Exhibit 4.1.1
EXECUTION VERSION
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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SECOND AMENDED GLOBAL INTERCOMPANY LOAN AGREEMENT
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Sidley Austin
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S I D L E Y |
CONTENTS
1. Interpretation....................................................1
2. The Facility......................................................1
3. The Loan Tranches.................................................1
4. Purpose...........................................................3
5. Limited Recourse..................................................3
6. Advance of Loan Tranches..........................................4
7. Interest..........................................................5
8. Repayment.........................................................9
9. Prepayment.......................................................10
10. Taxes............................................................11
11. Illegality.......................................................11
12. Mitigation.......................................................11
13. Representations and Warranties of Funding 2......................12
14. Covenants........................................................13
15. Default..........................................................16
16. Default Interest and Indemnity...................................18
17. Payments.........................................................19
18. Entrenched Provisions............................................19
19. Further Provisions...............................................20
20. Redenomination...................................................21
21. Notices..........................................................22
22. Governing Law and Submission to Jurisdiction.....................22
SCHEDULE 1 FORM OF LOAN TRANCHE SUPPLEMENT..............................24
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THIS AGREEMENT IS MADE ON 19 JANUARY, 2005 AND AMENDED AND RESTATED PURSUANT
TO DEEDS OF AMENDMENT AND RESTATEMENT DATED 19 JANUARY, 2007 AND 17 MAY, 2007
BETWEEN:
BETWEEN:
(1) 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;
(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, 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
(4) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, Xxxxxx Xxxxx, Xxxxxx X00 0XX in its capacity as Agent Bank.
WHEREAS:
(A) From time to time, the Master Issuer will issue Notes pursuant to the
Programme.
(B) 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.
(C) 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.
1. Interpretation
1.1 The provisions of the Programme Master Definitions Schedule signed
for the purposes of identification by Sidley Xxxxxx Xxxxx & Xxxx and
Xxxxx & Overy 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.
2. The Facility
2.1 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.
3. The Loan Tranches
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3.1 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:
(a) 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;
(b) 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;
(c) Funding 2 has confirmed in the applicable Loan Tranche
Supplement that:
(i) 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;
(ii) 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;
(iii) there is no debit balance on the Funding 2 Principal
Deficiency Ledger;
(d) Funding 2 has delivered to the Funding 2 Security Trustee a
solvency certificate in form and substance satisfactory to the
Funding 2 Security Trustee;
(e) the Master Issuer has confirmed in the applicable Loan Tranche
Supplement that:
(i) 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
(ii) 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;
(f) 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
(g) all other conditions precedent as may be specified in the
applicable Loan Tranche Supplement have been satisfied.
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4. Purpose
4.1 Purpose and application of a Loan Tranche: The proceeds of each Loan
Tranche may only be used by Funding 2 either:
(a) 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
(b) to refinance the existing debt of Funding 2, including any
existing Loan Tranche (in whole or in part); and/or
(c) to fund or partly fund or replenish the Funding 2 Reserve Fund or
make a deposit into the Funding 2 GIC Account.
4.2 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.
5. Limited Recourse
5.1 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:
(a) in respect of amounts payable prior to the enforcement of the
Funding 2 Security:
(i) 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
(ii) 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
(b) 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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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,
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.
5.2 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.
6. Advance of Loan Tranches
6.1 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.
6.2 Loan Tranche Supplement: The Loan Tranche Supplement to be signed
on each Closing Date in accordance with Clause 3.1(b) shall
record, amongst other things, the amount of each Loan Tranche to
be made on such Closing Date.
6.3 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.
6.4 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.
6.5 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.
6.6 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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7. Interest
7.1 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.
7.2 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.
7.3 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:
(a) 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.
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
(pound)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:
(i) the Relevant Margin for such Loan Tranche; and
(ii) 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).
(b) 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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(c) 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).
(d) 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.
(e) There will be no minimum or maximum Loan Tranche Rate of
Interest for such Loan Tranche.
(f) 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.
(g) 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).
(h) 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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(i) 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.
(j) 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.
7.4 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.
7.5 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.
7.6 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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(a) the Issuance Fees (other than to the extent such Issuance
Fees are specified in items (b) to (k) below);
(b) 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;
(c) 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;
(d) 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;
(e) 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;
(f) the fees, costs, charges, liabilities and expenses due and
payable to the Issuer Account Bank pursuant to the Issuer
Bank Account Agreement (if any);
(g) the fees, costs, charges, liabilities and expenses due and
payable to the Issuer Cash Manager pursuant to the Issuer
Cash Management Agreement;
(h) any termination payment due and payable by the Master Issuer
to an Issuer Swap Provider pursuant to an Issuer Swap
Agreement;
(i) the fees, costs, charges, liabilities and expenses due and
payable to the Issuer Corporate Services Provider pursuant
to the Issuer Corporate Services Agreement;
(j) 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;
(k) the amount to be retained by the Master Issuer under item
(O) of the Issuer Pre-Enforcement Revenue Priority of
Payments; and
(l) 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,
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
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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.
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
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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 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).
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
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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,
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
11
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 proceedings and, to its knowledge, no
material litigation, arbitration or administrative proceedings are
pending or threatened against it.
12
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.
14. Covenants
13
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
(b) Funding 2 shall not acquire any assets or business or make
any investments other than as contemplated in the
Transaction Documents.
14
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.
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
15
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
(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
16
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 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
17
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 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
18
(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 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
19
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;
(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
20
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
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
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.
22.3 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
22
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 [o]
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
CITIBANK, N.A.
as Agent Bank
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LOAN TRANCHE SUPPLEMENT
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THIS LOAN TRANCHE SUPPLEMENT is dated [o] 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 [o] Class [o] Notes will fund the [identifier] Loan
Tranche which shall have the following terms:
1. Borrower Granite Finance Funding 2 Limited
2. Lender: Granite Master Issuer plc
3. (i) Loan Tranche Rating: [o]
(ii) Series Number: [o]
4. Initial Outstanding Principal [o]
Balance:
[o]
5. (i) Closing Date:
[o]
(ii) Loan Tranche Interest
Commencement Date: The Monthly Payment Date specified
herein falling in [o], [o], [o] and
(iii) Loan Tranche Interest [o] of each year or, following the
Reset Dates: 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.
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6. Final Repayment Date: [o]
7. Payment Dates:
(a) Monthly Payment Dates The date falling on the [o]th day
of each calendar month subject to
the Business Day Convention
specified for the Series [o] Class
[o] 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: [o]
9. Loan Reference Rate: [o] 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: [o]
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 [Not applicable/[o]]
Step-Up Date:
13. Redemption/Payment Basis: [Redemption at par]
[Index Linked Redemption]
[Bullet Redemption]
[Scheduled Redemption]
[Controlled Amortisation]
[Pass-through]
14. Change of Redemption/Payment [Specify details of any provision
Basis: for change of Loan Tranches into
another Redemption/Payment Basis
15. Details relating to Bullet Loan [Applicable/Not Applicable]
Tranche:
(i) Bullet Repayment Loan Amount: [o]
(ii) Bullet Redemption Date: [o]
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16. Details relating to Scheduled [Applicable/Not Applicable]
Repayment Loan Tranche:
[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 Scheduled Repayment Loan Instalment:
Loan Repayment Dates occurring
in:
[o]
17. Details relating to Controlled [Applicable/Not Applicable]
Repayment Loan Tranche:
[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 Target Balance:
Loan Payment Date occurring in:
[o] [o]
18. Details relating to Pass-through [Applicable/Not Applicable]
Loan Tranches:
[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: [Applicable/Not Applicable]
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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.
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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 )
GRANITE MASTER ISSUER PLC )
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:
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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 )
GRANITE MASTER ISSUER PLC )
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:
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