be paid by the Current Issuer or an absolute discharge or release of
the Current Issuer signed by the Current Issuer Secured Creditors
and the Note Trustee.
18.3 Current Issuer Secured Creditors: Each Current Issuer Secured Creditor
shall be bound by the provisions of this Current Issuer Deed of Charge as
if it contained covenants by each Current Issuer Secured Creditor in
favour of the Note Trustee and every other Current Issuer Secured
Creditor to observe and be bound by all the provisions of this Current
Issuer Deed of Charge expressed to apply to the Current Issuer Secured
Creditors.
19. Rights cumulative
The respective rights of the Note Trustee, the Current Issuer Secured
Creditors and any Receiver to this Current Issuer Deed of Charge are
cumulative and may be exercised as often as each considers appropriate
and are in addition to their respective rights under the general law. No
failure on the part of the Note Trustee, the Current Issuer Secured
Creditors or any Receiver to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies in this
Current Issuer Deed of Charge are cumulative and not exclusive of any
remedies provided by law.
20. Assignment
None of the Current Issuer Secured Creditors may assign, encumber or
transfer all or any part of its rights or benefits and/or transfer its
obligations under this Current Issuer Deed of Charge without the prior
written consent of the Note Trustee.
21. Non Petition Covenant; Corporate Obligations
21.1 Non Petition: Each of the parties hereto hereby agrees that it shall not
institute against the Current Issuer any winding-up, administration,
insolvency or similar proceedings for so long as any sum is outstanding
under Current Issuer Notes or for two years plus one day since the last
day on which any such sum was outstanding provided that the Note Trustee
may prove or lodge a claim in the event of a liquidation initiated by any
other person.
21.2 Corporate Obligations: To the extent permitted by law, no recourse under
any obligation, covenant, or agreement of any person contained in this
Current Issuer Deed of Charge shall be had against any shareholder,
officer or director of such person as such, by the enforcement of any
assessment or by any legal proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement
is a corporate obligation of each person expressed to be a party hereto
and no personal liability shall attach to or be incurred by the
shareholders, officers, agents
35
or directors of such person as such, or any of them, under or by reason
of any of the obligations, covenants or agreements of such person
contained in this Current Issuer Deed of Charge, or implied therefrom,
and that any and all personal liability for breaches by such person of
any of such obligations, covenants or agreements, either under any
applicable law or by statute or constitution, of every such shareholder,
officer, agent or director is hereby expressly waived by each person
expressed to be a party hereto as a condition of and consideration for
the execution of this Current Issuer Deed of Charge.
22. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Current Issuer Deed of Charge to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or by facsimile transmission and shall be deemed to be given (in
the case of facsimile transmission) when despatched or (where delivered
by hand) on the day of delivery if delivered before 17.00 hours on a
London Business Day or on the next London Business Day if delivered
thereafter or (in the case of first class post) when it would be received
in the ordinary course of the post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 03-3 plc,
Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020
7606 0643) for the attention of the Company Secretary with a copy to
Northern Rock plc, Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx
Xxxx XX0 0XX (facsimile number 0191 213 2203) for the attention of
the Group Secretary;
(b) in the case of the Note Trustee, to The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, attention Corporate Trust
(Global Structured Finance) (facsimile number 020 7964 6399);
(c) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent or the Account Bank, to Citibank,
N.A., 0 Xxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX;
(d) in the case of the Current Issuer Cash Manager to Northern Rock plc,
Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(e) in the case of the U.S. Paying Agent, to Citibank, N.A., 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxxx 0, Xxx Xxxx, X.X. 00000, X.X.X. (facsimile
number 000 000 0000) for the attention of Global Agency and Trust;
(f) in the case of the Basis Rate Swap Provider, to Northern Rock plc,
Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(g) in the case of the Dollar Currency Swap Provider to Swiss Re
Financial Products Corporation, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (facsimile number: x0(000) 000 0000) for the attention of
Head of Operations;
36
(h) in the case of the Euro Currency Swap Provider to Citibank, N.A.
London Branch, Citigroup Centre, 00 Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(facsimile number: x00 000 000 0000) for the attention of Head of
Sales/Trading Legal Dept.;
(i) in the case of the Corporate Services Provider, to Law Debenture
Corporate Services Limited, Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx
XX0X 0XX (facsimile number 020 7606 0643) for the attention of the
Company Secretary;
(j) in the case of Moody's, to Xxxxx'x Investor Services, 1st Floor, 0
Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number 020
7772 5400) for the attention of Head of Monitoring Group, Structured
Finance;
(k) in the case of S&P, to Standard & Poor's, Garden House, 00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020 7826 3598) for the
attention of the Structured Finance Surveillance Group; and
(l) 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 fifteen days prior written notice in accordance with the
provisions of this Clause 22 (Notices).
23. Third Party Rights
A person who is not a party to this Current Issuer Deed of Charge may not
enforce any of its terms under the Contracts (Rights of Third Parties)
Xxx 0000, but this shall not affect any right or remedy of a third party
which exists or is available apart from that Act.
24. Execution in Counterparts; Severability
24.1 Counterparts: This Deed may be executed in any number of counterparts
(manually or by facsimile) and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and
the same instrument.
24.2 Severability: Where any provision in or obligation under this Current
Issuer Deed of Charge shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations under this Current Issuer Deed of Charge, or of
such provision or obligation in any other jurisdiction, shall not be
affected or impaired thereby.
25. Governing Law and Jurisdiction; Appropriate Forum
25.1 Governing Law: This Deed is governed by, and shall be construed in
accordance with, English law, save that those parts of this Current
Issuer Deed of Charge concerned with the creation, subsistence or
enforcement of the Jersey Security Interests shall be governed by, and
shall be construed in accordance with Jersey law.
37
25.2 Jurisdiction: Each of the parties hereto irrevocably agrees that the
courts of England shall have jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of
or in connection with this Current Issuer Deed of Charge and, for such
purposes, irrevocably submits to the jurisdiction of such courts.
25.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and to
settle any disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
IN WITNESS of which this Current Issuer Deed of Charge has been executed by
the parties hereto as a deed which has been delivered on the date first
appearing on page one.
38
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [o] 2003 by Granite Mortgages 03-3 plc
(registered number 4823268) a private limited liability company incorporated
under the laws of England and Wales whose registered office is at Xxxxx Xxxxx,
000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (the "Principal").
WHEREAS
(1) By virtue of a Deed (as amended, varied, supplemented or novated from
time to time the "Current Issuer Deed of Charge") dated [o] 2003 between
Granite Mortgages 03-3 plc, The Bank of New York as Note Trustee 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 Current Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably (within the meaning of Section 4 of the
Powers of Attorney Act 1971) and by way of security for the payment and
performance of the Current Issuer Secured Obligations and the covenants,
conditions, obligations and undertakings on the part of the Principal
contained in the Current Issuer Deed of Charge and the other Current
Issuer Transaction Documents to which the Principal is a party from time
to time appoints The Bank of New York and any other person or persons for
the time being the Note Trustee or Note Trustees of and under the Current
Issuer Deed of Charge (the "Attorney") and each and every person to whom
the Note Trustee shall from time to time have delegated the exercise of
the power of attorney conferred by this Power of Attorney (each a
"Delegate") and any receiver including any administrative receiver and
any manager (the "Receiver") and/or administrator (the "Administrator")
appointed from time to time by the Attorney or on its behalf its true and
lawful attorney for and in the Principal's name or otherwise jointly and
severally to sign, seal, execute, deliver, perfect and do any assurance,
act, matter or thing which the Attorney, Delegate, Receiver or
Administrator considers in each case to be necessary for the protection
or preservation of the Attorney's and the Current Issuer Secured
Creditors' interests and rights (as described in the Current Issuer Deed
of Charge) in and to the Current Issuer Charged Property or which ought
to be done by the Principal under the covenants, undertakings and
provisions contained in the Current Issuer Deed of Charge and the other
Current Issuer Transaction Documents to which the Principal is a party
from time to time and generally to in its name and on its behalf to
exercise all or any of the powers, authorities or discretions conferred
by or pursuant to the Current Issuer Deed of Charge on the Note Trustee
and/or any Receiver whether on or at any time after the security has
become enforceable in accordance with Clause 7.2 (Enforceable) of the
Current Issuer Deed of Charge or in any other circumstances where the
Attorney has become entitled to take any of the
39
steps referred to in the Current Issuer Deed of Charge including (without
limitation) any or all of the following:
(a) to do every act or thing which the Attorney, Delegate, Receiver or
Administrator may deem to be necessary, proper or expedient for
getting in any of the Current Issuer Charged Property and/or fully
and effectively vesting, transferring or assigning the Current
Issuer Charged Property or any part thereof and/or the Principal's
estate, right, title, benefit and/or interest therein or thereto in
or to the Attorney and its successors in title or other person or
persons entitled to the benefit thereof or for carrying into effect
any other dealing with the Current Issuer Charged Property
whatsoever permitted under the Current Issuer Deed of Charge in the
same manner and as fully and effectively as the Principal could have
done;
(b) the power by writing under its hand by an officer of the Attorney
(including every Receiver appointed under the Current Issuer Deed of
Charge) from time to time to appoint a substitute attorney (each a
"Substitute") who shall have power to act on behalf of the Principal
as if that Substitute shall have been originally appointed Attorney
by this Power of Attorney and/or to revoke any such appointment at
any time without assigning any reason therefor.
2. In favour of the Attorney, any Delegate, any Receiver and/or
Administrator and/or Substitute, or a person dealing with any of them and
the successors and assigns of such a person, all acts properly done and
documents executed or signed by the Attorney, a Delegate, a Receiver, an
Administrator or a Substitute in the purported exercise of any power
conferred by this Power of Attorney shall for all purposes be valid and
binding on the Principal and its successors and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify the
Attorney and each Delegate, Receiver and/or Administrator and/or
Substitute appointed from time to time by the Attorney and their
respective estates (each an "Indemnified Party") against all actions,
proceedings, claims, costs, expenses and liabilities of every description
arising from the exercise, or the purported exercise, of any of the
powers conferred by this Power of Attorney, save where the same arises as
the result of the fraud, negligence or wilful default of the relevant
Indemnified Party or its officers or employees.
4. The provisions of Clause 3 (Current Issuer Security) of the Current
Issuer Deed of Charge shall continue in force after the revocation or
termination, howsoever arising, of this Power of Attorney.
5. The laws of England and Wales shall apply to this Power of Attorney and
the interpretation thereof and to all acts of the Attorney and each
Delegate, Receiver and/or Administrator and/or Substitute carried out or
purported to be carried out under the terms hereof except that in
relation to any action taken by the Attorney, each Delegate, Receiver
and/or Administrator and/or Substitute in respect of the Jersey Security
Interests or the Current Issuer Jersey Secured Property, the laws of
Jersey shall apply.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any
Delegate, Receiver or Administrator
40
or Substitute shall properly and lawfully do or cause to be done in and
concerning the Current Issuer Charged Property.
IN WITNESS whereof this Power of Attorney has been executed as a deed by the
Principal the day and year first before written.
EXECUTED AS A DEED by )
GRANITE MORTGAGES 03-3 PLC )
acting by: )
Director
Name:
Title:
Director/Secretary
Name:
Title:
41
SCHEDULE 2
CURRENT ISSUER POST-ENFORCEMENT PRIORITY OF PAYMENTS
Following enforcement of the Current Issuer Security, on each Payment Date the
Note Trustee (or the Current Issuer Cash Manager on its behalf) will apply
amounts received or recovered as follows:
(A) first, to pay amounts due to the Note Trustee (and any Receiver
appointed by the Note Trustee) together with interest and (if
necessary) VAT on those amounts and to provide for any amounts then
due or to become due and payable to the Note Trustee and the
Receiver under the provisions of the Current Issuer Trust Deed, the
Current Issuer Deed of Charge and any other Transaction Document;
(B) second, to pay, in no order of priority among them but in proportion
to the respective amounts due, the Agent Bank, the Paying Agents,
the Transfer Agent and the Registrar, together with interest and (if
necessary) VAT on those amounts and to provide for any costs,
charges, liabilities and expenses then due or to become due and
payable to them under the provisions of the Current Issuer Paying
Agent and Agent Bank Agreement;
(C) third, in no order of priority among them but in proportion to the
respective amounts due, towards payment of amounts (together with
(if necessary) VAT on those amounts) due and payable to the Current
Issuer Cash Manager under the Current Issuer Cash Management
Agreement and to the Corporate Services Provider under the Current
Issuer Corporate Services Agreement and to the Account Bank under
the Current Issuer Bank Account Agreement;
(D) fourth, in no order of priority among them but in proportion to the
respective amounts due, to pay:
(i) amounts (including such part of any termination payment) due
to the Basis Rate Swap Provider (except for any termination
payment or any part thereof due and payable to the Basis Rate
Swap Provider as a result of a Basis Rate Swap Provider
Default by that Basis Rate Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment made to the Current Issuer following a
Downgrade Termination Event in respect of the Basis Rate Swap
and applied in accordance with this order of priority of
payments);
(ii) amounts (including such part of any termination payment) due
to the Series 1 Class A1 Dollar Currency Swap Provider under
the Series 1 Class A1 Dollar Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a
42
Downgrade Termination Event in respect of the Series 1 Class
A1 Dollar Currency Swap and applied in accordance with this
order of priority of payments) and from amounts received from
the Series 1 Class A1 Dollar Currency Swap Provider to pay
interest due or overdue and to repay principal on the Series
1 Class A1 Notes until the Series 1 Class A1 Notes have been
repaid in full;
(iii) amounts (including such part of any termination payment) due
to the Series 1 Class A2 Dollar Currency Swap Provider under
the Series 1 Class A2 Dollar Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 1
Class A2 Dollar Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 1 Class A2 Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on the
Series 1 Class A2 Notes until the Series 1 Class A2 Notes
have been repaid in full; and
(iv) amounts (including such part of any termination payment) due
to the Series 1 Class A3 Dollar Currency Swap Provider under
the Series 1 Class A3 Dollar Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 1
Class A3 Dollar Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 1 Class A3 Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on the
Series 1 Class A3 Notes until the Series 1 Class A3 Notes
have been repaid in full;
(v) amounts (including such part of any termination payment) due
to the Series 2 Class A Euro Currency Swap Provider under the
Series 2 Class A Euro Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Euro Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 2
Class A Euro Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 2 Class A Euro Currency Swap Provider to pay
interest due or overdue and to repay principal on the Series
2 Class A Notes until the Series 2 Class A Notes have been
repaid in full; and
(vi) interest due or overdue and to repay principal of the Series
3 Class A Notes until the Series 3 Class A Notes have been
repaid in full;
43
(E) fifth, in no order of priority among them but in proportion to the
respective amounts due, to pay:
(i) amounts (including such part of any termination payment) due
to the Series 1 Class B Dollar Currency Swap Provider under
the Series 1 Class B Dollar Currency Swap (except for any
termination payment due or any part thereof and payable to
that Swap Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 1
Class B Dollar Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 1 Class B Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on the
Series 1 Class B Notes until the Series 1 Class B Notes have
been repaid in full;
(ii) amounts (including such part of any termination payment) due
to the Series 2 Class B Euro Currency Swap Provider under the
Series 2 Class B Euro Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Euro Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 2
Class B Euro Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 2 Class B Euro Currency Swap Provider to pay
interest due or overdue and to repay principal on the Series
2 Class B Notes until the Series 2 Class B Notes have been
repaid in full; and
(iii) interest due or overdue and to repay principal of the Series
3 Class B Notes until the Series 3 Class B Notes have been
repaid in full;
(F) sixth, in no order of priority among them but in proportion to the
respective amounts due, to pay:
(i) amounts (including such part of any termination payment) due
to the Series 1 Class M Dollar Currency Swap Provider under
the Series 1 Class M Dollar Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider, save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 1
Class M Dollar Currency Swap and applied in accordance with
this order of priority of payment) and from amounts received
from the Series 1 Class M Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on the
Series 1 Class M Notes until the Series 1 Class M Notes have
been repaid in full;
44
(ii) amounts (including such part of any termination payment) due
to the Series 2 Class M Euro Currency Swap Provider under the
Series 2 Class M Euro Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Euro Currency Swap
Provider default by that Swap Provider, save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 2
Class M Euro Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 2 Class M Euro Currency Swap Provider to pay
interest due or overdue and to repay principal of the Series
2 Class M Notes until the Series 2 Class M Notes have been
repaid in full; and
(iii) interest due or overdue and to repay principal of the Series
3 Class M Notes until the Series 3 Class M Notes have been
repaid in full;
(G) seventh, in no order of priority among them but in proportion to the
respective amounts due, to pay:
(i) amounts (including such part of any termination payment) due
to the Series 1 Class C Dollar Currency Swap Provider under
the Series 1 Class C Dollar Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 1
Class C Dollar Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 1 Class C Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on the
Series 1 Class C Notes until the Series 1 Class C Notes have
been repaid in full;
(ii) amounts (including such part of any termination payment) due
to the Series 2 Class C Euro Currency Swap Provider under the
Series 2 Class C Euro Currency Swap (except for any
termination payment or any part thereof due and payable to
that Swap Provider as a result of a Euro Currency Swap
Provider Default by that Swap Provider save to the extent
such termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer following
a Downgrade Termination Event in respect of the Series 2
Class C Euro Currency Swap and applied in accordance with
this order of priority of payments) and from amounts received
from the Series 2 Class C Euro Currency Swap Provider to pay
interest due or overdue and to repay principal on the Series
2 Class C Notes until the Series 2 Class C Notes have been
repaid in full; and
(iii) to pay interest due or overdue and to repay principal on the
Series 3 Class C Notes until the Series 3 Class C Notes have
been repaid in full;
45
(H) eighth, in no order of priority among them but in proportion to the
respective amounts due, to pay any termination payment to:
(i) the Basis Rate Swap Provider following a Basis Rate Swap
Provider Default by the Basis Rate Swap Provider;
(ii) the Dollar Currency Swap Provider following a Dollar Currency
Swap Provider Default by the Dollar Currency Swap Provider;
(iii) the Euro Currency Swap Provider following a Euro Currency
Swap Provider Default by the Euro Currency Swap Provider; and
(I) last, to pay any amount remaining following the application of
principal and revenue set forth in paragraphs (A) through (H) above,
to the Current Issuer.
Following enforcement of the Current Issuer Security, if, on any Payment
Date, an amount equal to the cash benefit relating to any Tax Credit
obtained by the Current Issuer is required to be paid to any Current
Issuer Swap Provider (in accordance with Part 5(o) of the Schedule to the
relevant Current Issuer Swap Agreement), then the Note Trustee shall make
such payment on such Payment Date out of amounts received or recovered in
priority to the payments and provisions to be made on such Payment Date
in accordance with the Current Issuer Post-Enforcement Priority of
Payments. The amount of any such cash benefit paid to the relevant
Current Issuer Swap Provider in accordance with this paragraph shall, to
avoid double counting, be deducted from the amount to be paid to that
Current Issuer Swap Provider under the relevant Current Issuer Swap
Agreement in accordance with the Current Issuer Post-Enforcement Priority
of Payments on the relevant Payment Date.
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SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT
To: [Addressee(s)]
Granite Mortgages 03-3 plc - Assignment of rights under Current Issuer
Transaction Documents
[o], 2003
Dear Sirs,
Terms and expressions used in this letter are as defined in a deed of charge
(the "Current Issuer Deed of Charge") between Granite Mortgages 03-3 plc (the
"Current Issuer"), The Bank of New York (the "Note Trustee") and others dated
[o] 2003.
We hereby give notice to each addressee of this letter that by assignment(s)
under or pursuant to the Current Issuer Deed of Charge, the Current Issuer has
assigned absolutely, by way of security for the payment and performance of
certain obligations of the Current Issuer described in the Current Issuer Deed
of Charge (the "Current Issuer Secured Obligations"), to the Note Trustee all
its right, title, benefit and interest under the [Agreement(s)] (the "Current
Issuer Transaction Documents") [including its right, title interest and
benefit in relation to [describe property] and including, without limitation,
all rights to receive payment of any amounts which may become payable to the
Current Issuer thereunder, all payments received by the Current Issuer
thereunder, all rights to serve notices and/or make demands thereunder and/or
to take such steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach thereof and all
rights to receive damages or obtain relief in respect thereof and the proceeds
of any of the foregoing, (hereinafter called "Relevant Current Issuer
Property").
In relation to any of the Relevant Current Issuer Property which may be
situated in Jersey at any time, we hereby give notice for the purpose of the
Security Interests (Jersey) Law 1983 to each addressee of this letter that
with the intention of creating a security interest in accordance with such law
in such property in favour of the Note Trustee for the payment and performance
of the Current Issuer Secured Obligations, the Current Issuer has assigned all
of its rights, title, benefit and interest, present and future, in, to and
under the Relevant Current Issuer Property to the Note Trustee.
By signing the enclosed copy of this notice you acknowledge and consent to the
assignments and agree that:
(a) from the date of this notice you are obliged to and you will pay all
moneys which are or may become payable to the Current Issuer under
the aforesaid agreements to or to the order of the Note Trustee; and
(b) you have not, at the date of this notice, received notice that any
third party has or will have any right of interest whatsoever in the
Relevant Current Issuer Property.
47
Notwithstanding the assignments made by the Current Issuer and referred to in
this notice, the Note Trustee hereby confirms and you further acknowledge
that:
(a) you may continue to make all payments becoming due to the Current
Issuer in respect of the Relevant Current Issuer Property in the
manner envisaged by the relevant Current Issuer Transaction
Document(s); and
(b) the Current Issuer shall be entitled to exercise its rights, powers
and discretions and perform its obligations in relation to the
Relevant Current Issuer Property and under the Current Issuer
Transaction Documents in accordance with the provisions of the
Current Issuer Transaction Documents,
but only until such time as you receive notice from the Note Trustee to the
contrary or to the effect that the security created under the Current Issuer
Deed of Charge has become enforceable, in which event from receipt of such
notice you agree that you will pay all monies becoming due and payable to the
Current Issuer in respect of the Relevant Current Issuer Property in
accordance with any instructions received from the Note Trustee.
This letter is governed by, and shall be construed in accordance with, English
law, except that to the extent of any Relevant Current Issuer Property which
may be situated in Jersey at any time, it is governed by and shall be
construed in accordance with the laws of Jersey.
Please acknowledge receipt of this notice by executing and returning the copy
of this letter attached hereto.
Yours faithfully,
EXECUTED for and on behalf of )
GRANITE MORTGAGES 03-3 PLC )
by: )
Authorised Signatory
Name:
Title:
48
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by: )
Authorised Signatory
Name:
Title:
We acknowledge receipt of the above notice and the terms of the assignment
created by you in respect of the Relevant Current Issuer Property.
In respect of the [Agreement]:
For and on behalf of )
[Party to Current Issuer Transaction Document] )
by: )
Authorised Signatory
Name:
Title:
49
EXECUTION PAGE
The Current Issuer
Executed by
GRANITE MORTGAGES 03-3 PLC
as its deed as follows: By: __________________________________________
Signed for and on its behalf by one of its for and on behalf of LDC
directors and by another of its directors/its Securitisation Director No. 1 Limited
secretary - Director
Name: Xxxxx Xxxxxxxxx
----------------------------------------
By: __________________________________________
for and on behalf of LDC
Securitisation Director/Secretary No.
2 Limited - Director
Name: Xxx Xxxxxx
----------------------------------------
The Note Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By: __________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name: ________________________________________
The Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent, and the Account
Bank
Executed by
CITIBANK, N.A.
as follows: By: __________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name: ________________________________________
50
The US Paying Agent
Executed by
CITIBANK, N.A.
as follows: By: _________________________________________
Signed for and on its behalf by one of its duly Duty Authorised Attorney/Signatory
authorised attorneys/signatories
Name: _______________________________________
The Current Issuer Cash Manager and the Basis Rate Swap Provider
Executed by
NORTHERN ROCK PLC
as its deed as follows: By: _________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name: _______________________________________
Signature:________________________________
Witness
Full Name: ______________________________
Occupation: _____________________________
Address: Solicitor
--------------------------------
c/o Sidley Xxxxxx Xxxxx & Xxxx
--------------------------------
0 Xxxxxxxxxxxx Xxxxxx
--------------------------------
Xxxxxx XX0X 0XX
--------------------------------
The Corporate Service Provider
Executed by
LAW DEBENTURE CORPORATE SERVICES LIMITED
as its deed as follows: By: _________________________________________
Signed for and on its behalf by one of its Director
directors and by another of its directors/its
secretary Name: _______________________________________
By: _________________________________________
Director/Secretary
Name: _______________________________________
51
The Dollar Currency Swap Provider
Executed by
SWISS RE FINANCIAL PRODUCTS CORPORATION By: _________________________________________
as its deed as follows: Duly Authorised Signatory
Signed for and on its behalf by two of its
duly authorised signatories
Name: _______________________________________
The Dollar Currency Swap Provider
Executed by
CITIBANK, N.A. LONDON BRANCH By: _________________________________________
as its deed as follows: Duly Authorised Signatory
Signed for and on its behalf by two of its
duly authorised signatories
Name: _______________________________________
By: _________________________________________
Duly Authorised Signatory
Name: _______________________________________
52
