Exhibit 4.4.1
EXECUTION VERSION
Dated 19 January 2005
GRANITE MASTER ISSUER PLC
THE BANK OF NEW YORK
as Note Trustee and Issuer Security Trustee
- and -
OTHERS
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FIRST AMENDED ISSUER DEED OF CHARGE
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SIDLEY AUSTIN
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SIDLEY
CONTENTS
1. Interpretation........................................................2
2. Issuer Security.......................................................3
3. Release of Issuer Charged Property....................................6
4. Declaration of Trust..................................................7
5. Restrictions on Exercise of Certain Rights............................7
6. Enforcement..........................................................11
7. Upon Enforcement.....................................................14
8. Receiver.............................................................18
9. Further Assurance and Power of Attorney..............................22
10. Crystallisation......................................................23
11. Provisions relating to the Security..................................25
12. Protection of Third Parties..........................................26
13. Set-Off..............................................................27
14. Representations and Covenants........................................27
15. Supplement to Trustee Acts...........................................32
16. Appointment, Removal and Retirement..................................41
17. Remuneration and Indemnification of Issuer Security Trustee..........43
18. Modification and Waiver..............................................45
19. Miscellaneous Provisions.............................................47
20. Rights cumulative....................................................48
21. Assignment...........................................................48
22. Non Petition Covenant; Corporate Obligations.........................48
23. Notices..............................................................48
24. Third Party Rights...................................................49
25. Execution in Counterparts; Severability..............................49
26. Governing Law and Jurisdiction; Appropriate Forum....................50
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SCHEDULE 1 FORM OF SECURITY POWER OF ATTORNEY................................54
SCHEDULE 2 ISSUER PRIORITY OF PAYMENTS.......................................57
SCHEDULE 3 FORM OF NOTICE OF ASSIGNMENT......................................69
SCHEDULE 4 ISSUER RESERVE FUND...............................................72
SCHEDULE 5 FORM OF ACCESSION UNDERTAKING.....................................74
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THIS DEED OF CHARGE WAS MADE ON 19 JANUARY, 2005, AND AMENDED AND RESTATED
PURSUANT TO THE DEED OF AMENDMENT AND RESTATEMENT DATED 17 MAY 2007, BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668) 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
Master Issuer;
(2) THE BANK OF NEW YORK, a New York banking corporation acting through its
London office at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX in its
separate capacities as (1) Issuer Security Trustee and (2) Note Trustee;
(3) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX, in its separate capacities as (1)
Principal Paying Agent, (2) Agent Bank, (3) Registrar, (4) Transfer
Agent and (5) an Issuer Account Bank;
(4) CITIBANK, N.A., acting through its office at 14th Floor, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000, X.X.X., in its capacity as US Paying
Agent;
(5) 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
separate capacities as (1) Issuer Cash Manager, (2) an Issuer Account
Bank and (3) Start-Up Loan Provider; and
(6) 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.
WHEREAS:
(A) This Deed secures and will secure, inter alia, the Issuer Secured
Obligations.
(B) The Master Issuer may, from time to time, issue Series of Issuer Notes
pursuant to the 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 Master
Issuer for the benefit of the Noteholders on the terms set out in the
Issuer Paying Agent and Agent Bank Agreement.
(D) The Issuer Cash Manager has agreed to act as cash manager and to provide
certain administration and cash management services to the Master Issuer
on the terms set out in the Issuer Cash Management Agreement.
(E) The Issuer Account Banks have agreed to provide certain bank account
services to the Master Issuer on the terms set out in the Issuer Bank
Account Agreement.
(F) The Issuer GIC Provider has agreed to provide certain guaranteed
investment services to the Master Issuer on the terms set out in the
Issuer Bank Account Agreement.
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(G) The Start-Up Loan Provider has agreed to make available Start-Up Loan
Tranches to the Master Issuer on the terms set out in the Start-Up Loan
Agreement.
(H) The Corporate Services Provider has agreed to act as corporate services
provider to, inter alios, the Master Issuer on the terms set out in the
Corporate Services Agreement.
(I) This Deed is supplemental to the Issuer Trust Deed of even date herewith
and made between the Master Issuer and the Note Trustee relating to the
issuance of the Issuer Notes.
(J) New Issuer Secured Creditors, including, but not restricted to, any
Issuer Swap Provider may accede to this Deed from time to time on the
terms set out herein.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. Interpretation
1.1 Definitions: The provisions of:
(a) the Programme Master Definitions Schedule signed for the purposes
of identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx
LLP on 19 January 2005, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx LLP
on 19 January 2005,
(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 Deed.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Programme Master Definitions
Schedule.
1.2 Construction: In this Deed, except where the context otherwise requires:
(a) a reference in this Deed to any property, assets, undertakings or
rights includes, unless the context otherwise requires, present
and future property, assets, undertakings or rights;
(b) "this Issuer Deed of Charge", "this Deed of Charge" or "this Deed"
means this Deed and all the Schedules hereto (as from time to time
modified and/or supplemented in accordance with the provisions set
out herein) and all Deeds of Accession entered into under or
pursuant to this Deed 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;
(c) reference to any agreement or other document (including any of the
Issuer Transaction Documents) shall be deemed also to refer to
such agreement or document as amended, varied, supplemented or
novated from time to time;
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(d) references to any person shall include references to his
successors, transferees and assigns and any person deriving the
title under or through him; and
(e) any reference to a Receiver shall be to the Receiver appointed by
the Issuer Security Trustee, pursuant to the terms of this Deed.
2. Issuer Security
2.1 Issuer Charged Property:
The Master Issuer, by way of first fixed security for the payment or
discharge of the Issuer Secured Obligations, subject to Clause 3
(Release of Issuer Charged Property), hereby assigns to the Issuer
Security Trustee, all of its right, title, benefit and interest and all
claims, present and future, in, to and under the security and all
property, assets, rights and claims held on trust by the Funding 2
Security Trustee for the payment or discharge of the relevant Funding 2
Secured Obligations pursuant to the Funding 2 Deed of Charge including
all rights to receive payment of any amount which may become payable to
the Master 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 Issuer Security Trustee absolutely.
2.2 Contractual rights:
(a) The Master Issuer, by way of first fixed security for the payment
or discharge of the Issuer Secured Obligations, subject to Clause
3 (Release of Issuer Charged Property), hereby assigns to the
Issuer Security Trustee, all of its right, title, benefit and
interest, present and future, in, to and under each of the Issuer
Transaction Documents (other than this Deed and provided that the
assignment of the right, title, benefit and interest of the Master
Issuer under each Issuer Swap Agreement shall be subject to the
rights of set-off and netting provided therein) including, without
limitation, all rights to receive payment of any amounts which may
become payable to the Master Issuer thereunder and all payments
received by the Master 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, TO HOLD
the same unto the Issuer Security Trustee absolutely.
2.3 Accounts: The Master Issuer, by way of first fixed security for the
payment or discharge of the Issuer Secured Obligations, subject to
Clause 3 (Release of Issuer Charged Property), hereby charges in favour
of the Issuer Security Trustee all of its rights, title, benefit and
interest, present and future, in, to and under:
(a) each Issuer Bank Account;
(b) any Issuer Swap Collateral Account; and
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(c) each other account (if any) in which the Master 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.
2.4 Authorised Investments and Swap Collateral: The Master Issuer, by way of
first fixed security for the payment or discharge of the Issuer Secured
Obligations, subject to Clause 3 (Release of Issuer Charged Property),
hereby charges in favour of the Issuer Security 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 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.
2.5 Floating Charge: The Master Issuer, by way of first floating security
for the payment or discharge of the Issuer Secured Obligations, subject
to Clause 3 (Release of Issuer Charged Property), hereby charges in
favour of the Issuer Security 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 2 (Issuer Security) and/or any Deed of
Accession.
2.6 Title Guarantee: Each of the dispositions of, assignments of or charges
over property effected in or pursuant to this Deed is made with full
title guarantee.
2.7 Further Acquired Items: For the avoidance of doubt, it is hereby
confirmed that the Security Interests created under or pursuant to
Clauses 2.1 (Funding 2 Charged Property) to Clause 2.4 (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.
2.8 No Transfer of Obligations: Notwithstanding anything else in this Deed,
it is hereby agreed that dispositions of property effected in or
pursuant to this Clause 2 (Issuer Security) do not transfer obligations
and nothing herein shall be construed as a transfer of obligations to
the Issuer Security Trustee.
2.9 Notice and Acknowledgement:
(a) The execution of this Deed and/or any Deed of Accession by any
Issuer Secured Creditor shall constitute express notice to such
Issuer Secured
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Creditor of the assignments, charges and any other Security
Interests made by the Master Issuer pursuant to this Deed.
(b) By its execution of this Deed and/or any Deed of Accession each
Issuer Secured Creditor acknowledges and consents to the Issuer
Security and also acknowledges that as at the date hereof it has
not received from any other person notice of any assignment,
charge or other Security Interest of the Issuer Charged Property.
(c) Notwithstanding the Issuer Security and subject as provided
otherwise in this Deed, each of the parties hereto acknowledges
that:
(i) each Issuer Secured Creditor and each other party to any
Issuer Transaction Document may continue to make all
payments becoming due to the Master Issuer under any Issuer
Transaction Document in the manner envisaged by such Issuer
Transaction Document until the receipt of written notice
from the Issuer Security Trustee or any Receiver requiring
payments to be made otherwise; and
(ii) until the Issuer Security becomes enforceable in accordance
with Clause 6.2 (Enforceable), the Master Issuer shall be
entitled to exercise its rights, powers and discretions and
perform its obligations in relation to the Issuer Charged
Property and under the Issuer Transaction Documents in
accordance with the provisions of the Issuer Transaction
Documents.
2.10 Issuer Security Trustee's Discretion in relation to Issuer Charged
Property:
Without prejudice to any other rights of the Issuer Security Trustee
after the Issuer Security has become enforceable and subject to the
terms of the Issuer Transaction Documents, the Issuer Security Trustee
may from time to time at any time after any part or parts of the 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, suits and
proceedings in relation to the Issuer Charged Property as it may
think expedient;
(b) exercise or refrain from exercising, in such manner as in its
absolute discretion the Issuer Security Trustee shall think fit,
all or any of the rights, powers, authorities, discretions or
remedies of the Master Issuer under or in relation to the 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 Issuer Charged
Property. For the avoidance of doubt, the Issuer Security Trustee
shall not be required to have regard to the interests of the
Master 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 Master Issuer in relation thereto; and
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(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 Master Issuer but which remains unpaid under or
in respect of the Issuer Charged Property or any part thereof
either in its own name or in the name of the Master Issuer.
2.11 Accession of New Issuer Secured Creditors: As a condition precedent to
any Series of Issuer Notes issued under the Programme, any New Issuer
Secured Creditor shall accede to the terms of this Deed by executing an
Accession Undertaking in the form or substantially in the form set out
in Schedule 5 (Form of Accession Undertaking) to this Deed.
3. Release of Issuer Charged Property
3.1 Release, Reassignment or Discharge: Upon the irrevocable and
unconditional payment in full or discharge (or any combination of the
foregoing) of all the Issuer Secured Obligations and upon the Issuer
Security Trustee being satisfied that the Master Issuer is under no
further actual or contingent obligation under this Deed or any other
Issuer Transaction Document, the Issuer Security Trustee shall, at the
request and cost of the Master Issuer, release, reassign and/or
discharge from the Issuer Security all of the Issuer Charged Property
to, or to the order of, the Master 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 Deed and the liability of the Master Issuer
hereunder shall continue as if there had been no such release,
re-assignment or discharge.
3.2 Disposal of Authorised Investments and Swap Collateral: On the making at
any time by the Issuer Cash Manager on behalf of the Master Issuer of a
disposal of any Authorised Investment or Swap Collateral in the form of
securities charged pursuant to Clause 2.4 (Authorised Investments and
Swap Collateral), the Issuer Security Trustee shall, if so requested by
and at the sole cost and expense of the Master Issuer, but without the
Issuer Security Trustee being responsible for any loss, costs, claims or
liabilities whatsoever occasioned by so acting upon such request,
release, reassign or discharge from the Issuer Security 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 Master Issuer into the 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 Master Issuer into the relevant Issuer Swap Collateral Cash
Account or Issuer Bank Account (as appropriate in accordance with the
Issuer Cash Management Agreement) subject to and in accordance with the
provisions of this Deed and the Issuer Transaction Documents.
3.3 Withdrawals from Issuer Bank Accounts and Issuer Swap Collateral
Accounts: Subject to and in accordance with this Deed and the other
Issuer Transaction Documents, the Issuer Cash Manager, on behalf of the
Master Issuer and the Issuer Security Trustee, is permitted pursuant to
Clause 5 (Restrictions on Exercise of Certain Rights) from time to time
to withdraw amounts from the Issuer Bank Accounts in order to apply such
amounts in accordance with the relevant Issuer Priority of Payments and
from time to time to withdraw amounts or securities from
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the Issuer Swap Collateral Accounts in order to apply such amounts or
securities in accordance with the Issuer Cash Management Agreement. Any
amount or securities so withdrawn shall be released from the Issuer
Security provided that any amount withdrawn from the Issuer Bank
Accounts is applied in accordance with and subject to the relevant
Issuer Priority of Payments.
4. Declaration of Trust
Each of the Issuer Secured Creditors declares the Issuer Security
Trustee as trustee of, and the Issuer Security Trustee hereby declares
that it holds on trust for the Issuer Secured Creditors, upon and
subject to the terms and conditions of this Deed, all of the covenants,
undertakings and representations made to the Issuer Security Trustee
under this Deed and any other Issuer Transaction Document and all of the
charges, assignments and other Security Interests made or given to the
Issuer Security Trustee to be made or given to it for the purpose of
securing the Issuer Secured Obligations under or pursuant to this Deed
or any other Issuer Transaction Document.
5. Restrictions on Exercise of Certain Rights
5.1 Payments to Issuer Bank Accounts and Issuer Swap Collateral Accounts: At
all times prior to the release, re-assignment and/or discharge of the
Issuer Security pursuant to Clause 3 (Release of the Issuer Charged
Property), the Master Issuer shall save as otherwise provided in the
Issuer Transaction Documents or unless the Issuer Security Trustee
otherwise agrees in writing (and then only on such terms and in such
manner as the Issuer Security Trustee may require) procure that:
(a) the Issuer Bank Accounts shall from time to time be credited with
all amounts (excluding Swap Collateral) received by the Master
Issuer under or in respect of the Issuer Transaction Documents,
including without limitation the following payments:
(i) amounts received by the Master Issuer from or on behalf of
Funding 2 pursuant to the provisions of the Global
Intercompany Loan Agreement;
(ii) interest received on the Issuer Bank Accounts;
(iii) amounts received by the Master Issuer from any Issuer Swap
Provider under any Issuer Swap Agreement (excluding Swap
Collateral);
(iv) income received by the Master Issuer in respect of the
proceeds of any Authorised Investments;
(v) amounts received by the Master Issuer from the Funding 2
Security Trustee or a Receiver following the service of a
Funding 2 Intercompany Loan Enforcement Notice;
(vi) such other payments received by the Master Issuer as are, or
ought in accordance with this Deed to be, comprised in the
Issuer Charged Property;
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(vii) the proceeds of any issuance of Issuer Notes pending
application in accordance with the terms of the Global
Intercompany Loan Agreement;
(b) all Swap Collateral delivered to the Master Issuer (if any)
pursuant to any Issuer Swap Agreement will be deposited into an
Issuer Swap Collateral Account; and
(c) the Issuer Reserve Fund is deposited into the Issuer GIC Account.
5.2 No withdrawal from Issuer Bank Accounts and Issuer Swap Collateral
Accounts: At all times during the subsistence of the Issuer Security,
the Master Issuer shall not be entitled to withdraw or transfer from any
Issuer Bank Account or Issuer 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 the Issuer Transaction Documents without the Issuer Security
Trustee's prior written consent.
5.3 Permitted Withdrawals from Issuer Bank Accounts and Issuer Swap
Collateral Accounts; Authorised Investments:
(a) The Master Issuer covenants with the Issuer Security Trustee that
the amounts standing to the credit of the Issuer Bank Accounts and
any Swap Collateral standing to the credit of an Issuer Swap
Collateral Account may only be withdrawn in accordance with this
Clause 5.3 (Permitted Withdrawals from Issuer Bank Accounts and
Issuer Swap Collateral Accounts; Authorised Investments) or
otherwise with the Issuer Security Trustee's prior written
consent.
(b) On any day during an Interest Period prior to the Issuer Security
becoming enforceable pursuant to Clause 6.2 (Enforceable), the
Master Issuer and the Issuer Security Trustee hereby authorise the
Issuer Cash Manager to withdraw such monies from the Issuer
Transaction Account as are to be applied on such date to meet any
amounts then due and payable by the Master Issuer to third parties
in accordance with item (C) of the Issuer Pre-Enforcement Revenue
Priority of Payments provided that such monies are applied in
making such payments on behalf of the Master Issuer. For the
purpose of this paragraph (b), the remaining provisions of this
Clause 5.3 (Permitted Withdrawals from Issuer Bank Accounts and
Issuer Swap Collateral Accounts; Authorised Investments), Clause
5.4 (Issuer Pre-Enforcement Revenue Priority of Payments) and
Clause 5.5 (Issuer Pre-Enforcement Principal Priority of
Payments), the Issuer Cash Manager shall be entitled to assume
that the Issuer Security is not enforceable pursuant to Clause 6.2
(Enforceable) unless it has received notice from the Master Issuer
or the Issuer Security Trustee or is otherwise aware that the
Issuer Security has become so enforceable and shall not be liable
to the Issuer Security Trustee, the Master Issuer or any other
Issuer Secured Creditor for making payments based on this
assumption.
(c) The Issuer Security Trustee hereby authorises the Issuer Cash
Manager, prior to the Issuer Security becoming enforceable
pursuant to Clause 6.2 (Enforceable), to make withdrawals from:
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(i) the relevant 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
Issuer Bank Account from which they were originally drawn;
and
(ii) the relevant Issuer Swap Collateral Account for the purpose
of (1) returning Swap Collateral to an Issuer Swap Provider
pursuant to the terms of the relevant Issuer Swap Agreement;
or (2) transferring Swap Collateral to the relevant Issuer
Transaction Account pursuant to the terms of the relevant
Issuer Swap Agreement and the Issuer Cash Management
Agreement.
(d) On each Monthly Payment Date prior to the Issuer Security becoming
enforceable pursuant to clause 6.2 (Enforceable) the Issuer
Security Trustee hereby authorises the Issuer Cash Manager to
transfer from the Issuer GIC Account to the relevant Issuer
Transaction Account such amounts that are to be applied as Issuer
Available Revenue Receipts on such date in accordance with this
Deed.
5.4 Issuer Pre-Enforcement Revenue Priority of Payments: On each Monthly
Payment Date falling in a Monthly Payment Period, prior to the Issuer
Security becoming enforceable pursuant to Clause 6.2 (Enforceable), the
Issuer Security Trustee hereby authorises the Master Issuer or the
Issuer Cash Manager in its place to withdraw Issuer Available Revenue
Receipts standing to the credit of the Issuer Transaction Accounts that
have been allocated towards the payments and provisions in respect of
amounts due on that Monthly Payment Date in accordance with the rules
and the order of priority of the Issuer Pre-Enforcement Revenue Priority
of Payments and the provisions of the Issuer Cash Management Agreement
and to apply such monies to the making of such payments and provisions.
5.5 Issuer Pre-Enforcement Principal Priority of Payments: On each Monthly
Payment Date falling in a Monthly Payment Period, prior to the Issuer
Security becoming enforceable pursuant to Clause 6.2 (Enforceable), the
Issuer Security Trustee hereby authorises the Master Issuer or the
Issuer Cash Manager in its place to withdraw Issuer Available Principal
Receipts standing to the credit of the Issuer Transaction Accounts that
have been allocated towards the payments and provisions in respect of
amounts due on that Monthly Payment Date in accordance with the rules
and the order of priority of the Issuer Pre-Enforcement Principal
Priority of Payments and the provisions of the Issuer Cash Management
Agreement and to apply such monies to the making of such payments and
provisions.
5.6 Amendment to Issuer Priority of Payments: On the issuance of Issuer
Notes on any Closing Date or the making available of any Loan Tranches
by the Master Issuer to Funding 2, if any amendment to the Issuer
Priority of Payments is required as a result thereof, then, subject to
the parties to this Deed agreeing the necessary amendments to the
priority of payments, the parties to this Deed, together with any person
entering into a Deed of Accession, shall set out the new Issuer Priority
of Payments accordingly in a schedule to that Deed of Accession. The new
Issuer Priority of Payments so amended shall supersede those set out in
Schedule 2 (Issuer Priority of Payments) to this Deed.
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5.7 No Enforcement by Issuer Secured Creditors: Each of the Issuer Secured
Creditors (other than the Issuer Security Trustee and the Note Trustee
(acting on behalf of the Noteholders) and any Receiver) hereby agrees
with the Master Issuer and the Issuer Security Trustee that:
(a) only the Issuer Security Trustee may enforce the Issuer Security
in accordance with the provisions hereof;
(b) notwithstanding any other provision of this Deed or any other
Issuer Transaction Document no sum due or owing to any Issuer
Secured Creditor or to the Issuer Security Trustee (whether for
itself or on behalf of the Issuer Secured Creditors) from or by
the Master Issuer under this Deed or any other Issuer Transaction
Document shall be payable by the Master Issuer except to the
extent that the Master Issuer or (following enforcement of the
Master Issuer Security) the Issuer Security Trustee has sufficient
funds available to it (and, in the case of the Issuer Security
Trustee, as a result of the realisation of that security) to pay
such sum subject to and in accordance with the relevant Issuer
Priority of Payments and provided that all liabilities of the
Issuer required to be paid in priority thereto or pari passu
therewith pursuant to such 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 Master Issuer to the Noteholders under the
Issuer Notes, the Issuer Trust Deed and this Deed; and
(c) it shall not take any steps for the purpose of recovering any of
the Issuer Secured Obligations (including, without limitation, by
exercising any rights of set-off) or enforcing any rights arising
out of the Issuer Transaction Documents against the Master 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 Master Issuer or for the
appointment of a receiver, administrator, administrative receiver,
liquidator or similar officer of the Master 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 6.2 (Only Note Trustee to Enforce) of the
Issuer Trust Deed; and
(ii) in the case of any other Issuer Secured Creditor and subject
to there being no Issuer Note then outstanding, if the
Issuer Security Trustee having become bound to do so subject
to and in accordance with the terms of this Deed and the
Issuer Transaction Documents, fails 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 Issuer Secured Creditor shall be entitled to
take such steps and proceedings to enforce its rights
arising out of the relevant Issuer Transaction Document as
it shall deem necessary other than the presentation of a
petition or making an application for the winding up,
dissolution or reorganisation of, or the institution of
insolvency proceedings against, the Master Issuer or the
appointment of a receiver,
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an administrator, administrative receiver or liquidator of
the Master Issuer.
5.8 Acknowledgement of Issuer Security Trustee: The Issuer Security Trustee
hereby acknowledges and agrees that save with respect to the obligations
of the Master Issuer to the Noteholders under the Issuer Notes, the
Issuer Trust Deed and this Deed which are not limited under paragraph
(b) of Clause 5.7 (No Enforcement by Issuer Secured Creditors) or under
this Clause 5.8 (Acknowledgement of Issuer Security Trustee) and
notwithstanding any other provision of this Deed or any other Issuer
Transaction Document, no sum due or owing to any Issuer Secured Creditor
or to the Issuer Security Trustee (whether for itself or on behalf of
the Issuer Secured Creditors) from or by the Master Issuer under this
Deed or any other Issuer Transaction Document shall be payable by the
Master Issuer except to the extent that the Master Issuer has sufficient
funds available or (following enforcement of the Issuer Security) the
Issuer Security Trustee has realised sufficient funds from the Issuer
Security to pay such sum subject to and in accordance with the relevant
Issuer Priority of Payments and provided that all liabilities of the
Master Issuer required to be paid in priority thereto or pari passu
therewith pursuant to such Issuer Priority of Payments have been paid,
discharged and/or otherwise provided for in full.
5.9 Utilisation of Issuer Reserves: The Master Issuer and the Issuer Cash
Manager shall procure that, subject to and in accordance with the Issuer
Priority of Payments, amounts standing to the credit of the Issuer
Reserve Ledger shall only be debited for the purposes as specified in
paragraph 1 of Schedule 4 (Issuer Reserve Fund).
5.10 Adjustment of Issuer Reserves: The Issuer Reserve Minimum Amount, the
Programme Reserve Required Amount and the Programme Reserve Required
Percentage may be adjusted in accordance with paragraph 2 of Schedule 4
(Issuer Reserve Fund).
5.11 VAT: If any sums which are payable by the Master Issuer under Clause 5.4
(Issuer Pre-Enforcement Revenue Priority of Payments) or Clause 5.5
(Issuer Pre-Enforcement Principal Priority of Payments) of this Deed are
subject to VAT, the Master Issuer shall, to the extent it is not already
obliged by another clause in this Deed to make such payment of the
amount in respect of VAT, make payment of the amount in respect of VAT
to the relevant person in accordance with the order of priorities set
out in those clauses.
6. Enforcement
6.1 Notification: The Issuer Security Trustee shall, if practicable, give
prior notification to the Seller, Funding 2, the Cash Manager and the
Issuer Cash Manager of the Issuer Security Trustee's intention to
enforce the Issuer Security. However, the failure of the Issuer Security
Trustee to provide such notification shall not in any way prejudice the
ability of the Issuer Security Trustee to enforce the Issuer Security.
6.2 Enforceable:
Without prejudice to the provisions of Clause 8 (Receiver) the Issuer
Security shall become immediately enforceable and the power of sale and
other powers conferred by
11
Section 101 of the 1925 Act, as varied or amended by this Deed, shall be
exercisable by the Issuer Security Trustee:
(a) at any time following the service of an Issuer Enforcement Notice
(which has not been withdrawn);
(b) at any time following the failure to redeem a Series and Class of
Issuer Notes at the aggregate amount outstanding (together with
accrued and unpaid interest) on the date specified for such
redemption in a notice of redemption (provided that such notice is
in respect of all Issuer Notes then outstanding) served on the
Note Trustee and the Noteholders by the Master Issuer in
accordance with Conditions 5(D), 5(E) or 5(F); or
(c) if there are no Issuer Notes outstanding, following a default in
payment of any other Issuer Secured Obligations on its due date or
within any applicable grace period following such due date stated
in the relevant Issuer Transaction Document but subject always to
any limited recourse provisions stated therein and to Clause 5.7
(No Enforcement by Issuer Secured Creditors) hereof.
6.3 Power of Sale:
(a) Notwithstanding any other provision of this Deed, the Issuer
Secured Obligations shall be deemed to have become due and payable
for the purposes of Section 101 of the 1925 Act 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 Deed shall be deemed to
arise immediately after execution of this Deed.
(b) Section 103 of the 1925 Act shall not apply to this Deed and
forthwith after the Issuer Security has become enforceable in
accordance with Clause 6.2 (Enforceable) the statutory power of
sale, as extended by this Deed, and all other powers shall become
immediately exercisable without notice to the Master Issuer and
the provisions of the 1925 Act regulating the power of sale shall,
so far as they relate to the Issuer Charged Property, be varied
and extended accordingly.
6.4 Discretionary Enforcement: Subject to the provisions of this Deed, the
Issuer Security Trustee may at any time, at its discretion and without
notice, take such proceedings and/or other action as it may think fit
against, or in relation to, the Master Issuer or any other party to any
of the Issuer Transaction Documents to enforce their obligations under
any of the Issuer Transaction Documents. Subject to the provisions of
this Deed, at any time after the Issuer Security has become enforceable
in accordance with Clause 6.2 (Enforceable), the Issuer Security Trustee
may, at its discretion and without notice, take such steps as it may
think fit to enforce the Issuer Security.
6.5 Mandatory Enforcement: The Issuer Security Trustee shall not, and shall
not be bound to, take any proceedings, actions or steps under or in
connection with any of the Issuer Transaction Documents (including,
without limitation, any steps to enforce the Issuer Security) unless:
12
(a) it shall have been directed to do so by the Note Trustee acting in
accordance with the provisions of this Deed and the Issuer Trust
Deed; or
(b) if there are no Issuer Notes outstanding, it shall have been
directed to do so by the Issuer Secured Creditor which ranks
highest in the Issuer Post-Enforcement Priority of Payments,
and in either case, it shall have been indemnified and/or secured to its
satisfaction against all Liabilities to which it may become liable or
which may be incurred by it in connection therewith.
6.6 Law of Property Xxx 0000: 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 Master Issuer as if such
extensions were contained in the 1925 Act such that at any time after
the Issuer Security has become enforceable in accordance with Clause 6.2
(Enforceable) above, the Issuer Security Trustee may in its absolute
discretion:
(a) make demand in the name of the Issuer Secured Creditors or in its
own right for any monies and liabilities in respect of the Issuer
Charged Property;
(b) enforce any rights it may have in respect of the whole or any part
of the Issuer Charged Property in such manner and upon such terms
as the Issuer Security Trustee shall think fit;
(c) take possession of, get in and collect the Issuer Charged Property
and perfect interests comprised therein;
(d) (subject to any restrictions under or in respect of the relevant
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 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 Issuer Secured
Creditor);
(e) carry out any transaction, scheme or arrangement which the Issuer
Security Trustee may, in its absolute discretion, consider
appropriate with a view to or in connection with the sale of the
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 8.6 (Powers of the Receiver) or
otherwise under this Deed; and/or
(g) exercise all or any of the powers conferred on mortgagees by the
1925 Act as varied or extended by this Deed and any other rights
and remedies that may be conferred by statute or common law or in
equity on mortgagees or receivers.
6.7 Authorised Investments: Any monies which under the trusts of this Deed
ought to or may be invested by the Issuer Security Trustee (or the
Issuer Cash Manager on its behalf) after the Issuer Security has become
enforceable in accordance with Clause
13
6.2 (Enforceable) may be invested in the name or under the control of
the Issuer Security Trustee in any Authorised Investments and the Issuer
Security Trustee may at any time vary or transfer (or direct the Cash
Manager to vary or transfer) any of such Authorised Investments for or
into other such Authorised Investments as the Issuer Security Trustee in
its absolute discretion may determine, and shall not be responsible for
any loss occasioned by reason of any such investments whether by
depreciation in value or otherwise, provided that such Authorised
Investments were made in accordance with the foregoing provisions. If a
bank or institution with which any monies placed on deposit in
accordance with this clause is the Issuer Security Trustee or a
subsidiary, holding or associated company of the Issuer Security
Trustee, it need only account for an amount of interest equal to the
amount of interest which would, at then current rates, be payable by it
on such a deposit to an independent customer.
7. Upon Enforcement
7.1 Service of an Issuer Enforcement Notice: Without prejudice to the
effectiveness of any service of an Issuer Enforcement Notice, in the
event that an Issuer Enforcement Notice has been served (and not
withdrawn) by the Note Trustee on the Master Issuer and the Issuer
Security Trustee or the Issuer Security has otherwise become
enforceable, the Issuer Security Trustee shall as soon as is practicable
notify each of the following parties of the enforcement of the Issuer
Security (whether by service of a copy of any Issuer Enforcement Notice
or otherwise):
(a) the Seller;
(b) Funding 2;
(c) the Account Bank, the Cash Manager and the Issuer Cash Manager;
(d) the Paying Agents and the other Agents under the Issuer Paying
Agent and Agent Bank Agreement;
(e) any Issuer Swap Provider;
(f) the Corporate Services Provider; and
(g) each other Issuer Secured Creditor.
7.2 Crystallisation: From and including the date when the Note Trustee
serves an Issuer Enforcement Notice (which has not been withdrawn) on
the Master Issuer or the Issuer Security has otherwise become
enforceable:
(a) notwithstanding any provision hereof or of any other Issuer
Transaction Document no amount may be withdrawn from the Issuer
Bank Accounts except with the prior written consent of the Issuer
Security Trustee; and
(b) if not already crystallised, but subject to any prohibition or
restriction imposed by law, any charge created by this Deed which
is a floating charge shall crystallise, provided that the floating
charge created by this Deed shall not be crystallised solely as a
result of obtaining a moratorium (or anything done with
14
a view to obtaining a moratorium) under the Insolvency Xxx 0000
except with leave of the court.
7.3 Issuer Post-Enforcement Priority of Payments: At any time after the
Issuer Security has become enforceable in accordance with Clause 6.2
(Enforceable) and (if applicable) provided that the Issuer Enforcement
Notice has not been withdrawn, the relevant Issuer Available Revenue
Receipts, Issuer Available Principal Receipts and all other monies
(excluding Swap Collateral standing to the credit of the Issuer Swap
Collateral Accounts) paid to or received or recovered by or on behalf of
the Master Issuer or the Issuer Security Trustee or any Receiver
appointed on its behalf, including all proceeds following any sale,
realisation of the Issuer Charged Property or other enforcement of the
Issuer Security and all amounts (excluding Swap Collateral standing to
the credit of the Issuer Swap Collateral Accounts) not previously
distributed and/or standing to the credit of any Issuer Bank Account
shall (if not already received by the Issuer Security Trustee) be paid
to and held by the Issuer Security Trustee on trust to apply the same on
each Monthly Payment Date falling in a Monthly Payment Period (save to
the extent otherwise required by applicable law) in accordance with the
order of priority of the Issuer Post-Enforcement Priority of Payments
and subject to the other rules set out in Schedule 2.
7.4 Certification of Amounts:
(a) The Issuer Security Trustee shall be entitled to rely on (and to
accept as conclusive evidence save in the case of manifest error)
a certificate from each Issuer Secured Creditor as to the amounts
owed to such Issuer Secured Creditor under the Issuer Transaction
Documents. The Issuer Security Trustee shall not take into account
for the purpose of the application of moneys in accordance with
the 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 Issuer Secured Creditor will, at all times, promptly provide
the Issuer Security Trustee and/or any Receiver on request with a
certificate setting out detailed information as to the amount of
the Issuer Secured Obligations to which such Issuer Secured
Creditor is entitled and such other information as the Issuer
Security Trustee and/or any Receiver may require to enable or
facilitate the Issuer Security Trustee and/or any Receiver to
perform its functions hereunder or under any of the Issuer
Transaction Documents, such certificate to be in a form required
by the Issuer Security Trustee and/or any Receiver. In determining
the respective entitlements of the Issuer Secured Creditors
hereunder, such certificates shall be binding on all of the Issuer
Secured Creditors.
7.5 Retention Account: If the Issuer Security Trustee enforces the Issuer
Security at a time when either no amounts or not all amounts owing in
respect of the Issuer Secured Obligations have become due and payable or
any of the Issuer Secured Obligations are at such time contingent or
future, the Issuer Security 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 Issuer Secured Obligations are at such time contingent or future,
pay any monies referred to in Clause 7.3 (Issuer Post-Enforcement
Priority of Payments), as the case may be, into, and retain such monies
in, an interest-bearing
15
account (a "retention account") to be held by it as security and applied
by it in accordance with Clause 7.3 (Issuer Post-Enforcement Priority of
Payments) as and when any of the amounts referred to therein become due
and payable.
7.6 Issuer Security Trustee Rights upon Enforcement: In addition to any
other rights expressly provided herein, for the period commencing upon
the service of an Issuer Enforcement Notice and terminating upon the
notification to the Issuer Secured Creditors by the Issuer Security
Trustee that all Issuer Secured Obligations have been satisfied in full
or that such Issuer Enforcement Notice has been withdrawn:
(a) (provided such Issuer Secured Creditor has received a copy of, or
other notice of the service on the Master Issuer of, any such
Issuer Enforcement Notice) each Issuer Secured Creditor agrees
that it will pay to the Issuer Security Trustee or the Receiver,
as the case may be, all monies received or recovered by such
Issuer Secured Creditor (whether by way of set-off or otherwise)
in order that such amounts may be applied by the Issuer Security
Trustee in accordance with Clause 7.3 (Issuer Post-Enforcement
Priority of Payments);
(b) save as otherwise expressly provided in this Deed or as required
by the Issuer Security Trustee, all payments under or arising from
this Deed and all amounts payable to the Master Issuer by any
party to this Deed under any Issuer Transaction Document shall be
paid to the Issuer Security Trustee or to its order;
(c) save as otherwise expressly provided in this Deed, all rights or
remedies provided for by this Deed or available at law or in
equity to the Issuer Secured Creditors are exercisable by the
Issuer Security Trustee;
(d) save as otherwise expressly provided in this Deed, all rights to
compel performance of the Issuer Transaction Documents are
exercisable by the Issuer Security Trustee; and
(e) all payments in respect of the Issuer Secured Obligations shall
operate in satisfaction pro tanto of the Master Issuer's covenants
to the relevant Issuer Secured Creditors.
7.7 Swap Collateral: Notwithstanding the foregoing provisions of this Clause
7 (Upon Enforcement), at any time after the Issuer Security has become
enforceable in accordance with Clause 6.2 (Enforceable) and provided
that an Issuer Enforcement Notice has not been withdrawn:
(a) all Swap Collateral delivered to or received or recovered by or on
behalf of the Master Issuer or the Issuer Security Trustee or any
Receiver appointed on its behalf pursuant to any Issuer Swap
Agreement will be deposited into an Issuer Swap Collateral
Account; and
(b) Swap Collateral may only be withdrawn from the relevant Issuer
Swap Collateral Account for the purpose of (A) returning Swap
Collateral to an Issuer Swap Provider pursuant to the terms of the
applicable Issuer Swap Agreement or (B) applying Swap Collateral
in or towards satisfaction of such
16
Issuer Swap Provider's obligations under the applicable Issuer
Swap Agreement.
7.8 Sub-Ledger Balances: Notwithstanding the other provisions of this Deed:
(a) prior to the enforcement of the Issuer Security, any amount
credited to or standing to the credit of any sub-ledger to the
Issuer Revenue Ledger and/or the Issuer Principal Ledger in
respect of a Series and Class of Issuer Notes shall be held on
trust by the Master Issuer and the Issuer Security Trustee for the
Noteholders of such Issuer Notes and may only be applied:
(i) in relation to amounts credited to or standing to the credit
of the sub-ledger to the Issuer Revenue Ledger for such
Issuer Notes, subject to and in accordance with the Issuer
Pre-Enforcement Revenue Priority of Payments and the rules
for relating to the maintenance of such ledgers set out in
paragraph 6 of Schedule 2 (Cash Management and Maintenance
of Ledgers) to the Issuer Cash Management Agreement;
(ii) in relation to amounts credited to or standing to the credit
of the sub-ledger to the Issuer Principal Ledger for such
Issuer Notes, subject to and in accordance with the Issuer
Pre-Enforcement Principal Priority of Payments and the rules
for relating to the maintenance of such ledgers set out in
paragraph 7 of Schedule 2 (Cash Management and Maintenance
of Ledgers) to the Issuer Cash Management Agreement; and
(b) following the enforcement of the Issuer Security, any amount
credited to or standing to the credit of the sub-ledger to the
Issuer Revenue Ledger and/or the Issuer Principal Ledger for such
Issuer Notes on the date that the Issuer Security is enforced
shall be held on trust by the Master Issuer and the Issuer
Security Trustee for the Noteholders of such Issuer Notes and may
only be applied to pay the interest, principal and other amounts
due in respect of such Issuer Notes or any shortfall in the
amounts available to pay items (A) to (C) under the Issuer
Post-Enforcement Priority of Payments and, unless and until such
interest, principal and other amounts due in respect of such
Issuer Notes are paid in full, may not be applied in payment of
interest, principal and other amounts due in respect of any other
Notes or any other amounts then due and payable by the Master
Issuer.
7.9 Swap Replacement Premium: Notwithstanding the foregoing provisions of
Clause 6 (Enforcement) and this Clause 7 (Upon Enforcement), any Swap
Replacement Premium received by the Master Issuer from a replacement
Swap Provider upon entry into a swap agreement replacing an Issuer Swap
Agreement shall firstly be applied in payment of any termination payment
due and payable to the Issuer Swap Provider following the termination of
the Issuer Swap Agreement. Any amount of such Swap Replacement Premium
not applied in or towards payment of such termination payment will form
part of Issuer Available Revenue Receipts.
17
8. Receiver
8.1 Appointment: At any time after the Issuer Security constituted hereunder
becomes enforceable, and whether or not the Issuer Security Trustee has
taken possession of the Issuer Charged Property, the Issuer Security
Trustee may, in addition to all statutory and other powers of
appointment or otherwise, appoint, by writing or by deed, such person or
persons (including an officer or officers of the Issuer Security
Trustee) as the Issuer Security Trustee thinks fit to be a receiver, a
receiver and manager or an administrative receiver of the 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.
8.2 Removal and Replacement: Except as otherwise required by statute, the
Issuer Security Trustee may by writing or by deed remove a Receiver
appointed by it whether or not appointing another in its place and may
also appoint another Receiver or to act with any other Receiver or to
replace any Receiver who resigns, retires or otherwise ceases to hold
office.
8.3 Extension of Appointment: The exclusion of any part of the Issuer
Charged Property from the appointment of the Receiver shall not preclude
the Issuer Security Trustee from subsequently extending its appointment
(or that of the Receiver replacing it) to that part of the Issuer
Charged Property or appointing another Receiver over any other part of
the Issuer Charged Property.
8.4 Agent of Master Issuer: The Receiver shall, so far as the law permits,
be the agent of the Master Issuer and (subject to any restriction or
limitation imposed by law) the Master 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 Issuer Security Trustee or any 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 Master Issuer shall be
appointed, the Receiver shall act as principal and not as agent for the
Issuer Security 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 Issuer Security Trustee.
8.5 Remuneration: Subject as provided otherwise by applicable law, the
remuneration of the Receiver shall be fixed by the Issuer Security
Trustee and may be or include a commission calculated by reference to
the gross amount of all monies received or otherwise. Such remuneration
(and such commission (if any)) shall be payable hereunder by the Master
Issuer alone subject always to Clause 7.3 (Issuer Post-Enforcement
Priority of Payments) and the amount of such remuneration shall form
part of the Issuer Secured Obligations and shall accordingly be secured
by the Issuer Security.
8.6 Powers of the Receiver: The Receiver of the Master 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:
(a) take possession of, get in and collect the Issuer Charged
Property;
18
(b) (subject to any restrictions under or in respect of relevant
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 Issuer Charged Property or any interest therein and grant
or accept surrenders, disclaimers and variations in relation to or
otherwise affecting the 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 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 Issuer Charged Property;
(d) insure the 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 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 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 Issuer Security Trustee or
any other party to the Issuer Transaction Documents) and to form a
subsidiary or subsidiaries of the Master 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 Master 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 Master Issuer is a
party;
(h) sell or concur in selling the whole or any part of the Master
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 Master 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 Issuer Charged Property (either
in priority to the Issuer Security 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 Issuer Charged Property or the Issuer
Security;
19
(l) exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Issuer Charged
Property or incidental to the ownership of or rights in or to any
of the Issuer Charged Property and to complete or effect any
transaction entered into by the Master Issuer or disclaim, abandon
or modify all or any of the outstanding contracts or arrangements
of the Master Issuer relating to or affecting the 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 Issuer Charged Property which it
may consider expedient as effectual as if it were solely and
absolutely entitled to the 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 Master 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 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 8 (Receivers) or otherwise in
respect of the 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 7.3
(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
Schedule 1 (and where applicable Schedule 2) of the Insolvency Xxx
0000.
8.7 Security: The Issuer Security Trustee may from time to time and at any
time require any such Receiver to give security for the due performance
of its duties and may fix the nature and amount of the security to be so
given but the Issuer Security Trustee shall not be bound in any such
case to require any such security.
8.8 Application by Receiver: Save so far as otherwise directed by the Issuer
Security Trustee, all monies from time to time received by such Receiver
shall be paid over to the Issuer Security Trustee to be held by it on
the trusts declared under this Deed and to be distributed in accordance
with Clause 7.3 (Issuer Post-Enforcement Priority of Payments).
8.9 Payment to Receiver: The Issuer Security Trustee may pay over to such
Receiver any monies constituting part of the Issuer Charged Property for
the same to be applied for
20
the purposes of this Deed by such Receiver and the Issuer Security
Trustee may from time to time determine what funds the Receiver shall be
at liberty to keep in hand with a view to the performance of its duties
as such Receiver.
8.10 No Restrictions: None of the restrictions imposed by the 1925 Act in
relation to the appointment of receivers or the giving of notice or
otherwise shall apply in relation to the Receiver.
8.11 Appointment of Administrator:
(a) Subject to any relevant provisions of the Insolvency Xxx 0000, the
Issuer Security Trustee may, by any instrument or deed of
appointment, appoint one or more persons to be the administrator
of the Master Issuer at any time after:
(i) the service of an Issuer Enforcement Notice; or
(ii) being requested to do so by the Master Issuer; or
(iii) any application having been made to the court for an
administration order under the Insolvency Xxx 0000; or
(iv) any person having ceased to be an administrator as a result
of any event specified in paragraph 90 of Schedule B1 to the
Insolvency Xxx 0000; or
(v) any notice of intention to appoint an administrator having
been given by any person or persons entitled to make such
appointment under the Insolvency Xxx 0000.
(b) Where any such appointment is made at a time when an administrator
continues in office, the administrator shall act either jointly or
concurrently with the administrator previously appointed
hereunder, as the appointment specifies.
(c) Subject to any applicable order of the court, the Issuer Security
Trustee may replace any administrator, or seek an order replacing
the administrator, in any manner allowed by the Insolvency Xxx
0000.
(d) Where the administrator was appointed by the Issuer Security
Trustee under paragraph 14 of Schedule B1 to the Insolvency Xxx
0000, the Issuer Security Trustee may, by notice in writing to the
Master Issuer, replace the administrator in accordance with
paragraph 92 of Schedule B1 to the Insolvency Xxx 0000.
(e) Every such appointment shall take effect at the time and in the
manner specified by the Insolvency Xxx 0000.
(f) If at any time and by virtue of any such appointment(s) any two or
more persons shall hold office as administrators of the same
assets or income, such administrators may act jointly or
concurrently as the appointment specifies so that, if appointed to
act concurrently, each one of such administrators shall be
entitled (unless the contrary shall be stated in any of the
deed(s) or other
21
instrument(s) appointing them) to exercise all the functions
conferred on an administrator by the Insolvency Xxx 0000.
(g) Every administrator shall have all the powers of an administrator
under the Insolvency Xxx 0000.
(h) In exercising his functions hereunder and under the Insolvency Xxx
0000, the administrator acts as agent of the Master Issuer and
does not act as agent of the Issuer Security Trustee.
(i) Every administrator shall be entitled to remuneration for his
services in the manner fixed by or pursuant to the Insolvency Xxx
0000 or the Insolvency Rules 1986.
8.12 Administration:
(a) Upon application being made to a court of competent jurisdiction
for an administration order or the service of 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 Master Issuer or other order having substantially the same
effect to be made on application by a creditor or creditors of the
Master Issuer, the Issuer Security Trustee shall, (except in the
circumstances where the Issuer Security Trustee has taken steps to
appoint an administrator in accordance with Clause 8.11
(Appointment of an Administrator)), subject to it being
indemnified and/or secured to its satisfaction, as soon as
practicable appoint a Receiver in accordance with this Deed (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 Issuer Charged Property and, in the case of any
application to the court or petition the Issuer Security 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 Issuer Secured
Creditors shall co-operate and do all acts and enter into such
further documents, deeds or agreements as the Issuer Security
Trustee may deem necessary or desirable to ensure that an
administration order is not made or that an administrator is not
otherwise appointed 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.
9. Further Assurance and Power of Attorney
9.1 Further Assurance: The Master Issuer covenants with and undertakes to
the Issuer Security Trustee from time to time (notwithstanding that the
security may not have become enforceable and/or the Note Trustee may not
have served any Issuer Enforcement Notice) upon demand:
(a) to execute, at the Master Issuer's cost, any document or do any
act or thing which the Issuer Security Trustee or any Receiver may
specify (including executing such Security Interests over its
rights in and over the Issuer Charged
22
Property and any other assets of the Master Issuer in such form as
the Issuer Security Trustee and/or any Receiver may require) with
a view to:
(i) registering, perfecting, protecting or improving any charge
or security or Security Interest created or intended to be
created by or pursuant to this Deed (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 Issuer Security Trustee
security over such property and assets equivalent or similar
to the security intended to be conferred by or pursuant to
this Deed) and in such form as the Issuer Security Trustee
or the Receiver may specify; and/or
(ii) facilitating the realisation of or enforcement of rights of,
all or any part of the Issuer Charged Property or the
exercise, or proposed exercise, of any of the powers, duties
or discretions vested or intended to be vested in the Issuer
Security Trustee or such Receiver by or pursuant to this
Deed or doing any act or thing deemed necessary by the
Issuer Security 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 Issuer Security Trustee or the Receiver may
require at the cost of the Master Issuer,
and for the purpose of this Clause 9.1 (Further Assurance) a certificate
in writing signed by the Issuer Security Trustee to the effect that any
particular assurance or thing is required by it shall be conclusive
evidence of that fact provided that the Master 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 (save where the other parties hereto agree to
such breach) or conflict with any applicable law.
9.2 Execution of Power of Attorney: Immediately upon execution of this Deed,
the Master Issuer shall execute and deliver to the Issuer Security
Trustee the power of attorney in or substantially in the form set out in
Schedule 1 (Form of Security Power of Attorney).
9.3 Issuer Charged Property on Trust: To the extent permitted to do so under
the Issuer Transaction Documents, for the purpose of giving effect to
this Deed, the Master Issuer hereby declares that, after service of an
Issuer Enforcement Notice, it will hold all the Issuer Charged Property
(subject to the right of redemption) upon trust to convey, assign or
otherwise deal with such Issuer Charged Property in such manner and to
such person as the Issuer Security Trustee shall direct pursuant to this
Deed, and declares that it shall be lawful for the Issuer Security
Trustee to appoint a new trustee or trustees of the Issuer Charged
Property in place of the Master Issuer.
10. Crystallisation
10.1 Notice: In addition and without prejudice to any other event resulting
in a crystallisation of the floating charge created by this Deed or any
other right the Issuer
23
Security Trustee may have, but subject to any prohibition or restriction
imposed by law, the Issuer Security Trustee may, by notice in writing to
the Master Issuer, declare that the floating charge hereby created shall
be converted into first specific fixed charges over such of the
undertaking, property and assets of the Master Issuer as the Issuer
Security Trustee may specify in such notice at any time if:
(a) a Note Event of Default or a Potential Note Event of Default has
occurred; or
(b) the Issuer Security Trustee believes that the 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 Issuer Security Trustee considers that it is desirable in
order to protect the priority of the security created by this
Deed,
provided that the floating charge created by this Deed may not be
converted into a fixed charge or charges 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 except with
the leave of the court.
10.2 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, but subject to any prohibition or restriction imposed
by applicable law, the floating charge created under this Deed shall
automatically and without notice be converted with immediate effect into
a fixed charge as regards:
(a) all property, assets or undertaking of the Master Issuer subject
to the floating charge, upon:
(i) the Master Issuer ceasing to carry on its business or a
material part thereof as a going concern;
(ii) the presentation of a petition for or the making of an
application for the compulsory winding-up of the Master
Issuer;
(iii) the convening of a meeting for the passing of a resolution
for the voluntary winding-up of the Master Issuer;
(iv) the making of an application for an administration order or
the filing of documents with the court for the appointment
of an administrator or the service of a notice of intention
to appoint an administrator in relation to the Master
Issuer;
(v) 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 Master
Issuer subject to the floating charge;
(vi) the occurrence of a Note Event of Default or, if there are
no Issuer Notes outstanding, following a default in payment
of any other Issuer Secured Obligations on its due date or
within any applicable grace
24
period following such due date stated in the relevant Issuer
Transaction Document; and/or
(b) any property, assets or undertaking of the Master Issuer, which
become subject to an Encumbrance in favour of any person other
than the Issuer Security Trustee or which is/are the subject of a
sale, transfer or other disposition, in either case, contrary to
the covenants and undertakings contained in the Issuer Transaction
Documents, immediately prior to such Encumbrance arising or such
sale, transfer or other disposition being made,
provided that the floating charge created by this Deed may not be
converted into a fixed charge or charges 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 except with the leave of the
court.
11. Provisions relating to the Security
11.1 Continuing Security: The Issuer Security 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
Issuer Secured Creditors or the Issuer Security Trustee on their
behalf in respect of the whole or any part of the 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 Issuer Secured Obligations and shall
remain in force as continuing security for the 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 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.
11.2 Consolidation: Section 93 of the 1925 Act shall not apply in relation to
any of the Issuer Security.
11.3 Ruling Off: If the Issuer Security Trustee receives notice of any
Encumbrance affecting the whole or any part of the Issuer Charged
Property or any security granted hereunder in contravention of the
provisions hereof:
(a) the Issuer Security Trustee may open a new account in the name of
the Master 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 Master Issuer to the Issuer Security
Trustee after the Issuer Security Trustee receives such notice
shall be credited or deemed to have been credited to the new
account, and in no circumstances whatsoever shall operate to
reduce the Issuer Secured Obligations as at the time the Issuer
Security Trustee received such notice.
11.4 Avoidance of Payments: Any settlement, discharge or release between (a)
the Master Issuer and (b) the Issuer Security Trustee or any Receiver
(the "Relevant Person(s)")
25
shall be conditional upon no security or payment granted or made to the
Relevant Person(s) by the Master 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 Master Issuer and from the security
subsequently as if such settlement, discharge or release had not
occurred.
11.5 Retention of Charges: If the Issuer Security Trustee shall have
reasonable grounds for believing that the Master 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 Master Issuer shall be prima facie evidence of the
solvency of the Master Issuer) as at the date of any payment made by the
Master Issuer to the Issuer Security Trustee and that as a result, such
payment may be capable of being avoided or clawed back, the Issuer
Security Trustee shall be at liberty to retain the charges contained in
or created pursuant to this Deed until the expiry of a period of one
month plus such statutory period within which any assurance, security,
guarantee or payment can be avoided or invalidated after the payment and
discharge in full of all Issuer Secured Obligations notwithstanding any
release, settlement, discharge or arrangement which may be given or made
by the Issuer Security Trustee on, or as a consequence of, such payment
or discharge of liability provided that, if at any time within such
period, a petition or an application 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 Master Issuer, or if the Master Issuer shall
commence to be wound up or to go into administration or any analogous
proceedings shall be commenced by or against the Master Issuer, as the
case may be, the Issuer Security Trustee shall be at liberty to continue
to retain such security for such further period as the Issuer Security
Trustee may determine and such security shall be deemed to continue to
have been held as security for the payment and discharge to the Issuer
Security Trustee of all Issuer Secured Obligations.
11.6 Possession: Entry into possession of the Issuer Charged Property or any
part thereof shall not render the Issuer Security Trustee or any
Receiver of the Master Issuer liable to account as mortgagee or creditor
in possession for anything except actual receipts. If and whenever the
Issuer Security Trustee or the Receiver enters into possession of the
Issuer Charged Property, it shall be entitled at any time to go out of
such possession.
11.7 Change of Name, etc.: This Deed shall remain valid and enforceable
notwithstanding any change in the name, composition or constitution of
the Issuer Security Trustee or the Master Issuer or any amalgamation,
merger or consolidation by the Issuer Security Trustee or the Master
Issuer, with any other corporation (whether, in the case of the Master
Issuer, permitted under the Issuer Transaction Documents or not).
12. Protection of Third Parties
12.1 No Enquiry: No purchaser from, or other person dealing with, the Issuer
Security Trustee or a Receiver shall be concerned to enquire whether any
of the powers exercised or purported to be exercised under this Deed has
arisen or become exercisable, whether the Issuer Secured Obligations
remain outstanding or have become payable, whether the Issuer Security
Trustee or the Receiver is authorised to
26
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 Issuer Security Trustee or any such
Receiver.
12.2 Receipts to Current Parties: Upon any sale, calling in, collection,
enforcement or other realisation of the Issuer Charged Property in
accordance with the terms hereof and upon any other dealing or
transaction under or pursuant to this Deed, the receipt of the Issuer
Security Trustee or any Receiver shall be an absolute and a conclusive
discharge to a purchaser or other person dealing with the Issuer
Security Trustee or such Receiver and shall relieve it of any obligation
to see to the application of any monies paid to or by the direction of
the Issuer Security Trustee or such Receiver.
13. Set-Off
The Issuer Security Trustee may at any time after the security created
under this Deed has become enforceable in accordance with Clause 6.2
(Enforceable) without notice and notwithstanding any settlement of
account or other matter whatsoever combine or consolidate all or any
existing accounts of the Master Issuer whether in its own name or
jointly with others and held by it or any 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 Master Issuer from the Issuer Security Trustee or relevant
Issuer Secured Creditor and whether or not the credit balance and the
account in debit or the Issuer Secured Obligations are expressed in the
same currency in which case the Issuer Security Trustee is hereby
authorised to effect any necessary conversions at its prevailing rates
of exchange) in or towards satisfaction of any of the Issuer Secured
Obligations (and on or at any time after the Issuer Security has become
enforceable in accordance with Clause 6.2 (Enforceable) the Issuer
Security Trustee may make such application notwithstanding any specified
maturity of any deposits), but subject always to the Issuer Priority of
Payments, and may in its absolute discretion estimate the amount of any
liability of the Master Issuer which is contingent or unascertained and
thereafter set-off such estimated amount and no amount shall be payable
by the Issuer Security Trustee to the Master Issuer unless and until all
the Issuer Secured Obligations have been ascertained and fully repaid or
discharged.
14. Representations and Covenants
14.1 Representations and Warranties:
(a) The Master Issuer hereby represents to the Issuer Security Trustee
that it is, as of the date hereof, the beneficial owner of all of
the Issuer Charged Property free and clear of all liens, claims,
charges or Encumbrances except for the Issuer Security and
undertakes that it will retain all rights associated with
ownership of the Issuer Charged Property free and clear of all
liens, claims, charges, Encumbrances except for the Issuer
Security.
27
(b) The Master Issuer represents that it has taken all necessary steps
to enable it to create the Issuer Security in respect of the
Issuer Charged Property in accordance with this Deed and has taken
no action or steps which will or may prejudice its right, title
and interest in, to and under the Issuer Charged Property.
(c) The Master Issuer represents that its Centre of Main Interests (as
defined in the EU Regulation) is in the United Kingdom.
14.2 Negative Covenants: The Master Issuer hereby undertakes that, for so
long as any Issuer Secured Obligation remains outstanding, the Master
Issuer shall not, save to the extent contemplated or provided in the
Issuer Transaction Documents or unless it has obtained the prior written
consent of the Issuer Security Trustee:
(a) open or maintain any bank account or deposit account with any bank
or any other financial institution other than the Issuer Bank
Accounts or the Issuer Swap Collateral Accounts or close the
Issuer Bank Accounts or the Issuer Swap Collateral 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 provided that on the issuance of Issuer Notes on any
Closing Date, the making available of any Loan Tranches by the
Master Issuer to Funding 2 or if any new Funding 2 Intercompany
Loans are made available by a new Funding 2 Issuer to Funding 2 in
accordance with the terms of the Transaction Documents, the Master
Issuer shall be entitled to create the Security Interests (if any)
contemplated under the applicable Deed of Accession;
(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) make or consent to any amendment to, or variation of or agree to
waive or authorise any breach of, any provision of any of the
Issuer Transaction Documents or permit any person whose
obligations form part of the 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
28
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
Master Issuer resident in any jurisdiction other than the United
Kingdom;
(j) permit any person other than the Master Issuer and the Issuer
Security 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
Issuer Notes);
(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 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;
(m) establish any branches or other establishments (being any place of
operations where a company carries on non-transitory economic
activity with human means and goods as defined in Article 2(h) of
the EU Insolvency Regulation) in any jurisdiction other than in
England and shall procure that its management, the place at which
the meetings of its directors are held and the place where the
interests of the Master Issuer are administered on a regular
basis, is England;
(n) hold shares or possess voting power in or in relation to any
company, or possess any power to secure, by virtue of any powers
conferred by the articles of association or other document
regulating any company, control over any company; or
(o) have any employees.
14.3 Positive covenants: The Master Issuer covenants and undertakes with the
Issuer Security Trustee for the benefit of the 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 Deed and the required fee within 21 days
after the date of this Deed;
(b) Notice of Assignment: on the date hereof join with the Issuer
Security Trustee in giving notice of the assignments and the
security created under or pursuant to this Deed to Funding 2, the
Funding 2 Security Trustee and each other party to any Issuer
Transaction Document not being a party to this Deed and on any
date hereafter (to the extent only that such notice and
acknowledgement is not given under or pursuant to this Deed) join
with the Issuer Security Trustee in giving notice of the
assignments and the security created under this Deed to any party
to an Issuer Transaction Document entered into by the Master
Issuer
29
after the date hereof in each case in the form (or substantially
in the form) set out in Schedule 3 (Form of Notice of Assignment);
(c) Accounts: cause to be prepared and certified by the Auditors of
the Master 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 Issuer Notes are listed
and, in particular, cause to be prepared and certified by the
auditors in respect of each of its financial years, accounts which
are in accordance with a basis of accounting that satisfies the
definition of "UK generally accepted accounting practice"
contained in sub-section 50(4) of the Finance Xxx 0000;
(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
Master Issuer to be prepared and allow the Issuer Security Trustee
and any person or persons appointed by the Issuer Security 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 Deed and any
information so obtained shall only be used and passed on to any
other person for the purpose of the Issuer Security Trustee
carrying out its duties under this Deed;
(e) Notice of Note Event of Default: give notice in writing to the
Issuer Security Trustee forthwith upon becoming aware of the
occurrence of any Note Event of Default or Potential Note Event of
Default including the status of any such default or matter and
what action the Master Issuer is taking or proposes to take with
respect thereto, without waiting for the Issuer Security Trustee
to take any action;
(f) Administration: immediately on receipt or notice of the same
supply the Issuer Security Trustee full details of any application
to the court for an administration order under paragraph 10 of
Schedule B1 of the Insolvency Act made in respect of the Master
Issuer and (without prejudice to paragraph 12(2) of Schedule B1 to
the Insolvency Act) of any actual or proposed appointment of an
administrator by the holder of a qualifying floating charge
(within the meaning of paragraph 14 of Schedule B1 to the
Insolvency Act) or (without prejudice to paragraph 26(1) of
Schedule B1 to the Insolvency Act) by the Master Issuer or its
directors.
(g) Certificates Relating to Financial Information: give to the Issuer
Security Trustee (a) within seven days after demand by the Issuer
Security 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 Master 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
30
certificate the date hereof) any Note Event of Default or any
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 Master
Issuer has complied with all its obligations contained in this
Deed and each of the other Issuer Transaction Documents or (if
such is not the case) specifying the respects in which it has not
so complied;
(h) 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 Issuer Security Trustee to give effect to this Deed
and the other Issuer Transaction Documents;
(i) Compliance with Issuer Transaction Documents: observe and comply
with its obligations and use its reasonable endeavours to procure
that each other party to any of the Issuer Transaction Documents
complies with and performs all its respective obligations under
each Issuer Transaction Document and notify the Issuer Security
Trustee forthwith upon becoming aware of any breach by any such
other party to any Issuer Transaction Document;
(j) Information: so far as permitted by applicable law, give or
procure to be given to the Issuer Security 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 Master Issuer of all such certificates called
for by the Issuer Security Trustee pursuant to this Deed) for the
purpose of the discharge or exercise of the duties, trusts,
powers, authorities and discretions vested in it under this Deed
or by operation of law;
(k) Taxes: duly and promptly pay and discharge all Taxes imposed upon
it or its assets unless such Taxes are, in the opinion of the
Issuer Security Trustee, being contested in good faith by the
Master Issuer;
(l) Swap Transactions: treat each Issuer Swap Transaction in its
accounts as a "derivative financial instrument" for the purposes
of Financial Reporting Standard 13 (as from time to time amended)
and any replacement of it following the convergence of UK GAAP and
IFRS;
(m) Issuer Swap Agreements: in the event of termination of any
Transaction (as defined in an Issuer Swap Agreement) under an
Issuer Swap Agreement, notify the Security Trustee and the Rating
Agencies and use its best efforts to enter into a replacement of
that Transaction upon terms acceptable to the Rating Agencies and
the Issuer Security Trustee with an Issuer Swap provider whom the
Rating Agencies have previously confirmed in writing to the Master
Issuer and the Issuer Security Trustee will not cause the
then-current ratings of the Issuer Notes to be downgraded,
withdrawn or qualified;
(n) Bank Accounts: in the event of termination of the Issuer Bank
Account Agreement, subject to and in accordance with the
provisions of the Issuer Bank Account Agreement use its reasonable
endeavours to enter into a replacement bank account agreement;
31
(o) Cash Management Agreement: in the event of termination of the
Issuer Cash Management Agreement, subject to and in accordance
with the provisions of the Issuer Cash Management Agreement, use
its reasonable endeavours to enter into a replacement cash
management agreement;
(p) Centre of Main Interests: the Master Issuer shall have its Centre
of Main Interests (as defined in the EU Regulation) in the UK; and
(q) Separate Issuer Swap Transactions: the Master Issuer shall, where
an Issuer Swap is required in relation to a Series and Class of
Notes, enter into an Issuer Swap Agreement which is separate and
distinct from each other Issuer Swap Agreement to which the Master
Issuer is then a party;
In addition to the foregoing, the Master Issuer hereby covenants with
each of the Issuer Swap Providers, that it shall not make any amendment
or modification to, or exercise any waiver in respect of, the Issuer
Cash Management Agreement which would be adversely prejudicial to the
interests of any Issuer Swap Provider, without the prior written consent
of the affected Issuer Swap Provider save that to the extent required,
such consent shall not be unreasonably withheld or delayed.
15. Supplement to Trustee Acts
15.1 Section 1 of the Trustees Act 2000 shall not apply to the duties of the
Issuer Security Trustee in relation to the trusts constituted by this
Deed. Where there are any inconsistencies between the Trustee Acts and
the provisions of this Deed, the provisions of this Deed shall, to the
extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee Xxx 0000, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that
Act. The Issuer Security Trustee shall have all the powers conferred
upon trustees by the Trustee Acts and by way of supplement thereto it is
expressly declared as set out in the remaining provisions of this Clause
15 (Supplement to Trustee Acts).
15.2 Reliance on Information:
(a) The Issuer Security Trustee may in relation to this Deed or any
other Issuer Transaction Document act and rely upon the opinion or
advice of, or a certificate or a report or any information
(whether addressed to the Issuer Security Trustee or not) obtained
from, any lawyer, banker, valuer, surveyor, securities company,
broker, auctioneer, accountant or other expert in the United
Kingdom or elsewhere, whether obtained by the Master Issuer, the
Issuer Security Trustee or otherwise, whether or not any of the
aforesaid or any engagement letter or other document entered into
by the Issuer Security Trustee and the relevant person in
connection therewith contains any monetary or other limit on the
liability of the relevant person and the Issuer Security Trustee
shall not be responsible for any loss occasioned by so acting or
relying on. Any such opinion, advice, certificate or information
may be sent or obtained by letter, facsimile reproduction or in
any other form and the Issuer Security Trustee shall not be liable
for acting in good faith on any opinion, advice, certificate or
information purporting to be so conveyed although the same shall
contain some error or shall not be authentic provided that such
error or lack of authenticity is not manifest.
32
(b) The Issuer Security Trustee may call for and shall be entitled to
rely upon a certificate, reasonably believed by it to be genuine,
of the Master Issuer or any other person in respect of every
matter and circumstance for which a certificate is expressly
provided for under this Deed, the Conditions or any other Issuer
Transaction Document and to call for and rely upon a certificate
of the Agent Bank, any Paying Agent, Registrar, Transfer Agent,
any Reference Bank or any other person reasonably believed by it
to be genuine as to any other fact or matter prima facie within
the knowledge of such Agent Bank, Paying Agent, Registrar,
Transfer Agent, Reference Bank or such other person as sufficient
evidence thereof and the Issuer Security Trustee shall not be
bound in any such case to call for further evidence or be
responsible for any Liability or inconvenience that may be caused
by it failing to do so.
(c) The Issuer Security Trustee shall be entitled to act on any
directions provided in accordance with Clause 15.13 (Issuer
Security Trustee to act on directions) without further enquiry and
to assume that any such directions are given in accordance with
the provisions of this Deed and the Issuer Security Trustee shall
not be liable to any person for any action taken or omitted under
or in connection with this Deed in accordance with any such
directions. The Issuer Security Trustee shall be entitled to act
upon any notice, request or other communication of any party to
this Deed for the purposes of this Deed or any of the Issuer
Transaction Documents if such notice, request or other
communication purports to be signed or sent by or on behalf of any
authorised signatory of such party.
15.3 Powers and Duties:
(a) The Issuer Security Trustee shall not have any responsibility for
or have any duty to make any investigation in respect of or in any
way be liable whatsoever for the nature, status, creditworthiness
or solvency of the Master Issuer. Each Issuer Secured Creditor and
each other Issuer Secured Creditor shall be solely responsible for
making its own independent appraisal of and investigation into the
financial condition, creditworthiness, affairs, status and nature
of the Master Issuer and the Issuer Security Trustee shall not at
any time have any responsibility for the same and each Issuer
Secured Creditor and other Issuer Secured Creditors shall not rely
on the Issuer Security Trustee in respect thereof.
(b) The Issuer Security Trustee shall not be responsible for the
execution, legality, effectiveness, adequacy, genuineness,
validity or enforceability or admissibility in evidence of any
Issuer Transaction Document or any other document entered into in
connection therewith or any security thereby constituted or
purported to be constituted thereby nor shall it be responsible or
liable to any person because of any invalidity of any provision of
such documents or the unenforceability thereof, whether arising
from statute, law or decision of any court.
(c) The Issuer Security Trustee shall not be responsible for the scope
or accuracy of any recitals, statements, warranty, representation
or covenant of any party (other than the Issuer Security Trustee)
contained herein or in any other Issuer
33
Transaction Document or any other document entered into in
connection therewith and shall assume the accuracy and correctness
thereof.
(d) The Issuer Security Trustee may accept without enquiry,
requisition or objection such title as the Master Issuer may have
to the Issuer Charged Property or as Funding 2 may have to the
Funding 2 Charged Property or any part thereof from time to time
and shall not be required to investigate or make any enquiry into
or be liable for any defect in the title of the Master Issuer to
the Issuer Charged Property or of Funding 2 to the Funding 2
Charged Property or any part thereof from time to time whether or
not any defect was known to the Issuer Security Trustee or might
have been discovered upon examination, inquiry or investigation
and whether or not capable of remedy.
(e) The Issuer Security Trustee shall not be bound to give notice to
any person of the execution of this Deed, nor shall it have any
duty to make any investigation in respect of or in any way be
liable whatsoever for the registration, filing, protection or
perfection of the Issuer Security or the priority of the Issuer
Security created thereby and shall not be liable for any failure,
omission or defect in perfecting, protecting, procuring the
registration of or further assuring the security created or
purported to be created thereby.
(f) The Issuer Security Trustee shall not have any duty to make any
investigation in respect of or in any way be liable whatsoever for
the failure to call for delivery of documents of title to or
require any transfers, legal mortgages, charges or other further
assurances in relation to any of the assets the subject matter of
any of this Deed or any other document.
(g) The Issuer Security Trustee shall be under no obligation to
monitor or supervise and shall not have any duty to make any
investigation in respect of or in any way be liable whatsoever for
the performance or observance by the Master Issuer or any other
person of the provisions of this Deed or any other Issuer
Transaction Document and shall be entitled to assume that each
person is properly performing and complying with its obligations
hereunder.
(h) The Issuer Security Trustee shall not have any responsibility for
or have any duty to make any investigation in respect of or in any
way be liable whatsoever for the existence, accuracy or
sufficiency of any legal or other opinions, searches, reports,
certificates, valuations or investigations delivered or obtained
or required to be delivered or obtained at any time in connection
with the Issuer Charged Property or any Issuer Transaction
Document.
(i) The Issuer Security Trustee shall have no responsibility
whatsoever to any Issuer Secured Creditor as regards any
deficiency which might arise because the Issuer Security Trustee
is subject to any Tax in respect of the Issuer Charged Property or
any part thereof or any income therefrom or any proceeds thereof
or is required by law to make any withholding or deduction from
any payment to any Issuer Secured Creditor.
(j) The Issuer Security Trustee will not be responsible or liable for
any inadequacy or unfitness of any Issuer Charged Property as
security or any
34
decline in value of any loss realised upon any disposition of the
Issuer Charged Property.
(k) The Issuer Security Trustee shall not be responsible for, nor
shall it have any liability with respect to, any loss or theft of
the Issuer Charged Property.
(l) The Issuer Security Trustee shall not be liable or responsible for
any loss, cost, damage, expense or inconvenience which may result
from anything done or omitted to be done by it under this Deed or
under any of the other Issuer Transaction Documents.
(m) The Issuer Security Trustee may appoint and pay any person to act
as a custodian or nominee on any terms in relation to such assets
of the trust as the Issuer Security Trustee may determine,
including for the purpose of depositing with a custodian this Deed
or any Issuer Transaction Document and the Issuer Security Trustee
shall not be responsible for any loss, liability, expense, demand,
cost, claim or proceedings incurred by reason of the misconduct,
omission or default on the part of any person appointed by it
hereunder or be bound to supervise the proceedings or acts of any
such person.
(n) The Issuer Security Trustee shall (save as expressly otherwise
provided in this Deed or in any other Issuer Transaction Document)
as regards all rights, powers, authorities and discretions vested
in it by this Deed or any other Issuer Transaction Document, or by
operation of law, have absolute and uncontrolled discretion as to
the exercise or non-exercise thereof and the Issuer Security
Trustee shall not be responsible for any liability that may result
from the exercise or non-exercise thereof but whenever the Issuer
Security Trustee is under the provisions of this Deed bound to act
at the request or direction of any party, the Issuer Security
Trustee shall nevertheless not be so bound unless first
indemnified and/or provided with security to its satisfaction
against all actions, proceedings, claims and demands to which it
may render itself liable and all costs, charges, damages, expenses
and Liabilities which it may incur by so doing.
(o) The Issuer Security Trustee as between itself and the Issuer
Secured Creditors or any of them shall have full power to
determine all questions and doubts arising in relation to any of
the provisions of this Deed and/or any other Issuer Transaction
Document and every such determination, whether made upon a
question actually raised or implied in the acts or proceedings of
the Issuer Security Trustee, shall be conclusive and shall bind
the Issuer Security Trustee and the Issuer Secured Creditors.
(p) The Issuer Security Trustee shall not be responsible for any
liability occasioned to the Issuer Charged Property however
caused, whether by an act or omission of the Master Issuer or any
other party to the Issuer Transaction Documents or any other
person (including any bank, broker, depositary, warehouseman or
other intermediary or any clearing system or operator thereof) or
otherwise irrespective of whether the Issuer Charged Property is
held by or to the order of any such persons.
35
(q) The Issuer Security Trustee shall not be responsible for the
receipt or application by the Master Issuer of any amounts under
the Funding 2 Intercompany Loan.
(r) In connection with the exercise by it of any of its trusts,
powers, authorities and discretions under this Deed (including
without limitation any power to authorise any amendment or to
waive any breach or to make any determination) the Issuer Security
Trustee shall:
(i) whilst the Notes are outstanding, act only at the direction
of the Note Trustee.
(ii) at any time after the redemption in full of the Issuer
Notes, it shall have regard to the interest of the Issuer
Secured Creditor which ranks next highest under the Issuer
Post-Enforcement Priority of Payments;
(iii) it shall not have regard to, or be in any way liable for,
the consequences of any exercise thereof for any other
person.
In all cases, the Issuer Security Trustee will only be obliged to act if
it is indemnified and/or secured to its satisfaction.
(s) The Issuer Security Trustee may determine whether or not a default
in the performance by the Master Issuer of any obligation under
the provisions of this Deed or any other Issuer Transaction
Document or a default in the performance by Funding 2 of any
obligation under the Funding 2 Intercompany Loan Agreement is
capable of remedy and/or whether the same is materially
prejudicial to the interests of the Issuer Secured Creditors or
any of them and if the Issuer Security Trustee shall certify that
any such default is, in its opinion, not capable of remedy and/or
materially prejudicial to the interests of the Issuer Secured
Creditors or any of them, such certificate shall be conclusive and
binding upon the Master Issuer and the Issuer Secured Creditors.
(t) The Issuer Security Trustee may, in the conduct of its trust
business, instead of acting personally, employ and pay an agent on
any terms, whether or not a lawyer or other professional person,
to transact or conduct, or concur in transacting or conducting,
any business and to do or concur in doing all acts required to be
done by the Issuer Security Trustee (including the receipt and
payment of monies).
(u) In relation to any asset held by the Issuer Security Trustee under
this Deed, the Issuer Security Trustee may appoint any person to
act as its nominee on any terms.
(v) Any trustee of this Deed being a lawyer, accountant, broker or
other person engaged in any profession or business shall be
entitled to charge and be paid all usual professional and other
charges for business transacted and acts done by him or his firm
in connection with the trusts of this Deed and the other Issuer
Transaction Documents and also his charges in addition to
disbursements for all other work and business done and all time
spent by him
36
or his firm in connection with matters arising in connection with
this Deed and the other Issuer Transaction Documents, including
matters which might or should have been attended to in person by a
trustee not being a banker, lawyer, broker or other professional
person.
(w) The Issuer Security Trustee may, in the execution of all or any of
the trusts, powers, authorities and discretions vested in it by
this Deed or any of the other Issuer Transaction Documents, act by
responsible officers or a responsible officer for the time being
of the Issuer Security Trustee. The Issuer Security Trustee may
also, whenever it thinks expedient in the interests of the Issuer
Secured Creditors, whether by power of attorney or otherwise,
delegate to any person or persons all or any of the trusts,
rights, powers, duties, authorities and discretions vested in it
by this Deed or any of the other Issuer Transaction Documents. Any
such delegation may be made upon such terms and subject to such
conditions and subject to such regulations (including power to
sub-delegate) as the Issuer Security Trustee may think fit in the
interests of the Issuer Secured Creditors. The Issuer Security
Trustee shall give prompt notice to the Master Issuer of the
appointment of any delegate as aforesaid and shall procure that
any delegate shall also give prompt notice of the appointment of
any sub-delegate to the Master Issuer.
(x) If the Issuer Security Trustee exercises reasonable care in
selecting any custodian, agent, delegate, nominee or any other
person appointed under this Clause 15.3 (Powers and Duties) (each,
an "Appointee") it will not have any obligation to supervise such
Appointee or be responsible for any loss, liability, costs, claim,
proceedings or expenses incurred by reason of such Appointee's
misconduct, omission or default or the misconduct, omission or
default of any substitute lawfully appointed by such Appointee.
(y) Where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law)
be converted at such rate or rates in accordance with such method
and as at such date for the determination of such rate of
exchange, as may be specified by the Issuer Security Trustee in
its absolute discretion but having regard to rates of exchange if
available and the Issuer Security Trustee shall not be liable for
any loss occasioned by the said conversion under this paragraph
(w) and any rate mentioned and date so specified shall be binding
on the Issuer Secured Creditors.
(z) Any consent given by the Issuer Security Trustee for the purposes
of this Deed or any of the other Issuer Transaction Documents may
be given on such terms and subject to such conditions (if any) as
the Issuer Security Trustee thinks fit and may be given
retrospectively. The Issuer Security Trustee may (subject to the
provisions of Clause 15.13) give any consent or approval, exercise
any power, authority or discretion or take any similar action
(whether or not such consent, approval, power, authority,
discretion or action is specifically referred to in this Deed) if
it is satisfied that the interests of the Issuer Secured Creditors
will not be materially prejudiced thereby.
37
(aa) The Issuer Security Trustee shall not be liable for any error of
judgment made in good faith by any officer or employee of the
Issuer Security Trustee assigned by the Issuer Security Trustee to
administer its corporate trust matters.
(bb) The Issuer Security Trustee shall not (unless required by law or
ordered to do so by a court of competent jurisdiction) be required
to disclose to any Issuer Secured Creditor or any other person any
information made available to the Issuer Security Trustee by the
Master Issuer or any other person in connection with the trusts of
this Deed or any other Issuer Transaction Documents and no Issuer
Secured Creditor or any other person shall be entitled to take any
action to obtain from the Issuer Security Trustee any such
information. The Issuer Security Trustee shall not be responsible
for exercising the rights of any of the parties under the Issuer
Transaction Documents or considering the basis upon which the
approvals or consents are granted by any of the parties under the
Issuer Transaction Documents.
(cc) Notwithstanding anything else in this Deed, the Issuer Notes or
any other Issuer Transaction Document, the Issuer Security Trustee
may refrain from doing anything which would or might in its
opinion be contrary to any law of any jurisdiction or any
directive or regulation of any governmental agency or which would
or might otherwise render it liable to any person and may do
anything which is, in its opinion, necessary to comply with any
such law, directive or regulation.
(dd) Without prejudice to the right of the Issuer Security Trustee to
require and/or accept any other evidence, the Issuer Security
Trustee may accept as conclusive evidence of any fact or matter in
relation to the Master Issuer or required to be certified by the
Master Issuer under the Conditions, a certificate signed by two
directors of the Master Issuer and the Issuer Security Trustee
shall not be bound in any such case to call for further evidence
or be responsible for any liability that may be occasioned by it
or any other person acting on such certificate.
(ee) If an Event of Default occurs and is continuing and if it is known
to an Authorised Officer of the Issuer Security Trustee, the
Issuer Security Trustee shall mail to each Issuer Secured Creditor
notice of such Note Event of Default within 90 days after it
occurs.
(ff) The powers conferred by this Deed upon the Issuer Security Trustee
or any Receiver shall be in addition to and not in substitution
for any powers which may from time to time be conferred on the
Issuer Security Trustee or any such Receiver by statute or under
common law.
(gg) The Issuer Security Trustee has no duties or responsibilities
except those expressly set out in this Deed or in the other Issuer
Transaction Documents.
(hh) Without prejudice to the provisions of any Issuer Transaction
Documents relating to insurance, the Issuer Security Trustee shall
not be under any obligation to insure any of the Issuer Charged
Property or the Funding 2 Charged Property or any deeds or
documents of title or other evidence in
38
respect of the Issuer Charged Property or the Funding 2 Charged
Property or to require any other person to maintain any such
insurance or monitor the adequacy of any such insurance and shall
not be responsible for any liability which may be suffered by any
person as a result of the lack of or inadequacy of any such
insurance.
15.4 No Financial Liability: Notwithstanding any other provision of this Deed
or of any other Issuer Transaction Document, nothing shall require the
Issuer Security Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers or otherwise in connection with
this Deed or any other Issuer Transaction Document (including, without
limitation, forming any opinion or employing any legal, financial or
other adviser), if it shall believe that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it.
The Issuer Security Trustee shall not be responsible for exercising the
rights of any of the parties under the Issuer Transaction Documents or
considering the basis upon which the approvals or consents are granted
by any of the parties under the Issuer Transaction Documents.
15.5 Ascertaining Default: The Issuer Security Trustee shall not be
responsible or liable for:
(a) exercising any rights or powers which are assigned to it by any
party to the Issuer Transaction Documents, including, without
limitation, any servicing, administration and management functions
in relation to the Mortgage Loans and shall not be liable to any
person for the exercise or non-exercise of any such rights and
powers;
(b) ascertaining whether a default has occurred under the terms of any
of the Issuer Transaction Documents and, save where otherwise
specifically provided in the Issuer Transaction Documents, nor is
the Issuer Security Trustee responsible for taking any action in
connection with any such default or alleged default; 15.6 Rating
of Issuer Notes: The Issuer Security Trustee shall have no
responsibility for the maintenance of any rating of the Issuer
Notes by the Rating Agencies or any other credit-rating agency or
any other person.
15.7 Delivery of Certificates: The Issuer Security Trustee shall have no
liability whatsoever for any loss, cost damages or expenses directly or
indirectly suffered or incurred by the Master Issuer, any Issuer Secured
Creditor or any other person as a result of the delivery by the Issuer
Security Trustee of a certificate, or the omission by it to deliver a
certificate, to the Master Issuer as to material prejudice, on the basis
of an opinion formed by it in good faith.
15.8 Assumption of No Default: The Issuer Security Trustee shall not be bound
to ascertain whether any Note Event of Default or Potential Note Event
of Default has happened and, until it shall have actual knowledge or
express notice to the contrary, the Issuer Security Trustee shall be
entitled to assume that no such Note Event of Default or Potential Note
Event of Default has happened and that the Master Issuer is observing
and performing all the obligations on its part under the Issuer Notes
and
39
this Deed and no event has happened as a consequence of which any Issuer
Notes may become repayable.
15.9 Assumption of no Intercompany Loan Default: The Issuer Security Trustee
shall not be bound to ascertain whether any Funding 2 Intercompany Loan
Event of Default or Potential Funding 2 Intercompany Loan Event of
Default has happened and, until it shall have actual knowledge or
express notice to the contrary, the Issuer Security Trustee shall be
entitled to assume that no such Funding 2 Intercompany Loan Event of
Default or Potential Funding 2 Intercompany Loan Event of Default has
happened and that Funding 2 is observing and performing all the
obligations on its part;
The Issuer Security Trustee shall not be bound to ascertain whether any
Issuer Cash Manager Termination Event or any event which with the giving
of notice or expiry of any grace period or certification as specified in
such Issuer Cash Manager Termination Event would constitute the same has
happened and, until it shall receive express notice to the contrary
pursuant to Clause 11.4 (Note of Event of Default) of the Issuer Cash
Management Agreement, the Issuer Security Trustee shall be entitled to
assume that no such Issuer Cash Manager Termination Event or such other
event as described above has happened and that the Issuer Cash Manager
is observing and performing its obligations contained in the Issuer Cash
Management Agreement.
The Issuer Security Trustee shall not be bound to ascertain whether any
Termination Event under the Issuer Bank Account Agreement or any event
which with the giving of notice or expiry of any grace period or
certification as specified in the Issuer Bank Account Agreement, would
constitute the same has happened and, until it shall receive express
notice to the contrary pursuant to Clause 8 (Termination) of the Issuer
Bank Account Agreement, the Issuer Security Trustee shall be entitled to
assume that no such termination event under the Issuer Bank Account
Agreement or such other event as described above has happened and that
the Account Bank is observing and performing its obligations contained
in the Issuer Bank Account Agreement.
15.10 Commercial Transactions: The Issuer Security Trustee shall not, and no
director, officer or employee of any corporation being an Issuer
Security Trustee hereof shall by reason of the fiduciary position of the
Issuer Security Trustee be in any way precluded from making any
commercial contracts or entering into any commercial transactions with
any party to the Issuer Transaction Documents, whether directly or
through any subsidiary or associated company, or from accepting the
trusteeship of any other debenture stock, debentures or securities of
any party to the Issuer Transaction Documents, and without prejudice to
the generality of these provisions, it is expressly declared that such
contracts and transactions include any contract or transaction in
relation to the placing, underwriting, purchasing, subscribing for or
dealing with or lending monies upon or making payments in respect of or
any stock, shares, debenture stock, debentures or other securities of
any party to the Issuer Transaction Documents or any contract of banking
or insurance of any party to the Issuer Transaction Documents and
neither the Issuer Security Trustee nor any such director, officer or
employee shall be accountable to any Issuer Secured Creditor or to any
party to the Issuer Transaction Documents for any profit, fees,
commissions, interest, discounts or share of brokerage earned, arising
or resulting from any such contracts or transactions, and the Issuer
Security Trustee and any such director, officer or employee shall also
be at liberty to retain the same without accounting therefor.
40
15.11 Issuer Security Trustee Liable for Negligence etc.: Notwithstanding any
other provision of this Deed, none of the provisions of this Deed shall,
in any case in which the Issuer Security Trustee has failed to show the
degree of care and diligence required of it as trustee under this Deed
having regard to the provisions of this Deed conferring on the Issuer
Security Trustee any powers, authorities or discretions, relieve the
Issuer Security Trustee from or indemnify the Issuer Security Trustee
against any liabilities which by virtue of any rule of law would
otherwise attach to it in respect of any negligence, default, breach of
duty or breach of trust of which it may be guilty in relation to its
duties under this Deed.
15.12 Issuer Security Trustee to act on directions: Notwithstanding any other
provision in any other Issuer Transaction Document, each of the Issuer
Secured Creditors and the Master Issuer acknowledges that when
exercising its opinion and/or when exercising the rights, benefits,
power, trusts, authorities, discretions and obligations expressed to be
granted by this Deed, the other Issuer Transaction Documents or by
operation of law, the Issuer Security Trustee shall, for so long as
there are any Issuer Notes outstanding, act only at the request or
directions received from the Note Trustee and shall not be responsible
for any Liability or inconveniences that may result from the exercise or
non-exercise thereof (including any Liability occasioned by any delay or
failure on the part of the Note Trustee(s) to make any such request or
give any such discretion provided that:
(a) if there is a conflict between the interests (as directed by the
Note Trustee(s)) of holders of Issuer Notes issued by more than
one Noteholder or a conflict in directions received from the Note
Trustee(s), the Issuer Security Trustee shall have regard only to
the interests or directions, as applicable, of the Note Trustee or
Note Trustee(s) acting as trustees in respect of the holders of
the highest ranking class of Issuer Notes outstanding (the
"Principal Directions"); and
(b) if there is any conflict between the Principal Directions, due to
more than one Noteholder having Issuer Notes of the same class as
their highest ranking class, the Issuer Security Trustee shall
have regard only to the Principal Directions of the Note
Trustee(s) representing the holders of the greatest aggregate
principal amount outstanding of the highest ranking class of
Issuer Notes, and for this purpose, the principal amount
outstanding of any Issuer Note not denominated in Sterling shall
be converted into Sterling at the rate specified in the relevant
swap agreement applicable to such Issuer Note or, if at the
relevant time there is no such currency swap agreement in effect,
at the "spot rate" at which the relevant currency is converted
into Sterling on the foreign exchange markets.
16. Appointment, Removal and Retirement
16.1 Power of Master Issuer: Subject to the provisions of this Clause 16
(Appointment, Removal and Retirement), the power of appointing a new
Issuer Security Trustee in place of an existing Issuer Security Trustee
shall be vested in the Master Issuer but such appointment or removal
must (i) be approved by (save to the extent otherwise provided in the
Conditions) an Extraordinary Resolution of the Class A Noteholders, the
Class B Noteholders, the Class M Noteholders, the Class C Noteholders
and the Class D Noteholders then outstanding, and (ii) be approved in
writing by each other
41
Issuer Secured Creditor (such approval not be unreasonably withheld or
delayed). A trust corporation may be appointed sole trustee hereof but
subject thereto there shall be at least two trustees hereof, one at
least of which shall be a trust corporation. Any appointment of a new
Issuer Security Trustee and any retirement of an existing Issuer
Security Trustee hereof shall as soon as practicable thereafter be
notified by the Master Issuer to the Issuer Secured Creditors. Any new
Issuer Security Trustee must meet the requirements set out in Clause
16.5 (Retirement or Removal Not Effective).
16.2 Powers of Issuer Security Trustee to appoint: Notwithstanding the
provisions of Clause 16.1 (Power of Master Issuer), the Issuer Security
Trustee may (as attorney for the Master Issuer) upon giving prior notice
to the Master Issuer but without the consent of the Master Issuer or the
Issuer Secured Creditors appoint any person established or resident in
any jurisdiction (whether a trust corporation or not) to act either as a
separate trustee or as a co-trustee jointly with the Issuer Security
Trustee:
(a) if the Issuer Security Trustee considers such appointment to be in
the interests of the Issuer Secured Creditors (or any of them); or
(b) for the purposes of conforming to any legal requirements,
restrictions or Conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already
obtained or any of the provisions of these presents or any of the
other Issuer Transaction Documents against the Master Issuer or
any other party thereto.
The Master Issuer hereby irrevocably appoints the Issuer Security
Trustee to be its attorney in its name and on its behalf to execute any
such instrument of appointment. Such a person shall (subject always to
the provisions of these presents and any other Issuer Transaction
Document to which the Issuer Security Trustee is a party) have such
trusts, powers, authorities and discretions (not exceeding those
conferred on the Issuer Security Trustee by these presents or any of the
other Issuer Transaction Documents to which the Issuer Security Trustee
is a party) and such duties and obligations as shall be conferred or
imposed on it by the instrument of appointment. The Issuer Security
Trustee shall have power in like manner to remove any such person. Such
proper remuneration as the Issuer Security Trustee may pay to any such
person, together with any attributable costs, charges and expenses
incurred by it in performing its function as such separate trustee or
co-trustee, shall for the purposes of these presents be treated as
costs, charges and expenses incurred by the Issuer Security Trustee.
16.3 Multiple Trustees: Whenever there shall be more than two trustees
hereof, the majority of such trustees shall (provided such majority
includes a trust corporation) be competent to execute and exercise all
the trusts, powers, authorities and discretions vested by these presents
and any of the other Issuer Transaction Documents in the Issuer Security
Trustee generally.
16.4 Retirement or Removal of Issuer Security Trustee: Subject as provided in
Clause 16.5 (Retirement or Removal not Effective), any Issuer Security
Trustee for the time being of this Deed may retire at any time upon
giving not less than three months' prior
42
notice in writing to the Master Issuer without assigning any reason
therefor and without being responsible for any costs resulting from such
retirement.
16.5 Retirement or Removal not Effective: The retirement or removal of any
Issuer Security Trustee shall not become effective unless there remains
at least one trustee hereof being a trust corporation in office upon
such retirement or removal. The Master Issuer covenants that, in the
event of a trustee (being a sole trustee or the only trust corporation)
giving notice or being removed under Clause 16.4 (Retirement or Removal
of Issuer Security Trustee) it shall use its best endeavours to procure
a new Issuer Security Trustee of these presents (being a trust
corporation) to be appointed as soon as reasonably practicable
thereafter (for the avoidance of doubt, on the same terms as these
presents). If within 30 days of having given notice of its intention to
retire, the Master Issuer has failed to appoint a replacement Issuer
Security Trustee, the outgoing Issuer Security Trustee will be entitled
to appoint its successor provided that the Rating Agencies confirm that
the then ratings of the Issuer Notes shall not be either reduced,
qualified or withdrawn as a result of such appointment.
16.6 Funding 2 Security Trustee, Note Trustee and Issuer Security Trustee: If
the Issuer Security Trustee retires or is removed in accordance with the
provisions of this Clause 16 (Appointment, Removal and Retirement) then
the Funding 2 Security Trustee, each Note Trustee and each other Issuer
Security Trustee shall retire at the same time in accordance with the
provisions of the Funding 2 Deed of Charge, the applicable Issuer Trust
Deed and the applicable Issuer Deed of Charge. If the Funding 2 Security
Trustee retires or is removed in accordance with the provisions of the
Funding 2 Deed of Charge, a Note Trustee retires or is removed in
accordance with the provisions of the applicable Issuer Trust Deed
and/or another Issuer Security Trustee retires or is removed in
accordance with the provisions of the applicable Issuer Deed of Charge,
then the Issuer Security Trustee shall retire at the same time in
accordance with the provisions of this Clause 16 (Appointment, Removal
and Retirement). In each case the successor Issuer Security Trustee, the
Funding 2 Security Trustee, each successor Note Trustee and each other
successor Issuer Security Trustee shall be the same person or persons.
17. Remuneration and Indemnification of Issuer Security Trustee
17.1 Normal Remuneration: The Master Issuer shall (subject as hereinafter
provided) pay to the Issuer Security Trustee remuneration of such amount
and on such Monthly Payment Dates as shall, in each case, from time to
time be agreed by the Master Issuer and the Issuer Security Trustee. The
rate of remuneration in force from time to time may upon the final
redemption of the whole of the Issuer Notes of any Series be reduced by
such amount as shall be agreed between the Master Issuer and the Issuer
Security Trustee, such reduced remuneration to be calculated from such
date as shall be agreed as aforesaid. Such remuneration shall be payable
in priority to payments to Noteholders and other Issuer Secured
Creditors on the applicable Monthly Payment Dates subject to and in
accordance with the relevant Issuer Priority of Payments and the
provisions of this Deed. Such remuneration shall accrue from day to day
and be payable up to and including the date when, all the Issuer Notes
having become due for redemption, the redemption monies and interest
thereon to the date of redemption have been paid to the Principal Paying
Agent or, as the case may be, the Issuer Security Trustee PROVIDED THAT
if upon due presentation of any Note Certificate or any cheque payment
of the monies due in respect thereof is improperly withheld or
43
refused, remuneration will commence again to accrue until payment to
Noteholders is made.
17.2 Extra Remuneration: In the event of the occurrence of a Note Event of
Default or the Issuer Security Trustee considering it expedient or
necessary or being requested by the Master Issuer to undertake duties
which the Issuer Security Trustee and the Master Issuer agree to be of
an exceptional nature or otherwise outside the scope of the normal
duties of the Issuer Security Trustee under this Deed, the Master Issuer
shall pay to the Issuer Security Trustee such additional remuneration
and on such Monthly Payment Dates as shall, in each case, be agreed
between them;
17.3 Failure to Agree: In the event of the Issuer Security Trustee and the
Master Issuer failing to agree:
(a) (in a case to which Clause 17.1 (Normal Remuneration) applies)
upon normal remuneration; or
(b) (in a case to which Clause 17.2 (Extra Remuneration) applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Issuer Security
Trustee under these presents, or upon such additional
remuneration;
such matters shall be determined by an investment bank (acting as an
expert and not as an arbitrator) selected by the Issuer Security Trustee
and approved by the Master Issuer or, failing such approval, nominated
(on the application of the Issuer Security Trustee) by the President for
the time being of The Law Society of England and Wales (the expenses
involved in such nomination and the fees of such investment bank being
payable by the Master Issuer) and the determination of any such
investment bank shall be final and binding upon the Issuer Security
Trustee and the Master Issuer.
17.4 Expenses: In addition to the remuneration hereunder, the Master Issuer
shall on written request, pay all other costs, charges and expenses
(against production of invoices) which the Issuer Security Trustee may
properly incur in relation to:
(a) the negotiation, preparation and execution of, the exercise of its
powers and discretions and the performance of its duties under
these presents and any other Issuer Transaction Documents
including, but not limited to legal and travelling expenses; and
(b) any other action taken by or on behalf of the Issuer Security
Trustee to enforce the obligations of the Master Issuer under or
resolving any doubt in respect of these presents and/or any of the
other Issuer Transaction Documents.
17.5 Indemnity: The Master Issuer shall indemnify the Issuer Security Trustee
in respect of all Liabilities to which it (or any person appointed by it
hereunder) may be or become liable or which may be properly incurred by
it (or any such person as aforesaid) in the execution or purported
execution of any of its trusts, powers, authorities and discretions
hereunder or its functions under any such appointment or in respect of
any other matter or thing done or omitted in any way relating to these
presents and any of the other Issuer Transaction Documents provided that
it is
44
expressly stated that Clause 15.12 (Issuer Security Trustee Liable for
Negligence etc.) shall apply in relation to these provisions.
17.6 Stamp Duties: The Master Issuer shall pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of
doubt any duty levied under the Xxxxx Xxx 0000 as amended and
supplemented, (if any) payable in the United Kingdom on or arising out
of or in consequence of:
(a) the execution and delivery of this Deed and any other Issuer
Transaction Document to which the Issuer Security Trustee is a
party; and
(b) any action in any jurisdiction taken by or on behalf of the Issuer
Security Trustee. If the Issuer Security Trustee (or any
Noteholder or Issuer Secured Creditor) where permitted under these
presents or the Issuer Trust Deed to do so shall take any
proceedings against the Master Issuer in any other jurisdiction
and if for the purpose of any such proceedings, this Deed is taken
into any such jurisdiction and any stamp duties or other duties or
taxes become payable thereon in any such jurisdiction, the Master
Issuer will pay (or reimburse the person making payment of) such
stamp duties or other duties or taxes (including interest or
penalties).
17.7 VAT: The Master Issuer shall in addition pay to the Issuer Security
Trustee an amount equal to any value added tax or similar tax chargeable
in respect of its remuneration under this Deed.
17.8 Interest: Subject as provided in Clause 17.9 (Payment), all sums payable
by the Master Issuer under this Clause 17 (Remuneration and
Indemnification of Issuer Security Trustee) shall be payable on demand
or, in the case of any remuneration payable under Clause 17.1 (Normal
Remuneration) on the due date specified therein and shall carry interest
at the rate per annum, which is one per cent. per annum above the base
rate from time to time of the National Westminster Bank Plc from the
date on which they were paid, charged or incurred by the Issuer Security
Trustee or, in the case of remuneration, the due date for payment
thereof, to the date of actual payment, and in all other cases shall (if
not paid on the date specified in such demand or, if later, within three
days after such demand and, in either case, the Issuer Security Trustee
so requires) carry interest at such rate from the date specified in such
demand.
17.9 Payment: Notwithstanding the other provisions of this Deed, any amount
owing by the Master Issuer pursuant to this Clause 17 (Remuneration and
Indemnification of Issuer Security Trustee) shall only be payable by the
Master Issuer subject to and in accordance with the applicable Issuer
Priority of Payments which applies at such time.
17.10 Survival: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 17 (Remuneration and Indemnification
of Issuer Security Trustee) shall continue in full force and effect
notwithstanding such discharge.
18. Modification and Waiver
18.1 Modification: Subject as expressly provided otherwise in any Issuer
Transaction Document, the Issuer Security Trustee may (subject to the
provisions of Clause 15.12
45
(Issuer Security Trustee to act on directions)) from time to time and
without the consent or sanction of the Noteholders or any other Issuer
Secured Creditor (other than the Note Trustee (if it is a party to the
relevant document)) at any time concur with any person in making or
sanctioning any modification or amendment to any of the Issuer
Transaction Documents:
(a) provided that the Issuer Security Trustee is of the opinion that
such modification would not be materially prejudicial to the
interests of any Issuer Secured Creditors;
(b) which in the opinion of the Issuer Security Trustee such
modification is of a formal, minor or technical nature or to
correct an error established as such to the satisfaction of the
Issuer Security Trustee; or
(c) which it may be necessary to make or which are required by the
Rating Agencies in respect of any person who has executed a Deed
of Accession pursuant to Clause 2 (Issuer Security) hereto.
For the purposes of this Clause 18.1 (Modification), a proposed
modification will not materially harm the interest of any Issuer Secured
Creditors solely as a result of any Funding 2 Issuer executing a Deed of
Accession pursuant to Clause 2.11 (New Intercompany Loan) of the Funding
2 Deed of Charge or the execution of a Deed of Accession.
Any such modification may be made on such terms and subject to such
conditions (if any) as the Issuer Security Trustee may determine, shall
be binding upon the Master Issuer and the Issuer Secured Creditors and,
unless the Issuer Security Trustee agrees otherwise, shall be notified
by the Master Issuer to the Noteholders in accordance with the
Conditions and to the other Issuer Secured Creditors as soon as
practicable thereafter. So long as any of the Issuer Notes are rated by
the Rating Agencies, the Master Issuer shall notify the Rating Agencies
in writing as soon as reasonably practicable thereafter of any
modification to the provisions of this Deed, the Issuer Notes, the
Issuer Trust Deed or any of the other Issuer Transaction Documents. Each
of the Issuer Secured Creditors agrees from time to time to do and
perform such other and further acts and execute and deliver any and all
such other instruments as may be required to carry out and effect the
intent and purpose of this Clause 18.1 (Modification and Waiver)).
18.2 Waiver: Subject as expressly provided otherwise in the Issuer Notes or
in any other Transaction Document and to Clause 15.13 (Issuer Security
Trustee to act at directions), the Issuer Security Trustee may from time
to time and at any time without the consent or sanction of the
Noteholders or any other Issuer Secured Creditor and without prejudice
to its rights in respect of any subsequent breach, but only if and in so
far as in its opinion the interests of the Issuer Secured Creditors
would not be materially prejudiced thereby waive or authorise any breach
or proposed breach by the Master Issuer or any other party thereto of
any of the covenants or provisions contained in this Deed or in any of
the other Transaction Documents PROVIDED ALWAYS THAT the Issuer Security
Trustee shall not exercise any powers conferred on it by this Clause
18.2 (Waiver) in contravention of any express direction or request given
in accordance with Clause 15.9 (Assumption of no Intercompany Loan
Default) (but so that no such direction or request shall affect any
waiver, authorisation or
46
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 Issuer Security Trustee may determine;
(b) shall be binding on the Noteholders and the other Issuer Secured
Creditors; and
(c) if, but only if, the Issuer Security Trustee shall so require,
shall be notified by the Master Issuer to the Noteholders in
accordance with the Conditions and to the other Issuer Secured
Creditors as soon as practicable thereafter.
19. Miscellaneous Provisions
19.1 Evidence of Indebtedness: In any action, proceedings or claim relating
to this Deed or the Issuer Security, a statement as to any amount due to
any Issuer Secured Creditor or of the Issuer Secured Obligations or any
part thereof or a statement of any amounts which have been notified to
the Issuer Security Trustee as being amounts due to any Issuer Secured
Creditor which is certified as being correct by an officer of the Issuer
Security Trustee or an officer of the relevant Issuer Secured Creditor
shall, save in the case of manifest error, be conclusive evidence that
such amount is in fact due and payable.
19.2 Liability: All the liabilities and obligations of the Master Issuer
under or by virtue of this Deed shall not be impaired by:
(a) any failure of this Deed to be legal, valid, binding and
enforceable as regards the Master 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 Master Issuer;
(c) a discharge or release of the Master 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 Issuer Secured Obligations and amounts
whatsoever which this Deed provides are to be paid by the Master
Issuer or an absolute discharge or release of the Master Issuer
signed by the Issuer Secured Creditors and the Issuer Security
Trustee.
19.3 Issuer Secured Creditors: Each Issuer Secured Creditor shall be bound by
the provisions of this Deed as if it contained covenants by each Issuer
Secured Creditor in favour of the Issuer Security Trustee and every
other Issuer Secured Creditor to observe and be bound by all the
provisions of this Deed expressed to apply to the Issuer Secured
Creditors.
47
20. Rights cumulative
The respective rights of the Note Trustee, the Issuer Security Trustee,
the Issuer Secured Creditors and any Receiver to this Deed 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 Issuer Security Trustee,
the 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 Deed are cumulative and not exclusive of any
remedies provided by law.
21. Assignment
None of the Issuer Secured Creditors may assign, encumber or transfer
all or any part of its rights or benefits and/or transfer its
obligations under this Deed without the prior written consent of the
Issuer Security Trustee.
22. Non Petition Covenant; Corporate Obligations
22.1 Corporate Obligations: To the extent permitted by law, no recourse under
any obligation, covenant, or agreement of any person contained in this
Deed 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 Deed is a corporate obligation of each
person expressed to be a party hereto and no personal liability shall
attach to or be incurred by the shareholders, officers, agents or
directors of such person as such, or any of them, under or by reason of
any of the obligations, covenants or agreements of such person contained
in this Deed, 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 Deed.
23. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Deed 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 Master Issuer, to Granite Master Issuer 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;
48
(b) in the case of the Note Trustee, to The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, attention the Trustee
Administration Manager (facsimile number 020 7964 4637);
(c) in the case of the Issuer Security Trustee, to the Bank of New
York, 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, attention
Trustee Administration Manager (facsimile number 020 7964 4637);
(d) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent or the Account Bank, to Citibank,
N.A., Citigroup Centre, Canada Square, Xxxxxx Xxxxx, Xxxxxx X00
0XX for the attention of Agency and Trust;
(e) in the case of the 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;
(f) in the case of the U.S. Paying Agent, to Citibank, N.A., 000 Xxxx
Xxxxxx, 14th Floor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
X.X.X. (facsimile number 000 000 0000) for the attention of Agency
and Trust;
(g) 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;
(h) 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 RMBS Monitoring, Structured
Finance;
(i) in the case of S&P, to Standard & Poor's, 20 Canada Square, Xxxxxx
Xxxxx, Xxxxxx X00 0XX (facsimile number 020 7176 3598) for the
attention of the Structured Finance Surveillance Group; and
(j) 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 23 (Notices).
24. Third Party Rights
A person who is not a party to this Deed 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.
25. Execution in Counterparts; Severability
25.1 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
49
when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same instrument.
25.2 Severability: Where any provision in or obligation under this Deed shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations
under this Deed, or of such provision or obligation in any other
jurisdiction, shall not be affected or impaired thereby.
26. Governing Law and Jurisdiction; Appropriate Forum
26.1 Governing Law: This Deed is governed by, and shall be construed in
accordance with, English law.
26.2 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 Deed and, for such purposes,
irrevocably submits to the jurisdiction of such courts.
26.3 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 Deed has been executed by the parties hereto as a
deed which has been delivered on the date first appearing on page one.
50
EXECUTION PAGE
IN WITNESS WHEREOF this Deed has been executed as a deed and delivered by the
parties hereto on the day and year first above written.
as Master Issuer
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
GRANITE MASTER ISSUER PLC )
acting by two directors )
-------------------------
for and on behalf of
LDC Securitisation Director No. 1 Limited
Director
Name:
-------------------------
for and on behalf of
LDC Securitisation Director No. 2 Limited
Director
Name:
as Issuer Security Trustee and Note Trustee
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
THE BANK OF NEW YORK )
by its duly authorised signatory )
-------------------------------
Name:
as Agent Bank, Issuer Account Bank, Principal Paying Agent, Registrar and
Transfer Agent
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
CITIBANK, N.A. )
by its duly authorised signatory )
-------------------------------
Name:
51
as US Paying Agent
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
CITIBANK N.A. )
by its duly authorised signatory )
-------------------------------
Name:
as Issuer Account Bank, Issuer Cash Manager and Start-Up Loan Provider
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
NORTHERN ROCK PLC )
by its duly authorised attorney )
-------------------------
Name:
in the presence of:
Signature _________________________
Witness
Full name
Occupation Trainee Solicitor
Address c/o Sidley Xxxxxx Xxxxx & Xxxx
Woolgate Exchange
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
52
as Corporate Services Provider
EXECUTED AND DELIVERED AS A DEED )
for and on behalf of )
LAW DEBENTURE CORPORATE )
SERVICES LIMITED )
acting by a director and its secretary )
-------------------------
Director
Name:
-------------------------
Secretary
Name:
53
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [o] by Granite Master Issuer plc (registered
number 5250668) 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 "Issuer Deed of Charge") dated [o] January 2005 between
Granite Master Issuer plc, The Bank of New York as Issuer Security
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 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 Issuer Secured Obligations and the covenants,
conditions, obligations and undertakings on the part of the Principal
contained in the Issuer Deed of Charge and the other 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 Issuer Security Trustee or Issuer Security Trustees of and under the
Issuer Deed of Charge (the "Attorney") and each and every person to whom
the Issuer Security Trustee shall from time to time have delegated the
exercise of the power of attorney conferred by this Power of Attorney
(each a "Delegate") and any receiver including any administrative
receiver and any manager (the "Receiver") and/or administrator (the
"Administrator") appointed from time to time by the Attorney or on its
behalf its true and lawful attorney for and in the Principal's name or
otherwise jointly and severally to sign, seal, execute, deliver, perfect
and do any assurance, act, matter or thing which the Attorney, Delegate,
Receiver or Administrator considers in each case to be necessary for the
protection or preservation of the Attorney's and the Issuer Secured
Creditors' interests and rights (as described in the Issuer Deed of
Charge) in and to the Issuer Charged Property or which ought to be done
by the Principal under the covenants, undertakings and provisions
contained in the Issuer Deed of Charge and the other 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
Issuer Deed of Charge on the Issuer Security Trustee and/or any Receiver
whether on or at any time after the security has become enforceable in
accordance with Clause 6.2 (Enforceable) of the Issuer Deed of Charge or
in any other circumstances where the Attorney has become entitled to
take any of the steps referred to in the Issuer Deed of Charge including
(without limitation) any or all of the following:
54
(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 Issuer Charged Property and/or fully and
effectively vesting, transferring or assigning the 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 Issuer Charged Property whatsoever
permitted under the 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 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 2 (Issuer Security) of the 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.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any
Delegate, Receiver or Administrator or Substitute shall properly and
lawfully do or cause to be done in and concerning the Issuer Charged
Property.
55
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 MASTER ISSUER PLC )
acting by: )
Director
Name:
Title:
Director/Secretary
Name:
Title:
56
SCHEDULE 2
ISSUER PRIORITY OF PAYMENTS
1. Priority of Payments for Issuer Available Revenue Receipts Prior to
Enforcement of the Issuer Security
On each Monthly Payment Date falling in a Monthly Payment Period, all
Funding 2 Available Revenue Receipts received by the Master Issuer from
Funding 2:
(i) in respect of items (B), (S), (U) and (V) of the Funding 2
Pre-Enforcement Revenue Priority of Payments shall be credited to
the Issuer Expense Sub-Ledger; and
(ii) being interest paid on a Loan Tranche shall be credited to a
sub-ledger (in respect of the related Series and Class of Issuer
Notes) of the Issuer Note Revenue Sub-Ledger to the Issuer Revenue
Ledger.
On each Distribution Date the Issuer Cash Manager will calculate whether
there will be an excess or a deficit of Issuer Available Revenue
Receipts to pay the aggregate of the payments and provisions required to
be made under items (A) through (N) of the Issuer Pre-Enforcement
Revenue Priority of Payments in the immediately following Monthly
Payment Period.
Prior to the enforcement of the Issuer Security, on or prior to the
first day of each Monthly Payment Period, the Issuer Cash Manager will,
subject to the rules for application of Issuer Available Revenue
Receipts set out in paragraph 4 of this Schedule 2, allocate the Issuer
Available Revenue Receipts towards the payments and provisions in
respect of Amounts due on all Monthly Payment Dates falling in such
Monthly Payment Period in the order of priority set out in the third
paragraph below (in each case only if and to the extent that payments or
provisions of a higher priority in respect of amounts due on any Monthly
Payment Date falling in such Monthly Payment Period have been made in
full) (the "Issuer Pre-Enforcement Revenue Priority of Payments"). The
Issuer Available Revenue Receipts so allocated will not be applied in
satisfaction of any payment or provision until the Monthly Payment Date
in such Monthly Payment Period on which such payment or provision is
required to be made.
The allocation of Issuer Available Revenue Receipts towards the payments
and provisions in respect of amounts due under any item of the Issuer
Pre-Enforcement Revenue Priority of Payments on all Monthly Payment
Dates falling in such Monthly Payment Period shall be made in no order
of priority but in proportion to the respective amounts due under such
item (in each case only if and to the extent that payments or provisions
of a higher priority in respect of amounts due under such item on any
Monthly Payment Date falling in such Monthly Payment Period have been
made in full).
On each Monthly Payment Date falling in the relevant Monthly Payment
Period and until enforcement of the Issuer Security pursuant to this
Deed of Charge or until such time as there are no Issuer Secured
Obligations outstanding, the amount of Issuer Available Revenue Receipts
so allocated towards each payment and provision in
57
respect of amounts due on the relevant Monthly Payment Date shall be
applied in making such payment or provision (save that, in respect of
amounts due to third parties by the Master Issuer pursuant to paragraph
(C) below, such payments will be made when due) in the order of priority
set out in the Issuer Pre-Enforcement Revenue Priority of Payments.
The following order of priority of payments is the Issuer
Pre-Enforcement Revenue Priority of Payments:
(A) first, in no order of priority among them but in proportion to the
amounts due in the relevant Monthly Payment Period, to pay amounts
due to the Note Trustee and the Issuer Security Trustee, together
with interest and (to the extent not already inclusive) VAT on
those amounts, and to provide for any amounts due or to become due
prior to the next following Monthly Payment Period to the Note
Trustee and the Issuer Security Trustee, under the Issuer Trust
Deed, this Deed of Charge or any other Transaction Document to
which the Master Issuer is a party;
(B) second, in no order of priority among them but in proportion to
the respective amounts due in the relevant Monthly Payment Period,
to pay amounts due to the Agent Bank, the Paying Agents, the
Transfer Agent and the Registrar together with interest and (to
the extent not already inclusive) VAT on those amounts, and to
provide for any costs, charges, liabilities and expenses due or to
become due prior to the next following Monthly Payment Period to
the Agent Bank, the Paying Agents, the Transfer Agent and the
Registrar under the Issuer Paying Agent and Agent Bank Agreement;
(C) third, to pay amounts due to any third party creditors of the
Master Issuer (other than those referred to later in this order of
priority of payments or in the Issuer Pre-Enforcement Principal
Priority of Payments), of which the Issuer Cash Manager has notice
prior to the relevant Monthly Payment Period, which amounts have
been incurred without breach by the Master Issuer of the
Transaction Documents to which it is a party and for which payment
has not been provided for elsewhere and to provide for any such
amounts expected to become due and payable prior to the next
following Monthly Payment Period by the Master Issuer and to pay
or discharge any liability of the Master Issuer for corporation
tax on any chargeable income or gain of the Master Issuer;
(D) fourth, in no order or priority among them but in proportion to
the respective amounts due in the relevant Monthly Payment Period,
to pay amounts due to the Issuer Cash Manager under the Issuer
Cash Management Agreement, the Corporate Services Provider under
the Corporate Services Agreement and the Issuer Account Banks
under the Issuer Bank Account Agreement together with (to the
extent not already inclusive) VAT on those amounts, and to provide
for any amounts due or to become due prior to the next following
Monthly Payment Period, to the Issuer Cash Manager under the
Issuer Cash Management Agreement, to the Corporate Services
Provider under the Corporate Services Agreement and to the Issuer
Account Bank under the Issuer Bank Account Agreement;
58
(E) fifth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each AAA Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer
Swap Provider(s) (if any) in respect of the related Series
and Class of Class A Notes (including any swap termination
payment but excluding any Issuer Swap Excluded Termination
Amount) in accordance with the terms of the relevant Issuer
Swap Agreement(s); and
(ii) to pay interest due and payable (if any) on the related
Series and Class of Class A Notes on such Monthly Payment
Date;
(F) sixth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each AA Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer
Swap Provider(s) (if any) in respect of the related Series
and Class of Class B Notes (including any swap termination
payment but excluding any Issuer Swap Excluded Termination
Amount) in accordance with the terms of the relevant Issuer
Swap Agreement(s);
(ii) to pay interest due and payable (if any) on the related
Series and Class of Class B Notes on such Monthly Payment
Date;
(G) seventh, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each A Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer
Swap Provider(s) (if any) in respect of the related Series
and Class of Class M Notes (including any swap termination
payment but excluding any Issuer Swap Excluded Termination
Amount) in accordance with the terms of the relevant Issuer
Swap Agreement(s);
(ii) to pay interest due and payable (if any) on the related
Series and Class of Class M Notes on such Monthly Payment
Date;
(H) eighth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each BBB Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
59
(i) to pay the amounts due and payable to the relevant Issuer
Swap Provider(s) (if any) in respect of the related Series
and Class of Class C Notes (including any swap termination
payment but excluding any Issuer Swap Excluded Termination
Amount) in accordance with the terms of the relevant Issuer
Swap Agreement(s);
(ii) to pay interest due and payable (if any) on the related
Series and Class of Class C Notes on such Monthly Payment
Date;
(I) ninth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each BB Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer
Swap Provider(s) (if any) in respect of the related Series
and Class of Class D Notes (including any swap termination
payment but excluding any Issuer Swap Excluded Termination
Amount) in accordance with the terms of the relevant Issuer
Swap Agreement(s);
(ii) to pay interest due and payable (if any) on the related
Series and Class of Class D Notes on such Monthly Payment
Date;
(J) tenth, in no order of priority among them but in proportion to the
respective amounts due in the relevant Monthly Payment Period,
towards payment of:
(i) interest amounts due to the Start-Up Loan Provider(s); and
(ii) principal amounts due to the Start-Up Loan Provider(s) (to
the extent of issuance fees received from Funding 2 under
the Global Intercompany Loan Agreement) under the Start-Up
Loan Agreement(s);
(K) eleventh, after taking account of any replenishment of the Issuer
Reserve Fund in the relevant Monthly Payment Period from Issuer
Available Principal Receipts, to credit the Issuer Reserve Ledger
up to an amount no less than the Issuer Reserve Required Amount
(such replenishment to be made on the 20th Monthly Payment Date
falling in the relevant Monthly Payment Period);
(L) twelfth, in the Monthly Payment Period in December of each year,
in no order of priority among them but in proportion to the
respective amounts due, to pay to the Issuer Account Bank an
amount equal to the amount of any debit balance in the Issuer
Transaction Account as permitted by each such Issuer Account Bank
and outstanding on the last day of such Monthly Payment Period
(such payment to be made on the 20th Monthly Payment Date falling
in such Monthly Payment Period);
(M) thirteenth, in no order of priority among them but in proportion
to the respective amounts due in the relevant Monthly Payment
Period, to pay any Issuer Swap Excluded Termination Payments to
the Issuer Swap Provider(s);
60
(N) fourteenth, in no order of priority among them but in proportion
to the respective amounts due in the relevant Monthly Payment
Period, towards payment of principal amounts due to the Start-Up
Loan Provider(s) under the Start-Up Loan Agreement(s);
(O) fifteenth, the retention by the Master Issuer of an amount equal
to 0.01% per annum of the interest received under the Global
Intercompany Loan, which will be retained by the Master Issuer as
profit (which may, subject to applicable laws, be paid to the
shareholders of the Master Issuer as a dividend, less an amount
equal to corporation tax in respect of those profits provided for
or paid at item (C) above) (such retention to be effective as of
the 20th Monthly Payment Date of the relevant Monthly Payment
Period); and
(P) last, to pay amounts due to the Issuer GIC Provider under the
Issuer Guaranteed Investment Contract (such payment to be made on
the 20th Monthly Payment Date falling in the relevant Monthly
Payment Period).
2. Distribution of Issuer Available Principal Receipts Prior to Enforcement
of the Issuer Security
On each Monthly Payment Date, all Funding 2 Available Principal Receipts
received by the Master Issuer from Funding 2 constituting principal
repayments on a Loan Tranche, will be credited to a sub-ledger (in
respect of a related Series and Class of Issuer Notes) to the Issuer
Note Principal Sub-Ledger to the Issuer Principal Ledger.
Prior to enforcement of the Issuer Security, the Master Issuer, or the
Issuer Cash Manager on its behalf, will, subject to the rules for
application of Issuer Available Principal Receipts set out in paragraph
4 of this Schedule 2, allocate the Issuer Available Principal Receipts
towards the payments and provisions in respect of amounts due on all
Monthly Payment Dates falling in such Monthly Payment Period in the
order of priority set out in the third paragraph below (in each case
only if and to the extent that payments or provisions of a higher
priority in respect of amounts due on any Monthly Payment Date falling
in such Monthly Payment Period have been made in full) (the "Issuer
Pre-Enforcement Principal Priority of Payments"). The Issuer Available
Principal Receipts so allocated will not be applied in satisfaction of
any payment or provision until the Monthly Payment Date in such Monthly
Payment Period on which such payment or provision is required to be
made.
The allocation of Issuer Available Principal Receipts towards the
payments and provisions in respect of amounts due under any item of the
Issuer Pre-Enforcement Principal Priority of Payments on all Monthly
Payment Dates falling in such Monthly Payment Period shall be made in no
order of priority but in proportion to the respective amounts due under
such item (in each case only if and to the extent that payments or
provisions of a higher priority in respect of amounts due under such
item on any Monthly Payment Date falling in such Monthly Payment Period
have been made in full).
On each Monthly Payment Date falling in the relevant Monthly Payment
Period and until enforcement of the Issuer Security pursuant to this
Deed of Charge or until such time as there are no outstanding Issuer
Secured Obligations, the amount of Issuer Available Principal Receipts
so allocated towards each payment and provision in
61
respect of amounts due on the relevant Monthly Payment Date shall be
applied in making such payment or provision in the order of priority set
out in the Issuer Pre-Enforcement Principal Priority of Payments.
The following order of priority of payments is the Issuer
Pre-Enforcement Principal Priority of Payments:
(A) to the extent that monies have been drawn from the Issuer Reserve
Fund to make Issuer Reserve Principal Payments, towards the
replenishment of the Issuer Reserve Fund up to the Issuer Reserve
Required Amount, such amount to be debited to the sub-ledger(s)
(in respect of the Series and Class(es) of Issuer Notes) to the
Issuer Note Principal Sub-Ledger (such replenishment to be made on
the 20th Monthly Payment Date falling in the relevant Monthly
Payment Period;
(B) The Class A Notes:
from principal amounts received by the Master Issuer from Funding
2 in respect of each AAA Loan Tranche (and, in respect of (ii)
below, the principal amounts received (if any) from the Issuer
Swap Provider(s) under the relevant Issuer Swap Agreement(s) in
respect of the related Series and Classes of Notes):
(i) to pay amounts due and payable (in respect of principal) on
such Monthly Payment Date to the relevant Issuer Swap
Provider(s) in respect of the related Series and Class of
Class A Notes in accordance with the terms of the relevant
Issuer Swap Agreement(s); and (ii) to pay amounts due and
payable in respect of principal (if any) on such Monthly
Payment Date on the related Series and Class of Class A
Notes;
(C) The Class B Notes:
from principal amounts received by the Master Issuer from Funding 2 in
respect of each AA Loan Tranche (and, in respect of (ii) below, the
principal amounts received (if any) from the Issuer Swap Provider(s)
under the relevant Issuer Swap Agreement(s) in respect of the related
Series and Classes of Notes):
(i) to pay amounts due and payable (in respect of principal) on
such Monthly Payment Date to the relevant Issuer Swap
Provider(s) in respect of the related Series and Class of
Class B Notes in accordance with the terms of the relevant
Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable in respect of principal (if
any) on such Monthly Payment Date on the related Series and
Class of Class B Notes;
(D) The Class M Notes:
62
from principal amounts received by the Master Issuer from Funding
2 in respect of each A Loan Tranche (and, in respect of (ii)
below, the principal amounts received (if any) from the Issuer
Swap Provider(s) under the relevant Issuer Swap Agreement(s) in
respect of the related Series and Classes of Notes):
(i) to pay amounts due and payable (in respect of principal) on
such Monthly Payment Date to the relevant Issuer Swap
Provider(s) in respect of the related Series and Class of
Class M Notes in accordance with the terms of the relevant
Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable in respect of principal (if
any) on such Monthly Payment Date on the related Series and
Class of Class M Notes;
(E) The Class C Notes:
from principal amounts received by the Master Issuer from Funding
2 in respect of each BBB Loan Tranche (and, in respect of (ii)
below, the principal amounts received (if any) from the Issuer
Swap Provider(s) under the relevant Issuer Swap Agreement(s) in
respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal) on
such Monthly Payment Date to the relevant Issuer Swap
Provider(s) in respect of the related Series and Class of
Class C Notes in accordance with the terms of the relevant
Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable in respect of principal (if
any) on such Monthly Payment Date on the related Series and
Class of Class C Notes;
(F) The Class D Notes
from principal amounts received by the Master Issuer from Funding
2 in respect of each BB Loan Tranche (and, in respect of (ii)
below, the principal amounts received (if any) from the Issuer
Swap Provider(s) under the relevant Issuer Swap Agreement(s) in
respect of the related Series and Class of Notes):
(i) to pay amounts due and payable (in respect of principal) on
such Monthly Payment Date to the relevant Issuer Swap
Provider(s) in respect of the related Series and Class of
Class D Notes in accordance with the terms of the relevant
Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable in respect of principal (if
any) on such Monthly Payment Date on the related Series and
Class of Class D Notes.
3. Distribution of Issuer Available Principal Receipts and Issuer Available
Revenue Receipts Following Enforcement of the Issuer Security
On or prior to the first day of each Monthly Payment Period, the Issuer
Security Trustee (or the Issuer Cash Manager on its behalf) will,
subject to the rules for
63
application of Issuer Available Revenue Receipts and Issuer Available
Principal Receipts set out in paragraph 4 of this Schedule 2, allocate
amounts received or recovered (excluding Swap Collateral (if any)
standing to the credit of the Issuer Swap Collateral Accounts) following
enforcement of the Issuer Security towards the payments and provisions
in respect of amounts due on all Monthly Payment Dates falling in such
Monthly Payment Period in the order of priority set out in the third
paragraph below (in each case only if and to the extent that payments or
provisions of a higher priority in respect of amounts due on any Monthly
Payment Date falling in such Monthly Payment Period have been made in
full) (the "Issuer Post-Enforcement Priority of Payments"). The amounts
so allocated will not be applied in satisfaction of any payment or
provision until the Monthly Payment Date in such Monthly Payment Period
on which such payment or provision is required to be made.
The allocation of the amounts so received or recovered towards the
payments and provisions in respect of amounts due under any item of the
Issuer Post-Enforcement Priority of Payments on all Monthly Payment
Dates falling in such Monthly Payment Period shall be made in no order
of priority but in proportion to the respective amounts due under such
item (in each case only if and to the extent that payments or provisions
of a higher priority in respect of amounts due under such item on any
Monthly Payment Date falling in such Monthly Payment Period have been
made in full).
On each Monthly Payment Date falling in the relevant Monthly Payment
Period, the amounts so received or recovered and allocated towards each
payment and provision in respect of amounts due on the relevant Monthly
Payment Date shall be applied in making such payment or provision in the
order of priority set out in the Issuer Post-Enforcement Priority of
Payments.
The following order of priority of payments is the Issuer
Post-Enforcement Priority of Payments:
(A) first, in no order of priority among them but in proportion to the
amounts due in the relevant Monthly Payment Period to pay amounts
due to the Note Trustee and the Issuer Security Trustee (and any
Receiver appointed by the Issuer Security Trustee) together with
the interest and VAT on those amounts and to provide for any
amounts then due or to become due and payable to the Note Trustee
and the Issuer Security Trustee, and the Receiver prior to the
next following Monthly Payment Period under the provisions of the
Issuer Trust Deed, this 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 in the relevant Monthly
Payment Period, the Agent Bank, the Paying Agents, the Transfer
Agent and the Registrar, together with interest and VAT on those
amounts and to provide for any costs, charges, liabilities and
expenses then due or to become due and payable to them prior to
the next following Monthly Payment Period under the provisions of
the Paying Agent and Agent Bank Agreement;
(C) third, in no order of priority among them but in proportion to the
respective amounts due in the relevant Monthly Payment Period,
towards payment of amounts (together with VAT on those amounts)
due and payable to the Issuer
64
Cash Manager under the Issuer Cash Management Agreement, to the
Corporate Services Provider under the Corporate Services Agreement
and to the Issuer Account Bank under the Issuer Bank Account
Agreement;
(D) fourth, subject to item (E) below, in no order of priority among
them but in proportion to the respective amounts due in the
relevant Monthly Payment Period, to pay amounts due to the Issuer
Swap Providers for each Series of Class A Notes (excluding any
swap termination payment);
(E) fifth, in no order of priority among them but in proportion to the
respective amounts due in the relevant Monthly Payment Period, to
pay interest due or overdue on, and to repay principal of, the
applicable series of Class A Notes and to pay any Swap Termination
Payment due to the Issuer Swap Provider for each Series of Class A
Notes (but excluding any Issuer Swap Excluded Termination Amount)
provided that if the amounts available for distribution under this
item (E) (on the assumption that no amounts are due and payable
under item (D) and no amounts are received from any Issuer Swap
Provider) would be insufficient to pay the sterling equivalent of
the amounts due and payable under this item (E), the shortfall
shall be divided amongst all such amounts on a pro rata basis and
the amount payable by the Master Issuer to the Issuer Swap
Provider in respect of any Series of Class A Notes under item (D)
above shall be reduced by the amount of the shortfall applicable
to that Series of Class A Notes;
(F) sixth, subject to item (G) below, in no order of priority among
them but in proportion to the respective amounts due in the
relevant Monthly Payment Period, to pay amounts due to the Issuer
Swap Providers for each Series of Class B Notes (excluding any
swap termination payment);
(G) seventh, in no order of priority among them but in proportion to
the respective amounts due in the relevant Monthly Payment Period,
to pay interest due or overdue on, and to repay principal of, the
applicable Series of Class B Notes and to pay any Swap Termination
Payment due to the Issuer Swap Provider for each Series of Class B
Notes (but excluding any Issuer Swap Excluded Termination Amount)
provided that if the amounts available for distribution under this
item (G) (on the assumption that no amounts are due and payable
under item (F) and no amounts are received from any Issuer Swap
Provider) would be insufficient to pay the sterling equivalent of
the amounts due and payable under this item (G), the shortfall
shall be divided amongst all such amounts on a pro rata basis and
the amount payable by the Master Issuer to the Issuer Swap
Provider in respect of the any Series of Class B Notes of under
item (F) above shall be reduced by the amount of the shortfall
applicable to that Series of Class B Notes;
(H) eighth, subject to item (I) below, in no order of priority among
them but in proportion to the respective amounts due in the
relevant Monthly Payment Period, to pay amounts due to the Issuer
Swap Providers for each Series of Class M Notes (excluding any
swap termination payment);
(I) ninth, in no order of priority among them but in proportion to the
respective amounts due in the relevant Monthly Payment Period, to
pay interest due or
65
overdue on, and to repay principal of, the applicable Series of
Class M Notes and to pay any Swap Termination Payment due to the
Issuer Swap Provider for each Series of Class M Notes (but
excluding any Issuer Swap Excluded Termination Amount) provided
that if the amounts available for distribution under this item (I)
(on the assumption that no amounts are due and payable under item
(H) and no amounts are received from any Issuer Swap Provider)
would be insufficient to pay the sterling equivalent of the
amounts due and payable under this item (I), the shortfall shall
be divided amongst all such amounts on a pro rata basis and the
amount payable by the Master Issuer to the Issuer Swap Provider in
respect of any Series of Class M Notes under item (H) above shall
be reduced by the amount of the shortfall applicable to that
Series of Class M Notes;
(J) tenth, subject to item (K) below, in no order of priority among
them but in proportion to the respective amounts due in the
relevant Monthly Payment Period, to pay amounts due to the Issuer
Swap Providers for each Series of Class C Notes (excluding any
swap termination payment);
(K) eleventh, in no order of priority among them but in proportion to
the respective amounts due in the relevant Monthly Payment Period,
to pay interest due or overdue on, and to repay principal of, the
applicable Series of Class C Notes and to pay any Swap Termination
Payment due to the Issuer Swap Provider for each Series of Class C
Notes (but excluding any Issuer Swap Excluded Termination Amount)
provided that if the amounts available for distribution under this
item (K) (on the assumption that no amounts are due and payable
under item (J) and no amounts are received from any Issuer Swap
Provider) would be insufficient to pay the sterling equivalent of
the amounts due and payable under this item (K), the shortfall
shall be divided amongst all such amounts on a pro rata basis and
the amount payable by the Master Issuer to the Issuer Swap
Provider in respect of any Series of Class C Notes under item (J)
above shall be reduced by the amount of the shortfall applicable
to that Series of Class C Notes;
(L) twelfth, subject to item (M) below, in no order of priority among
them but in proportion to the respective amounts due in the
relevant Monthly Payment Period, to pay amounts due to the Issuer
Swap Providers for each Series of Class D Notes (excluding any
swap termination payment);
(M) thirteenth, in no order of priority among them but in proportion
to the respective amounts due in the relevant Monthly Payment
Period, to pay interest due or overdue on, and to repay principal
of, the applicable Series of Class D Notes and to pay any Swap
Termination Payment due to the Issuer Swap Provider for each
Series of Class D Notes (but excluding any Issuer Swap Excluded
Termination Amount) provided that if the amounts available for
distribution under this item (M) (on the assumption that no
amounts are due and payable under item (L) and no amounts are
received from any Issuer Swap Provider) would be insufficient to
pay the sterling equivalent of the amounts due and payable under
this item (M), the shortfall shall be divided amongst all such
amounts on a pro rata basis and the amount payable by the Master
Issuer to the Issuer Swap Provider in respect of any Series of
Class D
66
Notes under item (L) above shall be reduced by the amount of the
shortfall applicable to that Series of Class D Notes;
(N) fourteenth, in the Monthly Payment Period falling in December of
each year, in no order of priority among them but in proportion to
the respective amounts due, to pay to the Issuer Account Bank an
amount equal to the amount of any debit balance in the Issuer
Transaction Account as permitted by the Issuer Account Bank and
outstanding on the last day of such Monthly Payment Period (such
payment to be made on the 20th Monthly Payment Date falling in
such Monthly Payment Period);
(O) fifteenth, in no order of priority among them but in proportion to
the respective amounts due in the relevant Monthly Payment Period,
towards payment of:
(i) interest amounts due to the Start-Up Loan Provider(s); and
(ii) principal amounts due to the Start-Up Loan Provider(s) (to
the extent of issuance fees received from Funding 2 under
the Global Intercompany Loan Agreement) under the Start-Up
Loan Agreement(s);
(P) sixteenth, in no order of priority among them but in proportion to
the respective amounts due in the relevant Monthly Payment Period,
to pay any Issuer Swap Excluded Termination Payments to the Issuer
Swap Providers;
(Q) seventeenth, in no order of priority among them but in proportion
to the respective amounts due in the relevant Monthly Payment
Period, towards payment of principal amounts due to the Start-Up
Loan Provider(s) under the Start-Up Loan Agreements; and
(R) last, to pay any amount remaining following the application of
principal and revenue set forth in items (A) through (Q) above, to
the Master Issuer.
4. Rules for application of Issuer Available Revenue Receipts and Issuer
Available Principal Receipts following the occurrence of a Pass-Through
Trigger Event during a Monthly Payment Period
If, at any time during a Monthly Payment Period, a Pass-Through Trigger
Event occurs, then:
(a) the Issuer Available Revenue Receipts and Issuer Available
Principal Receipts previously allocated on the first day of such
Monthly Payment Period towards the making of interest and
principal payments on Notes and the making of payments to the
Issuer Swap Providers (including any Swap Termination Payments but
excluding any Issuer Swap Excluded Termination Amount), in each
case then due on all Monthly Payment Dates falling in such Monthly
Payment Period shall, notwithstanding the occurrence of the
Pass-Through Trigger Event and to the extent not already so
applied, be applied on such Monthly Payment Dates in making such
payments and provisions;
(b) all remaining Issuer Available Revenue Receipts and Issuer
Available Principal Receipts for such Monthly Payment Period
(excluding, for the
67
avoidance of doubt, Issuer Available Revenue Receipts and Issuer
Available Principal Receipts previously applied or allocated on
Monthly Payment Dates falling in the relevant Monthly Payment
Period in making the payments or provisions to which they had been
allocated) ("Remaining Issuer Available Revenue Receipts" and
"Remaining Issuer Available Principal Receipts" respectively) will
be allocated towards revenue and principal payments or provisions,
as applicable, that would have been due on all Monthly Payment
Dates falling in such Monthly Payment Period if the Pass-Through
Trigger Event had occurred prior to such Monthly Payment Period
(excluding, for this purpose, any payment or provision due in such
Monthly Payment Period which has been made or, in accordance with
sub-paragraph (a) above, will be made) in the order of priority
set out in the Issuer Pre-Enforcement Revenue Priority of
Payments, the Issuer Pre-Enforcement Principal Priority of
Payments or the Issuer Post-Enforcement Priority of Payments, as
applicable (in each case only if and to the extent that payments
or provisions of a higher priority in respect of amounts due on
any Monthly Payment Date falling in such Monthly Payment Period
have been made in full); and
(c) on each Monthly Payment Date falling in the relevant Monthly
Payment Period after the occurrence of the Pass-Through Trigger
Event and until such time as there are no outstanding Issuer
Secured Obligations, the Remaining Issuer Available Revenue
Receipts and/or Remaining Issuer Available Principal Receipts
allocated in accordance with sub-paragraph (b) above towards a
payment or provision due on such Monthly Payment Date shall be
applied, in accordance with the Issuer Pre-Enforcement Revenue
Priority of Payments, the Issuer Pre-Enforcement Principal
Priority of Payments or the Issuer Post-Enforcement Priority of
Payments, as applicable, in making such payments and provisions.
Any Remaining Issuer Available Revenue Receipts and/or Remaining
Issuer Available Principal Receipts allocated in accordance with
sub-paragraph (b) above towards an amount that would have been due
on any Monthly Payment Date in the relevant period falling prior
to the occurrence of the Pass-Through Trigger Event, shall be
applied in payment of such amount on the corresponding Monthly
Payment Date falling in the next following Monthly Payment Period
(and shall be taken into account in determining the allocation and
application of other Issuer Available Revenue Receipts and Issuer
Available Principal Receipts in such next following Monthly
Payment Period).
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SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT
To: [Addressee(s)]
Granite Master Issuer plc - Assignment of rights under Issuer Transaction
Documents
[o]
Dear Sirs,
Terms and expressions used in this letter are as defined in a deed of charge
(the "Issuer Deed of Charge") between Granite Master Issuer plc (the "Master
Issuer"), The Bank of New York (the "Issuer Security Trustee") and others
dated [o].
We hereby give notice to each addressee of this letter that by assignment(s)
under or pursuant to the Issuer Deed of Charge, the Master Issuer has assigned
absolutely, by way of security for the payment and performance of certain
obligations of the Master Issuer described in the Issuer Deed of Charge (the
"Issuer Secured Obligations"), to the Issuer Security Trustee all its right,
title, benefit and interest under the [Agreement(s)] (the "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 Master Issuer
thereunder, all payments received by the Master 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 Issuer Property").
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 Master Issuer
under the aforesaid agreements to or to the order of the Issuer
Security 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 Issuer Property.
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Notwithstanding the assignments made by the Master Issuer and referred to in
this notice, the Issuer Security Trustee hereby confirms and you further
acknowledge that:
(a) you may continue to make all payments becoming due to the Master
Issuer in respect of the Relevant Issuer Property in the manner
envisaged by the relevant Issuer Transaction Document(s); and
(b) the Master Issuer shall be entitled to exercise its rights, powers
and discretions and perform its obligations in relation to the
Relevant Issuer Property and under the Issuer Transaction
Documents in accordance with the provisions of the Issuer
Transaction Documents,
but only until such time as you receive notice from the Issuer Security
Trustee to the contrary or to the effect that the security created under the
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 Master Issuer in respect of the Relevant Issuer Property in accordance
with any instructions received from the Issuer Security Trustee.
This letter is governed by, and shall be construed in accordance with, English
law.
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 MASTER ISSUER PLC )
by: )
Authorised Signatory
Name:
Title:
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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 Issuer Property.
In respect of the [Agreement]:
For and on behalf of )
[Party to Issuer Transaction Document] )
by: )
Authorised Signatory
Name:
Title:
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SCHEDULE 4
ISSUER RESERVE FUND
1. Utilisation of Issuer Reserves
1.1 Prior to the service of an Issuer Enforcement Notice, amounts standing
to the credit of the Issuer Reserve Fund may be utilised:
(a) through inclusion in the calculation of Issuer Available Revenue
Receipts, to help meet, and thereby satisfy, any deficit in Issuer
Available Revenue Receipts for interest and fees under the Issuer
Notes;
(b) to help meet expenses in connection with the issue of Issuer Notes
by the Master Issuer; and
(c) through inclusion in the calculation of Issuer Available Principal
Receipts, to help meet, and thereby satisfy, any deficit in Issuer
Available Principal Receipts for:
(i) prior to the occurrence of a Trigger Event, repayment of
principal due and payable in respect of the Original Bullet
Redemption Notes (which are Class A Notes); and
(ii) on or after the occurrence of a Trigger Event, repayment of
principal due and payable in respect of the Original Bullet
Redemption Notes (which are Class A Notes) on their
respective Final Maturity Dates only.
1.2 Following the service of an Issuer Enforcement Notice, to the extent not
applied on a Monthly Payment Date in accordance with paragraph 1 above,
amounts standing to the credit of the Issuer Reserve Ledger shall only
be applied in making payments of principal due under the Issuer Notes on
any Monthly Payment Date.
2. Adjustment of Issuer Reserves
2.1 The Master Issuer may, at any time, adjust:
(a) the Issuer Reserve Minimum Amount or the method of computing the
Issuer Reserve Minimum Amount, without the consent of any Issuer
Secured Creditors, so long as it has an opinion of counsel that
for US federal income tax purposes:
(i) the change will not adversely affect the tax
characterisation as debt of any outstanding Series and Class
of Issuer Notes that were characterised as debt at the time
of their issuance; and
(ii) such change will not cause or constitute an event in which
gain or loss would be recognised by any holder of such
Issuer Notes;
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(b) the Programme Reserve Required Percentage or the method of
computing the Programme Reserve Required Amount, without the
consent of any Issuer Secured Creditors, so long as the Issuer
Security Trustee and the Master Issuer obtain confirmation from
the Rating Agencies that such adjustments will not cause a
reduction, qualification or withdrawal of the ratings of any
outstanding Issuer Notes.
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SCHEDULE 5
FORM OF ACCESSION UNDERTAKING
THIS DEED is made on [o]
BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668) 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
Master 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 (1) Issuer Security Trustee and (2) Note
Trustee;
(3) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX, in its capacity as (1) Principal
Paying Agent, (2) Agent Bank, (3) Registrar, (4) Transfer Agent and (5)
Account Bank;
(4) CITIBANK, N.A., acting through its office at 000 Xxxx Xxxxxx, 14th
Floor, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, X.X.X., in its
capacity as US Paying Agent;
(5) 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 (1) Issuer Cash Manager, (2) Issuer GIC Provider and (3)
Start-Up Loan Provider; and
(6) 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; and
(7) [o] (in its capacity as [o], the "New Issuer Secured Creditor".
NOW THIS DEED WITNESSES AS FOLLOWS
WHEREAS
(A) Pursuant to the terms of [description of agreement] (the "Agreement")
dated [o] made between the Master Issuer and the New Issuer Secured
Creditor, the Master Issuer has agreed to [description of nature of
obligations of the Master Issuer under the Agreement].
(B) The Master Issuer has agreed to provide the Issuer Security Trustee with
the benefit of the security described in the Issuer Deed of Charge to
secure the Master Issuer's obligations to the Issuer Secured Creditors.
(C) The terms of the Issuer Deed of Charge permit the Master Issuer to
secure its obligations to a New Issuer Secured Creditor thereunder.
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(D) The New Issuer Secured Creditor has agreed to enter into this Deed to
accede to the provisions of the Issuer Deed of Charge.
(E) The Issuer Secured Creditors have agreed to enter into this Deed to,
inter alia, acknowledge and agree to such accession and to permit any
consequential changes to the Issuer Priority of Payments set out in the
Issuer Deed of Charge as are required and any other amendment as may be
required to give effect to this Accession Undertaking.
1. INTERPRETATION
The Programme Master Definitions Schedule signed for the purposes of
identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx LLP on 19
January, 2005 (as the same may have been and may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
is expressly and specifically incorporated into and shall apply to this
Deed.
2. REPRESENTATIONS AND WARRANTIES
2.1 The New Secured Creditor hereby represents and warrants to the Issuer
Security Trustee and each of the Issuer Secured Creditors in respect of
itself that as of the date of this Deed pursuant to the terms of the
Agreement, the Master Issuer has agreed to pay to the New Secured
Creditor the amount (if any) [description in relation to the Agreement].
2.2 The Master Issuer hereby represents and warrants to the Issuer Security
Trustee and each of the Issuer Secured Creditors that as at the date of
this Deed, the conditions to issuing further Issuer Notes set out in the
Programme Agreement are satisfied;
3. ACCESSION
In consideration of the New Issuer Secured Creditor being accepted as an
Issuer Secured Creditor for the purposes of the Issuer Deed of Charge by
the parties thereto as form the date of this Deed, the New Issuer
Secured Creditor:
(a) confirms that as from [o], it intends to be a party to the Issuer
Deed of Charge as an Issuer Secured Creditor;
(b) undertakes to comply with and be bound by all of the provisions of
the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule [o]th
Deed of Amendment (as the same may have been and may be amended,
varied or supplemented from time to time) and the Issuer Deed of
Charge in its capacity as an Issuer Secured Creditor, as if it had
been an original party thereto.
(c) undertakes to perform, comply with and be bound by all of the
provisions of the Issuer Deed of Charge in its capacity as a
Issuer Secured Creditor, as if it had been an original party
thereto as provided in [relevant clauses relating to Issuer
Priority of Payment]; and
(d) agrees that the Issuer Security Trustee shall be the Issuer
Security Trustee of the Deed of Charge for all Issuer Secured
Creditors upon and subject to the
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terms set out in the Issuer Deed of Charge.
4. SCOPE OF THE DEED OF CHARGE
The Master Issuer, the New Issuer Secured Creditor and the Issuer
Security Trustee hereby agree that for the relevant purposes under the
Issuer Deed of Charge and the Master Definitions Schedule as amended and
restated by (and appearing as Appendix 1 to) the Master Definitions
Schedule [o]th Deed of Amendment:
(a) the Agreement shall be treated as an Issuer [Transaction
Document]; and
(b) the New Issuer Secured Creditor shall be treated as an Issuer
Secured Creditor.
5. AMENDMENT TO THE ISSUER PRIORITY OF PAYMENTS
To the extent necessary, the Issuer Secured Creditors agree to amend and
restate the Issuer Priority of Payments set out in this Deed.
6. APPLICATION
Prior to and following enforcement of the Security all amounts at any
time held by the Master Issuer, the Issuer Cash Manager or the Issuer
Security Trustee in respect of the security created under or pursuant to
this Deed shall be held and/or applied by such person subject to and in
accordance with the relevant provisions of the Issuer Cash Management
Agreement and the Issuer Deed of Charge.
7. NOTICES
Any notice or communication under or in connection with this Deed, the
Issuer Deed of Charge or the Programme Master Definitions Schedule shall
be given in the manner and at the times set out in Clause 23 (Notices)
of the Issuer Deed of Charge to the addresses given in this Clause or at
such other address as the recipient may have notified to the other
parties hereto and/or thereto in writing.
The address referred to in this Clause 7 for the New Issuer Secured
Creditor is:
[o]
For the attention of: [o]
Telephone: [o]
Facsimile: [o]
or such other address and/or numbers as the New Issuer Secured Creditor
may notify to the parties to the Deed of Charge in accordance with the
provisions thereof.
8. GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with,
English law.
DULY EXECUTED AND DELIVERED AS A DEED by each of the parties hereto on its
behalf on the date appearing on page 1.
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New Issuer Secured Creditor
Executed by
[o]
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:_________________________________
The Master Issuer
Executed by
GRANITE MASTER ISSUER 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:_________________________________
By:___________________________________
for and on behalf of LDC
Securitisation Director No. 2 Limited
- Director
The Note Trustee Name:_________________________________
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:_________________________________
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The Issuer Security 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:_________________________________
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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 Issuer Cash Manager
Executed by
NORTHERN ROCK PLC
as its deed as follows: By:___________________________________
Signed for and on its behalf by one of its duly authorised Duly Authorised Attorney/Signatory
attorneys/signatories
Name:_________________________________
Signature:
Witness
Full Name:
Occupation: Solicitor
Address: c/o Sidley Xxxxxx Xxxxx & Xxxx
Woolgate Exchange
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
The Corporate Service Provider
Executed by
LAW DEBENTURE CORPORATE SERVICES LIMITED
as its deed as follows: By:___________________________________
Director
Signed for and on its behalf by one of its
directors and by another of its directors/its Name:_________________________________
secretary
By:___________________________________
Director/Secretary
Name:_________________________________
