Dated 19 January, 2005 GRANITE FINANCE FUNDING 2 LIMITED as Funding 2 GRANITE MASTER ISSUER PLC as Master Issuer THE BANK OF NEW YORK as Funding 2 Security Trustee -and - CITIBANK, N.A. as Agent Bank
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Exhibit
4.1.1
EXECUTION
VERSION
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Dated
19 January, 2005
GRANITE
FINANCE FUNDING 2 LIMITED
as
Funding 2
as
Master
Issuer
THE
BANK OF NEW YORK
as
Funding 2 Security Trustee
-and
-
CITIBANK,
N.A.
as
Agent
Bank
THIRD
AMENDED GLOBAL INTERCOMPANY LOAN AGREEMENT
CONTENTS
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1.
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Interpretation
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1
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2.
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The
Facility
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1
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3.
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The
Loan Tranches
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1
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4.
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Purpose
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3
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5.
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Limited
Recourse
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3
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6.
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Advance
of Loan Tranches
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4
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7.
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Interest
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5
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8.
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Repayment
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9
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9.
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Prepayment
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10
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10.
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Taxes
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11
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11.
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Illegality
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11
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12.
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Mitigation
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11
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13.
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Representations
and Warranties of Funding 2
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12
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14.
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Covenants
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14
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15.
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Default
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16
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16.
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Default
Interest and Indemnity
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18
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17.
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Payments
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19
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18.
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Entrenched
Provisions
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19
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19.
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Further
Provisions
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20
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20.
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Redenomination
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21
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21.
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Notices
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22
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22.
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Governing
Law and Submission to Jurisdiction
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22
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SCHEDULE
1 FORM OF LOAN TRANCHE SUPPLEMENT
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24
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i
THIS
AGREEMENTIS MADE ON 19 JANUARY, 2005 AND AMENDED AND RESTATED
PURSUANT TO DEEDS OF AMENDMENT AND RESTATEMENT DATED 19 JANUARY, 2007, 17 MAY,
2007 AND 17 SEPTEMBER, 2007 BETWEEN:
BETWEEN:
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(1)
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GRANITE
FINANCE FUNDING 2 LIMITED (registered number 5249387), 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
Funding 2;
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(2)
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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;
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(3)
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THE
BANK OF NEW YORK, a New York banking
corporation acting through its office at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX in its capacity as Funding 2 Security Trustee;
and
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(4)
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CITIBANK,
N.A., acting through its office at Citigroup Centre, Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX in its capacity as Agent
Bank.
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WHEREAS:
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(A)
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From
time to time, the Master Issuer will issue Notes pursuant to the
Programme.
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(B)
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The
Master Issuer has agreed that it will lend the proceeds (or, as
applicable, the sterling equivalent thereof) of any issue of Notes
by it
to Funding 2.
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(C)
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This
Agreement sets out the terms and conditions with respect to lending
by the
Master Issuer of the proceeds of the issue of Notes to Funding
2.
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1.
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Interpretation
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1.1
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The
provisions of 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 have been and may be
amended, varied or supplemented from time to time with the consent
of the
parties hereto) are expressly and specifically incorporated into
and shall
apply to this Agreement.
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2.
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The
Facility
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2.1
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Subject
to the terms of this Agreement, the Master Issuer agrees to make
available
to Funding 2 a facility in an aggregate amount equal to the Total
Credit
Commitment (the "Global Loan Facility"). On
the London Business Day prior to each Closing Date, the Master Issuer
shall offer Loan Tranches to Funding 2 under the Global Loan Facility
that
correspond to each Series and Class of Notes to be issued by the
Master
Issuer on the following Closing Date. Each Loan Tranche shall
be denominated in Sterling. Subject to the terms of this
Agreement, on each Closing Date Funding 2 shall accept the
offer.
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3.
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The
Loan Tranches
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1
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3.1
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Conditions
precedent: Save as the Master Issuer, Funding 2 and the
Funding 2 Security Trustee may otherwise agree, each Loan Tranche
will not
be available for utilisation on a Closing Date
unless:
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(a)
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the
related Series and Class of Notes has been issued by the Master Issuer
on
the relevant Closing Date and the subscription proceeds thereof have
been
received by or on behalf of the Master
Issuer;
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(b)
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not
later than 2.00 pm (London time) on the relevant Closing Date, Funding
2
and the Master Issuer have signed a Loan Tranche Supplement (generally
in
the form set out in Schedule 1 (Form of Loan Tranche Supplement))
which shall oblige Funding 2 to borrow the whole amount stated in
the Loan
Tranche Supplement on the Closing Date subject to the terms of this
Agreement;
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(c)
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Funding
2 has confirmed in the applicable Loan Tranche Supplement
that:
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(i)
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no
Funding 2 Intercompany Loan Event of Default has occurred and is
continuing unremedied (if capable of remedy) or unwaived or would
result
from the making of such Loan
Tranche;
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(ii)
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the
representations set out in Clause 13 (Representations and
Warranties of Funding 2) are true on and as of the Closing Date by
reference to the facts and circumstances then
existing;
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(iii)
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there
is no debit balance on the Funding 2 Principal Deficiency
Ledger;
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(d)
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Funding
2 has delivered to the Funding 2 Security Trustee a solvency certificate
in form and substance satisfactory to the Funding 2 Security
Trustee;
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(e)
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the
Master Issuer has confirmed in the applicable Loan Tranche Supplement
that:
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(i)
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no
Issuer Event of Default has occurred and is continuing unremedied
(if
capable of remedy) or unwaived or would result from the making of
such
Loan Tranche; and
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(ii)
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the
aggregate amount of the Loan Tranches to be made on such Closing
Date and
any Loan Tranches outstanding on such Closing Date do not exceed
the Total
Credit Commitment;
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(f)
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each
of the Rating Agencies has confirmed in writing to the Funding 2
Security
Trustee and the Issuer Security Trustee that there will not, as a
result
of the Master Issuer issuing any Notes, be any reduction, withdrawal
or
qualification of the then current ratings by the Rating Agencies
of any
existing Notes; and
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(g)
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all
other conditions precedent as may be specified in the applicable
Loan
Tranche Supplement have been
satisfied.
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2
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4.
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Purpose
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4.1
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Purpose
and application of a Loan Tranche: The proceeds of each Loan
Tranche may only be used by Funding 2
either:
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(a)
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to
make a Contribution (excluding a Deferred Contribution) to the Mortgages
Trustee (which shall increase the Funding 2 Share of the Trust Property
in
accordance with the terms of the Mortgages Trust Deed);
and/or
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(b)
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to
refinance the existing debt of Funding 2, including any existing
Loan
Tranche (in whole or in part);
and/or
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(c)
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to
fund or partly fund or replenish the Funding 2 Reserve Fund or make
a
deposit into the Funding 2 GIC
Account.
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4.2
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Application
of amounts: Without prejudice to the obligations of Funding
2 under this Clause 4, neither the Funding 2
Security Trustee nor any of the Funding 2 Secured Creditors shall
be
obliged to concern themselves as to the application of amounts raised
by
Funding 2 under a Loan Tranche.
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5.
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Limited
Recourse
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5.1
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Recourse
limited to available funds: Subject to Clause 5.2
(Shortfall on Final Repayment Date) but notwithstanding the terms
of any other provision in this Agreement or any other Transaction
Document, each of the Master Issuer and the Funding 2 Security Trustee
agree that the liability of Funding 2 in respect of its obligations
to
repay principal and pay interest or any other amounts due under this
Agreement or for any breach of any other representation, warranty,
covenant or undertaking of Funding 2 under this Agreement shall be
limited
to:
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(a)
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in
respect of amounts payable prior to the enforcement of the Funding
2
Security:
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(i)
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the
amount of Funding 2 Available Revenue Receipts in respect of interest,
fees or other amounts (but excluding principal) payable by Funding
2 to
the Master Issuer, but only to the extent of an amount of Funding
2
Available Revenue Receipts remaining after paying amounts of a higher
order of priority and providing for amounts payable pari passu
therewith in accordance with, and subject to, the order of priority
set
out in the Funding 2 Pre-Enforcement Revenue Priority of Payments;
and
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(ii)
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the
amount of Funding 2 Available Principal Receipts in respect of principal
payable by Funding 2 to the Master Issuer, but only to the extent
of the
amount of Funding 2 Available Principal Receipts remaining after
paying
amounts of a higher priority and providing for amounts pari passu
therewith, and subject to, the rules set forth in the Funding 2
Pre-Enforcement Principal Priority of Payments;
and
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(b)
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in
respect of amounts payable following enforcement of the Funding 2
Security, amounts received or recovered by Funding 2, the Funding
2
Security Trustee or any Receiver appointed on behalf of the Funding
2
Security
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3
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Trustee,
but only to the extent of such amount thereof as remains after paying
amounts of a higher order of priority and providing for amounts payable
pari passu therewith in accordance with, and subject to, the
order of priority set out in the Funding 2 Post-Enforcement Priority
of
Payments,
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provided
that the application of such amounts set forth in sub-clauses (a) and (b) above
to the discharge of Funding 2's obligations under this Agreement shall be
subject to the terms of the Cash Management Agreement and the Funding 2 Deed
of
Charge.
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5.2
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Shortfall
on Final Repayment Date: To the extent that on
the latest occurring Final Repayment Date of any Loan Tranche advanced
under this Agreement there is a shortfall between all amounts (including
interest and principal) payable under this Agreement and the amounts
available therefor, that shortfall shall become immediately due and
payable to the Master Issuer. Following enforcement of the
Funding 2 Security and distribution of all enforcement proceeds in
accordance with the Funding 2 Deed of Charge, all outstanding claims
that
the Master Issuer may otherwise have against Funding 2 will be
extinguished.
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6.
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Advance
of Loan Tranches
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6.1
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Loan
Tranches correspond to Series and Classes of
Notes: Each Loan Tranche shall be identified by
reference to the relevant Series and Class of Notes that is used
to fund
it, as set out in the applicable Loan Tranche Supplement. For
instance, the Series 05-1 Class A1 Notes shall fund the Series 05-1
AAA
(Class A1) Loan Tranche.
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6.2
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Loan
Tranche Supplement: The Loan Tranche Supplement
to be signed on each Closing Date in accordance with Clause 31.(b)
shall
record, amongst other things, the amount of each Loan Tranche to
be made
on such Closing Date.
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6.3
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Single
drawing of the Loan Tranche: On satisfaction of the
conditions set out in Clause 3.1 (Conditions Precedent), the
Master Issuer shall make the applicable Loan Tranches available to
Funding
2 on the applicable Closing Date. The aggregate of the Loan
Tranches to be made on such Closing Date will only be available for
drawing in one amount by Funding 2 on the such Closing
Date.
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6.4
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Redemption/Payment
Basis: Each Loan Tranche may be an Index-Linked
Redemption Loan Tranche, a Bullet Loan Tranche, a Scheduled Repayment
Loan
Tranche, a Controlled Repayment Loan Tranche, a Pass-Through Loan
Tranche
or a combination of any of the foregoing, depending upon the
Redemption/Payment Basis shown in the applicable Loan Tranche
Supplement.
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6.5
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Issuance
Fees: The Master Issuer
shall, on behalf of Funding 2 and itself, pay the fees and expenses
incurred by Funding 2 and/or itself in connection with the issuance
of
Notes, the making of Loan Tranches by it to Funding 2 and the acquisition
by Funding 2 of an additional share in the Trust Property using the
proceeds of such Loan Tranches.
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6.6
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Monthly
Payment Dates and Loan Payment Dates: The Loan
Payment Dates for any Loan Tranche shall be the Monthly Payment Dates
specified as such for such Loan Tranche in the applicable Loan Tranche
Supplement.
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4
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7.
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Interest
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7.1
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Loan
Tranche Interest Periods: The first Loan Tranche
Interest Period for a Loan Tranche will commence on (and include)
the Loan
Tranche Interest Commencement Date for such Loan Tranche and end
on (but
exclude) the first Loan Payment Date for such Loan Tranche falling
thereafter. Each subsequent Loan Tranche Interest Period for
such Loan Tranche shall commence on (and include) a Loan Payment
Date for
such Loan Tranche and end on (but exclude) the next following Loan
Payment
Date for such Loan Tranche.
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7.2
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Day
Count Fraction: Whenever it is necessary to compute an
amount of interest in respect of a Loan Tranche for any period (including
any Loan Tranche Interest Period for such Loan Tranche), such interest
shall be calculated on the basis of actual days elapsed in a 365
day
year.
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7.3
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Determination
of Intercompany Loan Tranche Interest Amount: In relation to
any Loan Tranche, the rate of interest payable (the "Loan Tranche
Rate of Interest") and the relevant Sterling interest amount
(each an "Loan Tranche Interest Amount") for a Loan
Tranche shall be determined on the basis of the provisions set out
below:
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(a)
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On
the Loan Tranche Interest Reset Date for such Loan Tranche, the Agent
Bank
will determine the Relevant Screen Rate for such Loan Tranche for
the
relevant Loan Tranche Interest Period at or about 11.00 am London
time.
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If
the
Relevant Screen Rate for such Loan Tranche is unavailable, the Agent Bank will
request the principal London Office of each of the Reference Banks to provide
the Agent Bank with its offered quotation to leading Banks for Sterling Deposits
of £10,000,000 for the Relevant Screen Rate for such Loan Tranche in the London
inter-bank market as at or about 11.00 am London time on such Loan Tranche
Interest Reset Date.
The
Loan
Tranche Rate of Interest for such Loan Tranche for the relevant Loan Tranche
Interest Period shall be the aggregate of:
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(i)
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the
Relevant Margin for such Loan Tranche;
and
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(ii)
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the
Relevant Screen Rate for such Loan Tranche or, if the Relevant Screen
Rate
is unavailable, the arithmetic mean (or, in the case of the initial
Loan
Tranche Interest Determination Date for such Loan Tranche, the linear
interpolation of the arithmetic mean) of such offered quotations
by the
Reference Banks (rounded upwards, if necessary, to five decimal
places).
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(b)
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If
on any Loan Tranche Interest Reset Date for such Loan Tranche, the
Relevant Screen Rate for such Loan Tranche is unavailable and only
two or
three of the Reference Banks provide offered quotations, the Loan
Tranche
Rate of Interest for such Loan Tranche for the relevant Loan Tranche
Interest Period shall be determined in accordance with the provisions
of
sub-paragraph (a) above on the basis of the offered quotations of
those
Reference Banks providing such
quotations.
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5
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(c)
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If,
on any such Loan Tranche Interest Reset Date for such Loan Tranche,
only
one or none of the Reference Banks provides the Agent Bank with such
an
offered quotation, the Agent Bank shall forthwith consult with the
Funding
2 Security Trustee for the purposes of agreeing two banks (or, where
one
only of the Reference Banks provided such a quotation, one additional
bank) to provide such a quotation or quotations to the Agent Bank
(which
bank or banks are in the opinion of the Funding 2 Security Trustee
suitable for such purpose) and the Loan Tranche Rate of Interest
for such
Loan Tranche for the relevant Loan Tranche Interest Period in question
shall be determined, as aforesaid, on the basis of the offered quotations
of such banks as so agreed (or, as the case may be, the offered quotations
of such bank as so agreed and the relevant Reference
Bank).
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(d)
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If
no such bank or banks is or are so agreed or such bank or banks as
so
agreed does or do not provide such a quotation or quotations, then
the
Loan Tranche Rate of Interest for such Loan Tranche for the relevant
Loan
Tranche Interest Periods shall be the Loan Tranche Rate of Interest
in
relation to such Loan Tranche in effect for the immediately preceding
Loan
Tranche Interest Period for such Loan Tranche to which sub-paragraph
(a)
above shall have applied but taking account of any change in the
Relevant
Margin for such Loan Tranche.
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(e)
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There
will be no minimum or maximum Loan Tranche Rate of Interest for such
Loan
Tranche.
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(f)
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The
Agent Bank shall: (i) as soon as practicable on each Loan Tranche
Interest
Reset Date for such Loan Tranche, determine and notify the Master
Issuer,
Funding 2, the Cash Manager and the Funding 2 Security Trustee of
the Loan
Tranche Rate of Interest for such Loan Tranche for the relevant Loan
Tranche Interest Periods and (ii) as soon as practicable on each
Loan
Interest Determination Date for such Loan Tranche determine and notify
the
Master Issuer, Funding 2, the Cash Manager and the Funding 2 Security
Trustee of the Loan Tranche Interest Amount payable in respect of
such
Loan Tranche for the relevant Loan Tranche Interest
Period.
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(g)
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The
Loan Tranche Interest Amount for such Loan Tranche shall be determined
by
applying the relevant Loan Tranche Rate of Interest for such Loan
Tranche
to the Outstanding Principal Balance of such Loan Tranche, multiplying
the
sum by the day count fraction described in Clause 7.2 (Day Count
Fraction) and rounding the resultant figure to the nearest xxxxx
(half a xxxxx being rounded
upwards).
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(h)
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If
the Agent Bank does not at any time for any reason determine the
Loan
Tranche Rate of Interest and the Loan Tranche Interest Amount for
such
Loan Tranche in accordance with sub-clauses (a) to (g) above, the
Funding
2 Security Trustee shall (subject to it being indemnified to its
satisfaction) determine the Loan Tranche Rate of Interest and Loan
Tranche
Interest Amount for such Loan Tranche and any such determination
shall be
deemed to have been made by the Agent
Bank.
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6
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(i)
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All
notifications, opinions, determinations, certificates, calculations
and
decisions given, expressed, made or obtained for the purposes of
this
Clause 7, whether by the Agent Bank or the Funding 2 Security Trustee,
shall (in the absence of wilful default, bad faith or manifest error)
be
binding on Funding 2, the Master Issuer, the Cash Manager, the Agent
Bank,
the Funding 2 Security Trustee and (in such absence as aforesaid)
no
liability to Funding 2 shall attach to such Master Issuer, the Agent
Bank,
the Funding 2 Security Trustee or the Cash Manager in connection
with the
exercise or non-exercise by them or any of them of their powers,
duties
and discretions hereunder.
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(j)
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In
the event of the then Agent Bank being unwilling to act as the Agent
Bank,
or resigning pursuant to the Issuer Paying Agent and Agent Bank Agreement,
the Master Issuer shall, with the approval of the Issuer Security
Trustee,
appoint a successor Agent Bank. If the Master Issuer shall fail to
appoint
a successor Agent Bank, the Agent Bank shall appoint such other bank
as
may be previously approved in writing by the Issuer Security Trustee
to
act as the Agent Bank. The resignation of the Agent Bank will not
take
effect until a successor approved by the Issuer Security Trustee
has been
appointed.
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7.4
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Payment
on Loan Payment Dates: Subject to Clause 5.1
(Recourse limited to available funds), Funding 2 shall pay
interest in respect of a Loan Tranche on the Loan Payment Dates specified
for such Loan Tranche in the applicable Loan Tranche
Supplement.
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7.5
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Deferred
Interest: Subject to Clause 5.2 (Shortfall on Final
Repayment Date), to the extent that there are insufficient funds
available to pay interest on a Loan Tranche on any Loan Payment Date
for
such Loan Tranche, the shortfall in the interest amount payable will
not
then fall due but will instead be due on the following Loan Payment
Date
for such Loan Tranche on which sufficient funds are available to
pay such
interest, and pending such payment, will accrue interest at the rate
specified for such Loan Tranche in the applicable Loan Tranche
Supplement.
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7.6
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Certain
Fees: In addition to the interest and principal
payments to be made by Funding 2 in respect of a Loan Tranche under
this
Clause 7 and Clause 8 (Repayment), respectively, on each Loan
Payment Date that is a 20th Monthly Payment Date (or, in respect
of (i)
the payment to be made as set forth in sub-clause (a) below, on the
Closing Date for such Loan Tranche, (ii) the payments to be made
as set
forth in sub-clause (b) below, on the Loan Payment Dates as agreed
between, as applicable, the Note Trustee and the Master Issuer (in
accordance with Clause 9 (Remuneration and Indemnification of the Note
Trustee) of the Issuer Trust Deed) or the Issuer Security Trustee and
the Master Issuer (in accordance with Clause 17 (Remuneration and
Indemnification of the Issuer Security Trustee) of the Issuer Deed of
Charge), and (iii) the payment to be made as set forth in sub-clause
(h)
below, on a Loan Payment Date for such Loan Tranche) or on any other
date
on which the Master Issuer notifies Funding 2, but subject to Clause
5.1
(Recourse limited to available funds), Funding 2 shall pay to the
Master Issuer for same day value to the Issuer Transaction Account
a fee
for the provision of the Global Loan Facility (except that in the
case of
payments due under paragraphs (c), (e), (f) and (k) below, such payments
shall be paid when due). Such fee shall be an amount or amounts
in the aggregate equal to the
following:
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7
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(a)
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the
Issuance Fees (other than to the extent such Issuance Fees are specified
in items (b) to (k) below);
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(b)
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the
fees, costs, charges, liabilities and expenses and any other amounts
due
and payable to the Note Trustee and the Issuer Security Trustee pursuant
to the Issuer Trust Deed, the Issuer Deed of Charge or any other
Transaction Document, together with interest thereon as provided
therein;
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(c)
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the
reasonable fees and expenses of any legal advisers, accountants and
auditors appointed by the Master Issuer and properly incurred in
their
performance of their functions under the Transaction Documents which
have
fallen due;
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(d)
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the
fees, costs and expenses due and payable to the Paying Agents, the
Agent
Bank, the Transfer Agent and the Registrar pursuant to the Issuer
Paying
Agent and Agent Bank Agreement;
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(e)
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any
amounts due and payable by the Master Issuer to the Inland Revenue
in
respect of the Master Issuer's liability to United Kingdom corporation
tax
(insofar as payment is not satisfied by the surrender of group relief
or
out of the profits, income or gains of the Master Issuer and subject
to
the terms of the Issuer Deed of Charge) or any other Taxes payable
by the
Master Issuer;
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(f)
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the
fees, costs, charges, liabilities and expenses due and payable to
the
Issuer Account Bank pursuant to the Issuer Bank Account Agreement
(if
any);
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(g)
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the
fees, costs, charges, liabilities and expenses due and payable to
the
Issuer Cash Manager pursuant to the Issuer Cash Management
Agreement;
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(h)
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any
termination payment due and payable by the Master Issuer to an Issuer
Swap
Provider pursuant to an Issuer Swap
Agreement;
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(i)
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the
fees, costs, charges, liabilities and expenses due and payable to
the
Issuer Corporate Services Provider pursuant to the Issuer Corporate
Services Agreement;
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(j)
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any
amounts due and payable (other than principal) by the Master Issuer
to the
Start-Up Loan Provider(s) in respect of the Master Issuer's obligations
under the Start-Up Loan Agreements;
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(k)
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the
amount to be retained by the Master Issuer under item (O) of the
Issuer
Pre-Enforcement Revenue Priority of Payments;
and
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(l)
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any
other amounts due or overdue by the Master Issuer to third parties
including the Rating Agencies and the amounts paid by the Master
Issuer
under the Programme Agreement, each Subscription Agreement and each
Underwriting Agreement (excluding, for these purposes, the Noteholders)
other than amounts specified in paragraphs (b) to (j)
above,
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together
with, (i) in respect of taxable supplies made to the Master Issuer, any amount
in respect of any VAT or similar tax payable in respect thereof against
production of a valid tax invoice; and (ii) in respect of taxable supplies
made
to a person other than
8
the
Master Issuer, any amount in respect of any Irrecoverable VAT or similar tax
payable in respect thereof (against production of a copy of the relevant tax
invoice), and to be applied subject to and in accordance with the provisions
of
the Issuer Pre-Enforcement Revenue Priority of Payments in the Issuer Cash
Management Agreement.
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7.7
|
Set-off: Funding
2 and each of the other parties to this Agreement agree that the
Master
Issuer shall be entitled to set-off those amounts due and payable
by
Funding 2 pursuant to Clause 7.6 (Certain Fees) on the Closing
Date for a Loan Tranche against the amount to be advanced by the
Master
Issuer to Funding 2 under such Loan Tranche on such Closing
Date.
|
|
8.
|
Repayment
|
|
8.1
|
Repayment
of Loan Tranches: Subject to Clause 5 (Limited
Recourse), on each Loan Payment Date for a Loan Tranche, other than
a
Loan Payment Date on which such Loan Tranche is to be repaid under
Clause
9 (Prepayment), Funding 2 shall repay principal in respect
of such Loan Tranche in an amount equal
to:
|
|
|
(a)
|
prior
to the earlier to occur of the Step-Up Date (if any) in respect of
such
Loan Tranche and a Pass-Through Trigger Event, the lower
of:
|
|
|
(i)
|
the
amount due to be paid on such Loan Payment Date as specified for
such Loan
Tranche in the applicable Loan Tranche Supplement;
and
|
|
|
(ii)
|
the
amount which is available, under the terms of the Funding 2 Deed
of Charge
and the Cash Management Agreement to repay principal in respect of
such
Loan Tranche,
|
provided
that, in the case of any Pass-Through Loan Tranche, the amount of principal
to
be repaid by Funding 2 in respect of such Loan Tranche on the applicable Loan
Payment Date shall be calculated in accordance with sub-paragraph (ii) above;
or
|
|
(b)
|
following
the earlier to occur of the Step-Up Date (if any) in respect of such
Loan
Tranche and a Pass-Through Trigger Event (whereupon each following
Monthly
Payment Date for such Loan Tranche shall constitute a Loan Payment
Date
for such Loan Tranche), the amount which is available under the terms
of
the Funding 2 Deed of Charge and the Cash Management Agreement to
repay
principal in respect of such Loan
Tranche.
|
To
the
extent that there are insufficient funds available to Funding 2 to repay the
amount due to be paid on such Loan Payment Date for such Loan Tranche, Funding
2
will be required to repay the shortfall, to the extent that it receives funds
therefor (and subject to the terms of the Funding 2 Deed of Charge and the
Cash
Management Agreement) on subsequent Loan Payment Dates for such Loan
Tranche.
|
8.2
|
Loan
Tranche Ratings: Unless otherwise specified for any Loan
Tranche in the applicable Loan Tranche Supplement, such Loan Tranche
shall
be repaid (as to both interest and principal) in the priority according
to
the Loan Tranche Rating of that Loan Tranche. The Loan Tranche
Rating for a Loan Tranche will be specified
for
|
9
|
|
such
Loan Tranche in the applicable Loan Tranche
Supplement.
|
|
8.3
|
Payment
subject to terms of the Funding 2 Deed of Charge and the Cash Management
Agreement: The terms and conditions of Clause 7
(Interest) and this Clause 8 (Repayment) are to be read
in conjunction with the provisions of Schedule 3 to the Funding 2
Deed of
Charge and the Cash Management Agreement, as the same may be amended
or
varied from time to time in accordance with the provisions
thereof.
|
|
9.
|
Prepayment
|
|
9.1
|
Prepayment
for taxation or other reasons:
If:
|
|
|
(a)
|
Funding
2 is required to withhold or deduct from any payment of principal
or
interest in respect of any Loan Tranche any amount for or on account
of
Tax; or
|
|
|
(b)
|
the
Master Issuer is required to withhold or deduct from any payment
of
principal, interest or premium in respect of its Notes any amount
for or
on account of Tax; or
|
|
|
(c)
|
a
Loan Tranche becomes illegal as described in Clause 11
(Illegality);
|
then,
without prejudice to the obligations of Funding 2 under Clause 11
(Illegality) and subject to Clause 12 (Mitigation), the
Master Issuer may require Funding 2 to prepay, on any Loan Payment Date for
such
Loan Tranche, having given not more than 60 days’ and not less than 30 days' (or
such shorter period as may be required by any relevant law in the case of any
Loan Tranche which becomes illegal pursuant to Clause 11 (Illegality))
prior written notice to Funding 2 and the Note Trustee (or on or before the
latest date permitted by the relevant law in the case of Clause 11
(Illegality)) so long as the relevant circumstances continue, the
applicable Loan Tranches without penalty or premium but subject to Clause 16
(Default Interest and Indemnity), provided that the Repayment Tests
will be satisfied following such prepayment and the Master Issuer is able to
repay the Notes used to fund such Loan Tranche on such Loan Payment Date from
funds received from repayment of such Loan Tranche.
|
9.2
|
Prepayment
at option of Master Issuer: The Master Issuer, at its
option, may require Funding 2 to prepay the outstanding principal
amount
of a Loan Tranche (together with any accrued interest) on any Loan
Payment
Date for such Loan Tranche on which the Master Issuer has decided
to
exercise its option, if any, to redeem in full the Notes used to
fund such
Loan Tranche or on any date which is a Step-Up Date in respect of
the
Notes used to fund such Loan Tranche provided that, in each case,
the
Repayment Tests will be satisfied following such
prepayment. The Master Issuer shall give Funding 2 not less
than 30 days' prior written notice (or, in the case of the exercise
of an
option to redeem the Notes pursuant to Condition 5(D)(iii) of the
Notes,
not more than 30 days’ nor less than 5 days prior written notice) of the
Master Issuer's decision to exercise its option to require Funding
2 to
prepay the relevant Loan Tranche. Any prepayment by Funding 2
will be made without penalty or premium but will be subject to Clause
16 (Default interest and
indemnity).
|
10
|
9.3
|
Application
of monies: The Master Issuer hereby agrees to apply any
amounts received by way of prepayment pursuant to Clause 9.1
(Prepayment for taxation or other reasons) or Clause 9.2
(Prepayment at option of Master Issuer) in making prepayments
under the relevant Notes.
|
|
10.
|
Taxes
|
|
10.1
|
No
gross up: All payments by Funding 2 under this Agreement
shall be made without any deduction or withholding for or on account
of,
and free and clear of, any Taxes, except to the extent that Funding
2 is
required by law to make payment subject to any
Taxes.
|
|
10.2
|
Tax
receipts: All Taxes required by law to be deducted or
withheld by Funding 2 from any amounts paid or payable under this
Agreement shall be paid by Funding 2 when due and Funding 2 shall,
within
30 days of the payment being made, deliver to the Master Issuer evidence
satisfactory to the Master Issuer (including all relevant Tax receipts)
that the payment has been duly remitted to the appropriate
authority.
|
|
11.
|
Illegality
|
If,
at
any time, it is unlawful for the Master Issuer to make, fund or allow to remain
outstanding a Loan Tranche made by it under this Agreement, then the Master
Issuer shall, promptly after becoming aware of the same, deliver to Funding
2,
the Funding 2 Security Trustee and the Rating Agencies a certificate to that
effect and if the Master Issuer so requires, Funding 2 shall promptly to the
extent necessary to cure such illegality prepay such Loan Tranche subject to
and
in accordance with the provisions of Clause 9.1 (Prepayment for taxation or
other reasons).
|
12.
|
Mitigation
|
If
circumstances arise in respect of the Master Issuer which would, or would upon
the giving of notice, result in:
|
|
(a)
|
the
prepayment of the Loan Tranches pursuant to Clause 11
(Illegality);
|
|
|
(b)
|
a
withholding or deduction from the amount to be paid by Funding 2
on
account of Taxes pursuant to Clause 10
(Taxes),
|
then,
without in any way limiting, reducing or otherwise qualifying the obligations
of
Funding 2 under this Agreement, the Master Issuer shall:
|
|
(i)
|
promptly
upon becoming aware of the circumstances, notify the Funding 2 Security
Trustee, Funding 2 and the Rating Agencies;
and
|
|
|
(ii)
|
upon
written request from Funding 2, take such reasonable steps as may
be
practical to mitigate the effects of those circumstances including
(without limitation) the assignment by novation of the Master Issuer's
rights under this Loan Agreement to, and assumption by novation of
all the
Master Issuer's obligations under this Agreement by, another company,
which is willing to participate in the Loan Tranches in its place
and
which is not subject to (a) and/or (b)
above,
|
11
|
|
provided
that no such transfer or assignment and transfer by novation of such
rights and obligations may be permitted unless the Rating Agencies
confirm
in writing to Funding 2 and the Funding 2 Security Trustee that there
will
be no downgrading of the then current rating of the Notes issued
by the
Master Issuer as a result and Funding 2 indemnifies the Master Issuer
for
any reasonable costs and expenses properly incurred as a result of
such
transfer or assignment.
|
|
13.
|
Representations
and Warranties of Funding
2
|
|
13.1
|
Representations
and warranties: Funding 2 makes the representations and
warranties set out in this Clause 13 to the Master Issuer and the
Funding
2 Security Trustee (as trustee for each of the Funding 2 Secured
Creditors).
|
|
13.2
|
Status:
|
|
|
(a)
|
It
is a limited liability company duly incorporated, validly existing
and
registered under the laws of the jurisdiction in which it is incorporated,
capable of being sued in its own right and not subject to any immunity
from any proceedings; and
|
|
|
(b)
|
it
has the power to own its property and assets and to carry on its
business
as it is being conducted.
|
|
13.3
|
Powers
and authority: It has the power to enter into, perform and
deliver, and has taken all necessary corporate and other action to
authorise the execution, delivery and performance by it of, each
of the
Transaction Documents to which it is a
party.
|
|
13.4
|
Legal
validity: Each Transaction Document to which it is or will
be a party constitutes or when executed in accordance with its terms
will
constitute, a legal, valid and binding obligation of Funding
2.
|
|
13.5
|
Non-conflict:
The execution by it of each of the Transaction Documents to which
it is a
party and the exercise by it of its rights and the performance of
its
obligations under such Transaction Documents including, without
limitation, borrowing pursuant to the terms of this Agreement or
granting
any security contemplated by the Transaction Documents will
not:
|
|
|
(a)
|
result
in the existence or imposition of, nor oblige it to create, any Security
Interest in favour of any person (other than the Funding 2 Security
Trustee for itself and on behalf of the other Funding 2 Secured Creditors
or as otherwise contemplated in the Transaction Documents) over all
or any
of its present or future revenues or
assets;
|
|
|
(b)
|
conflict
with any document which is binding upon it or any of its
assets;
|
|
|
(c)
|
conflict
with its constitutional documents;
or
|
|
|
(d)
|
conflict
with any law, regulation or official or judicial order of any government,
governmental body or court, domestic or foreign, having jurisdiction
over
it.
|
|
13.6
|
No
litigation: It is not a party to any material litigation,
arbitration or administrative
|
12
proceedings
and, to its knowledge, no material
litigation, arbitration or administrative proceedings are pending or threatened
against it.
|
13.7
|
No
default: No Funding 2 Intercompany Loan Event of Default is
continuing unremedied (if capable of remedy) or unwaived or would
result
from the making of any Loan
Tranche.
|
|
13.8
|
Authorisations:
All governmental consents, licences and other approvals and authorisations
required or desirable in connection with the entry into, performance,
validity and enforceability of, and the transactions contemplated
by, the
Transaction Documents have been obtained or effected (as appropriate)
and
are in full force and effect.
|
|
13.9
|
Registration
requirements: Except for due registration of the Funding 2
Deed of Charge under Section 395 of the Companies Xxx 0000, it is
not
necessary that the Funding 2 Deed of Charge or this Agreement be
filed,
recorded or enrolled with any authority or that, except for registration
fees payable at Companies Registry in respect of the Funding 2 Deed
of
Charge, any stamp, registration or similar tax be paid on or in respect
thereof.
|
|
13.10
|
Ranking
of security: The security conferred by the Funding 2 Deed of
Charge constitutes a first priority security interest of the type
described, and over the security assets referred to, in the Funding
2 Deed
of Charge and the Funding 2 Charged Property is not subject to any
prior
or pari passu Security
Interests.
|
|
13.11
|
No
other business:
|
|
|
(a)
|
It
has not traded or carried on any business since its date of incorporation
or engaged in any activity whatsoever that is not incidental to or
necessary in connection with any of the activities in which the
Transaction Documents provide or envisage that it will engage;
and
|
|
|
(b)
|
it
is not party to any material agreements other than the Transaction
Documents.
|
|
13.12
|
Ownership:
|
|
|
(a)
|
Its
entire issued share capital is legally and beneficially owned and
controlled by Holdings; and
|
|
|
(b)
|
its
shares are fully paid.
|
|
13.13
|
Good
title as to assets: Subject to the Security Interests
created under the Funding 2 Deed of Charge, it is and will remain
the
absolute beneficial owner of the Funding 2 Share and absolute legal
and
beneficial owner of all other assets charged or assigned by the Funding
2
Deed of Charge to which it is a
party.
|
|
13.14
|
Repetition:
The representations in this Clause 13 (Representations and Warranties
of Funding 2) shall survive the execution of this Agreement and the
making of each Loan Tranche under this Agreement, and shall be repeated
by
Funding 2 on each Closing Date relating to the making of each Loan
Tranche
by reference to the facts and
circumstances then existing.
|
13
|
14.
|
Covenants
|
|
14.1
|
Duration:
The undertakings in this Clause 14 (Covenants) shall remain in
force from the date of this Agreement for so long as any amount is
or may
be outstanding under this
Agreement.
|
|
14.2
|
Information:
Funding 2 shall supply to the Funding 2 Security Trustee and the
Rating
Agencies:
|
|
|
(a)
|
as
soon as the same are available its audited accounts for that Financial
Year; and
|
|
|
(b)
|
promptly,
such other information in connection with the matters contemplated
by the
Transaction Documents as the Funding 2 Security Trustee or the Rating
Agencies may reasonably request.
|
|
14.3
|
Notification
of Default: Funding 2 shall notify the Master Issuer and the
Funding 2 Security Trustee of any Funding 2 Intercompany Loan Event
of
Default (and the steps, if any, being taken to remedy it) or any
event
which with the giving of notice or lapse of time or certification
would
constitute the same promptly upon Funding 2 becoming aware of the
occurrence of each Funding 2 Intercompany Loan Event of Default or
such
other event.
|
|
14.4
|
Authorisations:
Funding 2 shall promptly:
|
|
|
(a)
|
obtain,
maintain and comply with the terms of;
and
|
|
|
(b)
|
upon
request, supply certified copies to the Master Issuer and the Funding
2
Security Trustee of,
|
any
authorisation required under any law or regulation to enable it to perform
its
obligations under, or for the validity or enforceability of, any Transaction
Document to which it is a party.
|
14.5
|
Pari
passu ranking: Funding 2 shall procure that its obligations
under the Transaction Documents do and will rank at least pari
passu with all its other present and future unsecured obligations,
except for obligations mandatorily preferred by
law.
|
|
14.6
|
Negative
pledge: Funding 2 shall not create or permit to subsist any
Security Interest over or in respect of any of its assets (unless
arising
by operation of law) other than as provided pursuant to the Transaction
Documents.
|
|
14.7
|
Disposals;
Mergers and Acquisitions: Funding 2 shall not, either in a
single transaction or in a series of transactions, whether related
or not
and whether voluntarily or involuntarily, sell, assign, transfer,
lease or
otherwise dispose of or grant any option over all or any part of
its
assets, properties or undertakings or any interest, estate, right,
title
or benefit therein, other than as provided for pursuant to the Transaction
Documents. In addition to the
foregoing:
|
|
|
(a) Funding
2 shall not enter into any amalgamation, demerger, merger or
reconstruction; and
|
14
|
|
(b)
|
Funding
2 shall not acquire any assets or business or make any investments
other
than as contemplated in the Transaction
Documents.
|
|
14.8
|
Lending
and borrowing:
|
|
|
(a)
|
Except
as provided or contemplated under the Transaction Documents, Funding
2
shall not make any loans or provide any other form of credit to any
person.
|
|
|
(b)
|
Funding
2 shall not give any guarantee or indemnity to or for the benefit
of any
person in respect of any obligation of any other person or enter
into any
document under which Funding 2 assumes any liability of any other
person.
|
|
|
(c)
|
Funding
2 shall not incur any indebtedness in respect of any borrowed money
other
than under the Transaction
Documents.
|
|
14.9
|
Shares
and dividends: Funding 2 shall
not:
|
|
|
(a)
|
declare
or pay any dividend or make any other distribution in respect of
any of
its shares other than in accordance with the Funding 2 Deed of
Charge;
|
|
|
(b)
|
issue
any further shares or alter any rights attaching to its issued shares
as
at the date hereof; or
|
|
|
(c)
|
repay
or redeem any of its share capital.
|
|
14.10
|
Change
of business:
|
|
|
(a)
|
Funding
2 shall not carry on any business or engage in any activity other
than as
contemplated by the Transaction Documents or which is not incidental
to or
necessary in connection with any of the activities in which the
Transaction Documents provide or envisage that Funding 2 will
engage.
|
|
|
(b)
|
Other
than in respect of the Master Issuer (and any other Funding 2 Issuer),
Funding 2 shall not have any subsidiaries or subsidiary undertakings
as
defined in the Companies Xxx 0000, as
amended.
|
|
|
(c)
|
Funding
2 shall not own any premises.
|
|
14.11
|
Tax: Funding
2 shall not apply to become part of any group for the purposes of
section
43 of the Value Added Tax Act 1994 (as amended) with the Master Issuer
unless required to do so by law.
|
|
14.12
|
United
States Activities: Funding 2 will not engage in any
activities in the United States (directly or through agents), will
not
derive any income from United States sources as determined under
United
States income tax principles and will not hold any property if doing
so
would cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United States
tax
principles.
|
|
14.13
|
Funding
2 Ledgers: Funding 2 shall maintain, or cause to be
maintained, the Funding 2 Ledgers in accordance with the Cash Management
Agreement.
|
15
|
14.14
|
Funding
2 Liquidity Reserve Fund: Funding 2 will establish the
Funding 2 Liquidity Reserve Fund and the Funding 2 Liquidity Reserve
Ledger, should the long-term, unsecured, unsubordinated and unguaranteed
debt obligations of the Seller cease to be rated at least A3 by Moody's
or
A- by Fitch (unless Moody's or Fitch, as applicable, confirms the
then
current ratings of the Notes of the Master Issuer will not be adversely
affected by such ratings downgrade). Any such Funding 2
Liquidity Reserve Fund and Funding 2 Liquidity Reserve Ledger shall
be
established and maintained in accordance with the provisions of the
Cash
Management Agreement.
|
|
15.
|
Default
|
|
15.1
|
Funding
2 Intercompany Loan Events of Default: Each of the events
set out in Clause 15.2 (Non-payment) to Clause 15.8
(Ownership) (both inclusive) is a Funding 2 Intercompany Loan
Event of Default (whether or not caused by any reason whatsoever
outside
the control of Funding 2 or any other
person).
|
|
15.2
|
Non-payment:
Subject to Clause 5.1 (Recourse limited to available funds),
Funding 2 does not pay on the due date or such failure to pay continues
for a period of five London Business Days after such due date any
amount
payable by it under any Funding 2 Intercompany Loan Agreement at
the place
at and in the currency in which it is expressed to be
payable.
|
|
15.3
|
Breach
of other obligations: Funding 2 does not comply in any
material respect (in the opinion of the Funding 2 Security Trustee)
with
any of its obligations under the Transaction Documents to which it
is a
party (other than those referred to in Clause 15.2 (Non-payment))
and such non-compliance, if capable of remedy, is not remedied promptly
and in any event within twenty London Business Days of Funding 2
becoming
aware of the non-compliance or receipt of a written notice from the
Funding 2 Security Trustee requiring Funding 2's non-compliance to
be
remedied.
|
|
15.4
|
Misrepresentation:
A representation, warranty or statement made or repeated in or in
connection with any Transaction Document or in any document delivered
by
or on behalf of Funding 2 under or in connection with any Transaction
Document is incorrect in any material respect (in the opinion of
the
Funding 2 Security Trustee) when made or deemed to be made or
repeated.
|
|
15.5
|
Insolvency:
|
|
|
(a)
|
An
order is made or an effective resolution is passed for the winding
up of
Funding 2 (except, in any such case, a winding-up or dissolution
for the
purpose of a reconstruction, amalgamation or merger the terms of
which
have been previously approved by the Funding 2 Security Trustee;
or
|
|
|
(b)
|
Except
for the purposes of an amalgamation, merger or restructuring as described
in (a) above, Funding 2 ceases or threatens to cease to carry on
all or a
substantial part of its business or stops payment or threatens to
stop
payment of its debts or is deemed unable to pay its debts within
the
meaning of Section 123(a), (b), (c) or (d) of the Insolvency Xxx
0000 (as
amended, modified or re enacted)
or becomes unable to pay its debts within the meaning of Section
132(2) of
the Insolvency Act 1986 (as amended, modified or re-enacted);
or
|
16
|
|
(c)
|
Proceedings
are otherwise initiated against Funding 2 under any applicable
liquidation, insolvency, composition, reorganisation or other similar
laws
(including, but not limited to, presentation of a petition for an
administration order or the making of an application for an administration
order or the filing of documents for an administration order) and
(except
in the case of presentation of a petition for or making an application
for
or filing of any documents for an administration order) such Proceedings
are not, in the opinion of the Funding 2 Security Trustee being disputed
in good faith with a reasonable prospect of success; or a formal
notice is
given of intention to appoint an administrator; or an administration
order
is granted or an administrative receiver or other receiver, liquidator
or
other similar official is appointed in relation to Funding 2 or in
relation to the whole or any substantial part of the undertaking
or assets
of Funding 2; or an encumbrancer taking possession of the whole or
any
substantial part of the undertaking or assets of Funding 2; or a
distress,
execution, diligence or other process is levied or enforced upon
or sued
out against the whole or any substantial part of the undertaking
or assets
of Funding 2 and such possession or process (as the case may be)
is not
discharged or not otherwise cease to apply within 30 days; or Funding
2
initiates or consents to judicial proceedings relating to itself
under
applicable liquidation, insolvency, composition, reorganisation or
other
similar laws or makes a conveyance or assignment for the benefit
of its
creditors generally.
|
|
15.6
|
Unlawfulness:
It is or becomes unlawful for Funding 2 to perform any of its obligations
under any Transaction Document.
|
|
15.7
|
The
Funding 2 Deed of Charge: The Funding 2 Deed of Charge is no
longer binding on or enforceable against Funding 2 or effective to
create
the security intended to be created by
it.
|
|
15.8
|
Ownership:
The entire issued share capital of Funding 2 ceases to be legally
and
beneficially owned and controlled by
Holdings.
|
|
15.9
|
Acceleration
of Global Intercompany Loan: Upon the Funding 2 Security
Trustee's receipt from the Master Issuer or other party to a Transaction
Document of notice of the occurrence of a Funding 2 Intercompany
Loan
Event of Default which is continuing unremedied and/or has not been
waived, the Funding 2 Security Trustee may by written notice to Funding
2
(a "Funding 2 Intercompany Loan Enforcement Notice")
which is copied to each of the Funding 2 Secured Creditors and the
Mortgages Trustee:
|
|
|
(a)
|
declare
all Loan Tranches made under this Agreement to be immediately due
and
payable, whereupon the same shall, subject to Clause 15.10 (Repayment
of Global Intercompany Loan on acceleration), become so payable
together with accrued interest thereon and any other sums then owed
by
Funding 2 under this Agreement;
and/or
|
|
|
(b)
|
declare
the Loan Tranches to be due and payable on demand of the Funding
2
Security Trustee.
|
|
15.10
|
Repayment
of Global Intercompany Loan on acceleration: Upon the
Funding 2
|
17
Security
Trustee declaring the Loan Tranches to be
immediately due and payable pursuant to Clause 15.9
(Acceleration of Global Intercompany Loan), the amount due and payable
in respect of each Loan Tranche shall be paid by Funding 2 without penalty
or
premium but subject to Clause 16 (Default interest and
indemnity).
|
16.
|
Default
Interest and Indemnity
|
|
16.1
|
Default
Loan Interest Periods: If any sum due and payable by Funding
2 under a Loan Tranche is not paid on the due date for payment in
accordance with this Agreement or if any sum due and payable by Funding
2
under any judgment or decree of any court in connection with this
Agreement is not paid on the date of such judgment or decree, the
period
beginning on such due date or, as the case may be, the date of such
judgment or decree and ending on the date upon which the obligation
of
Funding 2 to pay such sum (the balance thereof for the time being
unpaid
being herein referred to as an "unpaid sum") is
discharged shall be divided into successive periods, each of which
(other
than the first) shall start on the last day of the preceding such
period
and the duration of each of which shall (except as otherwise provided
in
this Clause 16) be selected by the Funding 2 Security Trustee having
regard to when such unpaid sum is likely to be
paid.
|
|
16.2
|
Default
interest: During each such period relating to an unpaid sum
as is mentioned in this Clause 16 an unpaid sum shall bear interest
at the
rate per annum which the Master Issuer, acting reasonably, determines
and
certifies to Funding 2 and the Funding 2 Security Trustee will be
sufficient to enable it to pay interest and other costs and indemnities
on
or in respect of any amount which the Master Issuer does not pay
as a
result of Funding 2's non-payment under this Agreement, as a result
of
such unpaid sum not being paid to
it.
|
|
16.3
|
Payment
of default interest: Any interest which shall have accrued
under Clause 16.2 (Default interest) in respect of an unpaid sum
shall be due and payable and shall be paid by Funding 2 at the end
of the
period by reference to which it is calculated or on such other date
or
dates as the Funding 2 Security Trustee may specify by written notice
to
Funding 2.
|
|
16.4
|
Broken
periods: Funding 2 shall forthwith on demand indemnify the
Master Issuer against any loss or liability that the Master Issuer
incurs
as a consequence of any payment of principal for a Loan Tranche being
received from any source otherwise than on a Loan Payment Date for
such
Loan Tranche or an overdue amount being received otherwise than on
its due
date.
|
|
16.5
|
Funding
2's payment indemnity: Funding 2 undertakes to indemnify the
Master Issuer:
|
|
|
(a)
|
against
any cost, claim, loss, expense (including legal fees) or liability
together with any amount in respect of Irrecoverable VAT thereon
(other
than by reason of the negligence or wilful default by the Master
Issuer)
which it may sustain or incur as a consequence of the occurrence
of any
Funding 2 Intercompany Loan Event of Default or any default by Funding
2
in the performance of any of the obligations expressed to be assumed
by it
in any of the Transaction Documents (other than by reason of negligence
or
wilful
|
18
|
|
default
on the part of the Master Issuer or prior breach by the Master Issuer
of
the terms of any of the Transaction Documents to which it is a party);
and
|
|
|
(b)
|
against
any other loss or liability (other than by reason of the negligence
or
default of the Master Issuer or breach by the Master Issuer of the
terms
of any of the Transaction Documents to which it is a party (except
where
such breach is caused by the prior breach of Funding 2) or loss of
profit)
it may suffer by reason of having made a Loan Tranche available or
entering into this Agreement or enforcing any security granted pursuant
to
the Funding 2 Deed of Charge.
|
|
17.
|
Payments
|
|
17.1
|
Payment:
|
|
|
(a)
|
Subject
to Clause 5 (Limited Recourse), all amounts of interest and
principal to be paid to the Master Issuer under this Agreement shall
be
paid in Sterling for value by Funding 2 to the Issuer Transaction
Account
and the relevant irrevocable payment instruction for such payment
shall be
given by Funding 2 by no later than noon to the Issuer Cash Manager
under
the Issuer Cash Management Agreement (with a copy to the Master Issuer
and
the Funding 2 Security Trustee) on the Distribution Date immediately
preceding the relevant Loan Payment
Date.
|
|
|
(b)
|
On
each date on which this Agreement requires any amount other than
the
amounts specified in Clause 17.1(a) to be paid by Funding 2, Funding
2
shall, save as provided otherwise herein, make the same available
to the
Master Issuer by payment in Sterling in immediately available, freely
transferable, cleared funds to the Issuer Transaction
Account.
|
|
17.2
|
Alternative
payment arrangements: If, at any time, it shall become
impracticable (by reason of any action of any governmental authority
or
any change in law, exchange control regulations or any similar event)
for
Funding 2 to make any payments under this Agreement in the manner
specified in Clause 17.1 (Payment), then Funding 2 shall make
such alternative arrangements for the payment direct to the Master
Issuer
of amounts due under this Agreement as are acceptable to the Funding
2
Security Trustee.
|
|
17.3
|
No
set-off: All payments required to be made by Funding 2 under
this Agreement shall be calculated without reference to any set-off
or
counterclaim and shall be made free and clear of, and without any
deduction for or on account of, any set-off or
counterclaim.
|
|
18.
|
Entrenched
Provisions
|
Each
of
Funding 2, the Master Issuer and the Funding 2 Security Trustee acknowledge
and
agree that Funding 2 may from time to time enter into new Funding 2 Intercompany
Loan Agreements and that the obligation of Funding 2 to repay the Loan Tranches
made under this Agreement will rank pari passu with the obligations of
Funding 2 to repay any such other loans made under such Funding 2 Intercompany
Loan Agreements. If Funding 2 intends to enter into a new Funding 2
Intercompany
19
Loan
Agreement then the provisions of this Agreement may be varied (with the consent
of the parties to this Agreement to the extent necessary to reflect the terms
of
that Funding 2 Intercompany Loan Agreement) PROVIDED THAT no variation shall
be
made to any of the following terms without the prior written consent of the
Funding 2 Secured Creditors and the Rating Agencies:
|
|
(a)
|
the
Loan Payment Dates;
|
|
|
(b)
|
Clause
5 (Limited Recourse);
|
|
|
(c)
|
Clause
10 (Taxes); and
|
|
|
(d)
|
Clause
19.5 (Funding 2 Security
Trustee).
|
|
19.
|
Further
Provisions
|
|
19.1
|
Evidence
of indebtedness: In any proceeding, action or claim relating
to a Loan Tranche a statement as to any amount due to the Master
Issuer
under such Loan Tranche which is certified as being correct by an
officer
of the Funding 2 Security Trustee shall, unless otherwise provided
in this
Agreement, be prima facie evidence that such amount is in fact due
and
payable.
|
|
19.2
|
Entire
Agreement, Amendments and Waiver and Rights
cumulative:
|
|
|
(a)
|
Entire
Agreement: This Agreement sets out the entire agreement and
understanding between the parties with respect to the subject matter
of
this Agreement superseding all prior oral or written understandings
other
than the other Transaction
Documents.
|
|
|
(b)
|
Amendments
and Waiver: Subject to Clause 18 (Entrenched Provisions), no
amendment or waiver of any provision of this Agreement nor consent
to any
departure by any of the parties therefrom shall in any event be effective
unless the same shall be in writing and signed by each of the parties
hereto. In the case of a waiver or consent, such waiver or
consent shall be effective only in the specific instance and as against
the party or parties giving it for the specific purpose for which
it is
given.
|
|
|
(c)
|
Rights
cumulative: The respective rights of each of the parties to this
Agreement are cumulative and may be exercised as often as they consider
appropriate. No failure on the part of any party 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 Agreement are cumulative and not exclusive of any
remedies provided by law.
|
|
19.3
|
Assignment: Neither
the Master Issuer nor Funding 2 may assign or transfer any of its
respective rights and obligations under this Agreement PROVIDED
THAT:
|
|
(a)
|
the
Master Issuer may assign its rights, title, interest or benefit
hereunder
to the Issuer Security Trustee pursuant to the Issuer Deed of
Charge;
|
20
|
|
(b)
|
Funding
2 may assign its rights hereunder to the Funding 2 Security Trustee
pursuant to the Funding 2 Deed of
Charge.
|
|
19.4
|
Severability: Where
any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality
and
enforceability of the remaining provisions or obligations under this
Agreement, or of such provision or obligation in any other jurisdiction,
shall not be affected or impaired
thereby.
|
|
19.5
|
Funding
2 Security Trustee:
|
|
|
(a)
|
The
Funding 2 Security Trustee shall have no responsibility for any of
the
obligations of any other party to this Agreement (other than
itself). For the avoidance of doubt, the parties to this
Agreement acknowledge that the rights and obligations of the Funding
2
Security Trustee under this Agreement are governed by the Funding
2 Deed
of Charge.
|
|
|
(b)
|
As
between the Funding 2 Security Trustee and the parties hereto any
liberty
or power which may be exercised or any determination which may be
made
hereunder by the Funding 2 Security Trustee may be exercised or made
in
the Funding 2 Security Trustee's absolute discretion without any
obligation to give reasons therefor, but in any event must be exercised
or
made in accordance with the provisions of the Funding 2 Deed of
Charge.
|
|
19.6
|
Counterparts:
This Agreement may be executed in any number of counterparts (manually
or
by facsimile) and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all
of which when taken together shall constitute one and the same
instrument.
|
|
19.7
|
Third
Party Rights: A person who is not a party to this Agreement
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.
|
|
19.8
|
Corporate
Obligations: To the extent permitted by law, no
recourse under any obligation, covenant, or agreement of any person
contained in this Agreement shall be had against any shareholder,
officer
or director of such person as such, by the enforcement of any assessment
or by any legal proceeding, by virtue of any statute or otherwise;
it
being expressly agreed and understood that this Agreement is a corporate
obligation of each person expressed to be a party hereto and no personal
liability shall attach to or be incurred by the shareholders, officers,
agents or directors of such person as such, or any of them, under
or by
reason of any of the obligations, covenants or agreements of such
person
contained in this Agreement, 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
Agreement.
|
|
20.
|
Redenomination
|
21
Each
obligation under this Agreement which has been denominated in Sterling shall
be
redenominated in Euro in accordance with applicable legislation passed by the
European Monetary Union upon such redenomination of the Sterling
Notes.
|
21.
|
Notices
|
Any
notices or other communication or document to be given or delivered pursuant
to
this Agreement 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 Issuer Master plc, Xxxxx
Xxxxx,
000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020 7606 0643)
for the
attention of the Company Secretary with a copy to Northern Rock plc,
Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX (facsimile
number 0191 213 2203) for the attention of the Group
Secretary;
|
|
|
(b)
|
in
the case of Funding 2, to Granite Finance Funding 2 Limited,
Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020
8409
8911) 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);
|
|
|
(c)
|
in
the case of Funding 2 Security Trustee, to The Bank of New York,
00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx, X00 0XX (facsimile number 020 7964
4637)
for the attention of the Trustee Administration Manager;
and
|
|
|
(d)
|
in
the case of Agent Bank, to Citibank, N.A., Citigroup Centre, Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX, (facsimile number 020 7508
3881) for
the attention of Rate Fixing,
|
or
to
such other address or facsimile number or for the attention of such other person
or entity as may from time to time be notified by any party to the others by
written notice in accordance with the provisions of this Clause
22. All notices served under this Agreement shall be simultaneously
copied to the Funding 2 Security Trustee by the person serving the
same.
|
22.
|
Governing
Law and Submission to
Jurisdiction
|
|
22.1
|
Governing
Law: This Agreement is governed by, and shall be
construed in accordance with, English
law.
|
|
22.2
|
Submission
to Jurisdiction: Each of the parties hereto irrevocably
agrees that the courts of England shall have jurisdiction to hear
and
determine any suit, action or proceeding, and to settle any disputes,
which may arise out of or in connection with this Agreement and,
for such
purposes, irrevocably submits to the jurisdiction of such courts.
|
22
|
22.3
|
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 suit, action or proceeding and to
settle
any disputes, and agrees not to claim that any such court is not
a
convenient or appropriate forum.
|
IN
WITNESS WHEREOF the parties have caused this Agreement to be duly
executed on the day and year first before written.
23
SCHEDULE
1
FORM
OF LOAN TRANCHE SUPPLEMENT
24
Dated
[•]
GRANITE
FINANCE FUNDING 2 LIMITED
as
Funding 2
as
Master
Issuer
THE
BANK OF NEW YORK
as
Funding 2 Security Trustee
CITIBANK,
N.A.
as
Agent
Bank
LOAN
TRANCHE SUPPLEMENT
25
THIS
LOAN TRANCHE SUPPLEMENT is dated [•] between:
|
(1)
|
GRANITE
FINANCE FUNDING 2 LIMITED (registered number 5249387) 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 as Funding 2;
|
|
(2)
|
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;
|
|
(3)
|
THE
BANK OF NEW YORK, acting through its office at 00xx Xxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxx X00 0XX in its capacity as the Funding 2 Security
Trustee; and
|
|
(4)
|
CITIBANK,
N.A., acting through its office at Citigroup Centre, Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX in its capacity as the Agent
Bank.
|
This
document constitutes the Loan Tranche Supplement relating to the Loan Tranches
described herein. Terms used herein shall be deemed to be defined as such for
the purposes of the Global Intercompany Loan Agreement entered into between
the
parties hereto on 19 January, 2005. This Loan Tranche Supplement contains the
final terms of the Loan Tranches identified and described herein, is
supplemental to and must be read in conjunction with the Global Intercompany
Loan Agreement.
[To
be repeated for each Loan Tranche funded by Notes of each class of the same
Series]
|
Loan
Tranche: The Series [•] Class [•] Notes will fund the
[identifier] Loan Tranche which shall have the following
terms:
|
||
|
1.
|
Borrower:
|
Granite
Finance Funding 2 Limited
|
|
2.
|
Lender:
|
|
|
3.
|
(i) Loan
Tranche Rating:
|
[•]
|
|
(ii) Series
Number:
|
[•]
|
|
|
4.
|
Initial
Outstanding Principal Balance:
|
[•]
|
|
5.
|
(i) Closing
Date:
|
[•]
|
|
(ii)
Loan Tranche Interest Commencement Date:
|
[•]
|
|
|
(iii)
Loan Tranche Interest Reset Dates:
|
The
Monthly Payment Date specified herein falling in [•], [•], [•] and [•] of
each year or, following the earlier to occur of the Step-Up Date
in
relation to this Loan Tranche or a Pass-Through Trigger Event, each
Monthly Payment Date specified herein of each
year.
|
|
26
|
6.
|
Final
Repayment Date:
|
[•]
|
|
7.
|
Payment
Dates:
|
|
|
(a) Monthly
Payment Dates
|
The
date falling on the [l]th
day of each
calendar month subject to the Business Day Convention specified for
the
Series [l]
Class [l]
Notes in the applicable Final Terms
|
|
|
(b) Loan
Payment Dates
|
Each
Monthly Payment Date specified herein in each year up to and including
the
Final Repayment Date
|
|
|
8.
|
Initial
Relevant Screen Rate:
|
[•]
|
|
9.
|
Loan
Reference Rate:
|
[•]
or, following the earlier to occur of the Step-Up Date in relation
to this
Loan Tranche or a Pass-Through Trigger Event, LIBOR for one-month
sterling
deposits
|
|
10.
|
Relevant
Margin:
|
[•]
|
|
11.
|
Step-Up
Date:
|
[Not
Applicable/The Loan Payment Date occurring in [specify
date]]
(If
not applicable, delete the remaining parts of this
sub-paragraph)
|
|
12.
|
Relevant
Margin following Step-Up Date:
|
[Not
Applicable/[•]]
|
|
13.
|
Redemption/Payment
Basis:
|
[Redemption
at par]
[Index
Linked Redemption]
[Bullet
Redemption]
[Scheduled
Redemption]
[Controlled
Amortisation]
[Pass-through]
|
|
14.
|
Change
of Redemption/Payment Basis:
|
[Specify
details of any provision for change of Loan Tranches into another
Redemption/Payment Basis
|
|
15.
|
Details
relating to Bullet Loan Tranche:
|
[Applicable/Not
Applicable]
[if
not applicable, delete the remaining sub-paragraphs of this
paragraph]
|
|
(i)
Bullet Repayment Loan Amount:
|
[•]
|
|
|
(ii) Bullet
Redemption Date:
|
[•]
|
27
|
16.
|
Details
relating to Scheduled Repayment Loan Tranche:
|
[Applicable/Not
Applicable]
[If
the Scheduled Repayment Loan Tranche is applicable, specify the Scheduled
Repayment Dates and Scheduled Repayment Loan Instalments
below]
[if
not applicable, delete the remaining sub-paragraphs of this
paragraph]
|
|
Scheduled
Repayment Dates
Loan
Repayment Dates occurring in:
[•]
|
Scheduled
Repayment Loan Instalment:
[•]
|
|
|
17.
|
Details
relating to Controlled Repayment Loan Tranche:
|
[Applicable/Not
Applicable]
[If
the Controlled Repayment Loan Tranche is applicable, specify the
Target
Balance for each Loan Payment Date below]
[if
not applicable, delete the remaining sub-paragraphs of this
paragraph]
|
|
Controlled
Repayment Dates
Loan
Payment Date occurring in:
[•]
|
Target
Balance:
[•]
|
|
|
18.
|
Details
relating to Pass-through Loan Tranches:
|
[Applicable/Not
Applicable]
[If
the Pass-through Loan Tranche is applicable, specify the Loan Payment
Date
following which the Pass-Through Loan Tranches will be
due]
[If
not applicable, delete the remaining sub-paragraphs of this
paragraph].
|
|
19.
|
Other
terms and special conditions:
|
[Not
Applicable/give details]
|
28
Confirmations:
Funding
2
confirms that:
|
(a)
|
no
Funding 2 Intercompany Loan Event of Default has occurred and is
continuing which has not been waived, or would result from the
making of
such Loan Tranche;
|
|
(b)
|
the
representations and warranties set out in Clause 13 (Representations
and Warranties of Funding 2) are true on and as of the Closing Date
specified in this Loan Tranche Supplement by reference to the facts
and
circumstances then existing; and
|
|
(c)
|
as
of the Closing Date specified in this Loan Tranche Supplement,
there is no
debit balance on the Funding 2 Principal Deficiency
Ledger.
|
The
Master Issuer confirms that:
|
(a)
|
no
Issuer Event of Default has occurred and is continuing which has
not been
waived, or would result from the making of such Loan
Tranche;
|
|
(b)
|
the
aggregate amount of the Loan Tranches to be made on the Closing
Date
specified in this Loan Tranche Supplement and any Loan Tranches
outstanding on such Closing Date do not exceed the Total Credit
Commitment.
|
29
EXECUTION
PAGE
for
Loan Tranche Supplement
|
as
Funding 2
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
GRANITE
FINANCE FUNDING 2 LIMITED
|
)
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
|
as
Master Issuer
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
)
|
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
|
as
Funding 2 Security Trustee
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
THE
BANK OF NEW YORK
|
)
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
|
as
Agent Bank
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
CITIBANK,
N.A.
|
)
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
30
|
EXECUTION
PAGE
|
|
|
as
Funding 2
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
GRANITE
FINANCE FUNDING 2 LIMITED
|
)
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
|
as
Master Issuer
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
)
|
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
|
as
Funding 2 Security Trustee
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
THE
BANK OF NEW YORK
|
)
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
|
as
Agent Bank
|
|
|
EXECUTED
for and on behalf of
|
)
|
|
CITIBANK,
N.A.
|
)
|
|
by
|
)
|
|
_________________________
|
|
|
Name:
|
|
31
