Exhibit 4.4
Dated [o] January 2004
GRANITE MORTGAGES 04-1 PLC
as Current Issuer
THE BANK OF NEW YORK
as Note Trustee
- and -
OTHERS
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ISSUER DEED OF CHARGE
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SIDLEY XXXXXX XXXXX & XXXX
0 XXXXXXXXXXXX XXXXXX
XXXXXX XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
REF: 30507-21/630342
CONTENTS
1. Interpretation.....................................................2
2. Covenant to Pay and to Perform.....................................3
3. Current Issuer Security............................................4
4. Release of Current Issuer Charged Property.........................9
5. Declaration of Trust..............................................10
6. Restrictions on Exercise of Certain Rights........................10
7. Enforcement.......................................................14
8. Upon Enforcement..................................................16
9. Receiver..........................................................19
10. Further Assurance and Power of Attorney...........................22
11. Crystallisation...................................................23
12. Provisions relating to the Security...............................25
13. Protection of Third Parties.......................................26
14. Set-Off...........................................................27
15. Representations and Covenants.....................................27
16. Note Trustee Provisions...........................................32
17. Modification and Waiver...........................................33
18. Miscellaneous Provisions..........................................34
19. Rights cumulative.................................................35
20. Assignment........................................................35
21. Non Petition Covenant; Corporate Obligations......................35
22. Notices...........................................................36
23. Third Party Rights................................................37
24. Execution in Counterparts; Severability...........................37
25. Governing Law and Jurisdiction; Appropriate Forum.................37
SCHEDULE 1.................................................................39
i
SCHEDULE 2.................................................................42
SCHEDULE 3.................................................................47
EXECUTION PAGE.............................................................50
ii
THIS DEED OF CHARGE is made on [o]
BETWEEN:
(1) GRANITE MORTGAGES 04-1 PLC (registered number 4959572) a public
limited company incorporated under the laws of England and Wales
whose registered office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx
XX0X 0XX as Current Issuer;
(2) THE BANK OF NEW YORK, a New York banking corporation whose London
branch address is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX,
Xxxxxx Xxxxxxx, in its capacity as Note Trustee;
(3) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, in its capacity as Principal Paying Agent;
(4) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, in its capacity as Agent Bank;
(5) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, in its capacity as Registrar;
(6) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, in its capacity as Transfer Agent;
(7) CITIBANK, N.A., acting through its office at 0 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX, in its capacity as Account Bank;
(8) CITIBANK, N.A., acting through its office at 000 Xxxx Xxxxxx, 14th
Floor, Zone 3, New York, N.Y. 10043, U.S.A., in its capacity as US
Paying Agent;
(9) NORTHERN ROCK PLC (registered number 03273685) a public limited
company incorporated under the laws of England and Wales whose
registered office is at Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx
Xxxx XX0 0XX, in its capacity as Current Issuer Cash Manager;
(10) NORTHERN ROCK PLC (registered number 03273685) a public limited
company incorporated under the laws of England and Wales whose
registered office is at Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx
Xxxx XX0 0XX, in its capacity as Basis Rate Swap Provider;
(11) [o] in its capacity as Dollar Currency Swap Provider;
(12) [o] in its capacity as Euro Currency Swap Provider;
(13) LAW DEBENTURE CORPORATE SERVICES LIMITED (registered number 3388362)
a private limited company incorporated under the laws of England and
Wales whose registered office is at Xxxxx Xxxxx, 000 Xxxx Xxxxxx,
Xxxxxx XX0X 0XX as the Corporate Services Provider.
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WHEREAS:
(A) This Deed secures and will secure, inter alia, the Current Issuer
Secured Obligations.
(B) The Current Issuer will on the date of this Current Issuer Deed of
Charge issue the Current Issuer Notes pursuant to the Current Issuer
Trust Deed.
(C) The Paying Agents, the Agent Bank, the Registrar and the Transfer
Agent have agreed to provide certain agency services on behalf of the
Current Issuer for the benefit of the Noteholders on the terms set
out in the Current Issuer Paying Agent and Agent Bank Agreement.
(D) The Current Issuer Cash Manager has agreed to act as cash manager and
to provide certain administration and cash management services to the
Current Issuer on the terms set out in the Current Issuer Cash
Management Agreement.
(E) The Account Bank has agreed to provide certain bank account services
to the Current Issuer on the terms set out in the Current Issuer Bank
Account Agreement.
(F) The Dollar Currency Swap Provider has agreed to enter into
dollar/sterling currency swaps with the Current Issuer in relation to
Dollar Notes on the terms set out in the Current Issuer Dollar
Currency Swap Agreements.
(G) The Euro Currency Swap Provider has agreed to enter into
euro/sterling currency swaps with the Current Issuer in relation to
the Euro Notes on the terms set out in the Current Issuer Euro
Currency Swap Agreements.
(H) The Basis Rate Swap Provider has agreed to enter into an interest
rate swap with the Current Issuer on the terms set out in the Current
Issuer Basis Rate Swap Agreement.
(I) The Corporate Services Provider has agreed to act as corporate
services provider to, inter alios, the Current Issuer on the terms
set out in the Current Issuer Corporate Services Agreement.
(J) This Current Issuer Deed of Charge is supplemental to the Current
Issuer Trust Deed of even date herewith and made between the Current
Issuer and the Note Trustee relating to the issuance of the Current
Issuer Notes.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. Interpretation
1.1 Definitions: The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule
Seventh Amendment Deed made on [o] between, among others, the
Seller, Funding and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes
of identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx &
Overy on [o],
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(as the same have been and may be amended, varied or supplemented
from time to time with the consent of the parties hereto) are
expressly and specifically incorporated into and shall apply to this
Agreement.
The Issuer Master Definitions Schedule specified above shall prevail
to the extent that it conflicts with the Master Definitions Schedule.
1.2 Construction: In this Current Issuer Deed of Charge, except where the
context otherwise requires:
(a) the terms of the Current Issuer Trust Deed and of any agreement
in existence at the date hereof between the parties hereto are
incorporated in this Current Issuer Deed of Charge but (unless
otherwise expressly provided for herein) only to the extent
required to ensure that any proposed disposition of the Current
Issuer Charged Property contained in this Current Issuer Deed
of Charge is a valid disposition in accordance with Section
2(1) of the Law of Property (Miscellaneous Provisions) Xxx
0000;
(b) a reference in this Current Issuer Deed of Charge to any
property, assets, undertakings or rights includes, unless the
context otherwise requires, present and future property,
assets, undertakings or rights; and
(c) "this Current Issuer Deed of Charge" means this Current Issuer
Deed of Charge and all the Schedules hereto (as from time to
time modified and/or supplemented in accordance with the
provisions set out herein) and each other document or deed
entered into pursuant hereto (as from time to time modified/and
or supplemented as aforesaid) and expressed to be supplemental
hereto.
2. Covenant to Pay and to Perform
Subject to the provisions of the Current Issuer Transaction Documents
(including, in the case of the Current Issuer Notes, to Clause 2
(Covenant to Repay etc.) of the Current Issuer Trust Deed), the
Current Issuer covenants with and undertakes to the Note Trustee for
itself and as trustee for the Current Issuer Secured Creditors that
it will:
(a) duly and punctually pay and discharge all monies and
liabilities whatsoever which now are or at any time hereafter
may (whether before or after demand) become due and payable by
the Current Issuer to the Note Trustee (whether for its own
account or as trustee for the Current Issuer Secured Creditors)
or to any of the other Current Issuer Secured Creditors,
whether actually or contingently, under this Current Issuer
Deed of Charge and/or any of the other Current Issuer
Transaction Documents (including without limitation the Current
Issuer Notes); and
(b) observe, perform and satisfy all its other obligations and
liabilities under this Current Issuer Deed of Charge and/or any
of the other Current Issuer Transaction Documents (including
without limitation the Current Issuer Notes),
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PROVIDED THAT every payment in respect of any Current Issuer
Transaction Document made to the relevant Current Issuer Secured
Creditor in the manner provided in such Current Issuer Transaction
Document shall operate in satisfaction pro tanto of the relative
covenant by the Current Issuer in this Clause 2 (Covenant to Pay and
Perform).
3. Current Issuer Security
3.1 Funding Charged Property:
(a) The Current Issuer, by way of first fixed security for the
payment or discharge of the Current Issuer Secured Obligations,
subject to Clause 4 (Release of Current Issuer Charged
Property), hereby assigns to the Note Trustee, save to the
extent that any of the Current Issuer's rights and claims in
respect thereof derive from property which is situated in
Jersey at any relevant time, all of its right, title, benefit
and interest and all claims, present and future, in and to, the
security and all property, assets and rights and claims held on
trust by the Security Trustee for the payment or discharge of
the relevant Funding Secured Obligations pursuant to the
Funding Deed of Charge including all rights to receive payment
of any amount which may become payable to the Current Issuer
thereunder and all rights to serve notices and/or make demands
thereunder and/or to take such steps as are required to cause
payments to become due and payable thereunder and all rights of
action in respect of any breach thereof and all rights to
receive damages or obtain relief in respect thereof and the
proceeds of any of the foregoing, TO HOLD the same unto the
Note Trustee absolutely; and
(b) To the intent that the Note Trustee shall have a security
interest in accordance with the Security Interests (Jersey) Law
1983 (the "Jersey Security Law") (and as secured party for the
purposes of such law) for payment or discharge of the Current
Issuer Secured Obligations, subject to Clause 4 (Release of
Current Issuer Charged Property), the Current Issuer (as debtor
for the purposes of the Jersey Security Law) hereby assigns to
the extent that the same may be situate in Jersey at any
relevant time to the Note Trustee all of its right, title,
benefit and interest and all claims, present and future, in and
to, the security and all property, assets and rights and claims
held on trust by the Security Trustee for the payment or
discharge of the relevant Funding Secured Obligations pursuant
to the Funding Deed of Charge including all rights to receive
payment of any amount which may become payable to the Current
Issuer thereunder and all rights to serve notices and/or make
demands thereunder and/or to take such steps as are required to
cause payments to become due and payable thereunder and all
rights of action in respect of any breach thereof and all
rights to receive damages or obtain relief in respect thereof
and the proceeds of any of the foregoing, TO HOLD the same unto
the Note Trustee absolutely.
3.2 Contractual rights:
(a) The Current Issuer, by way of first fixed security for the
payment or discharge of the Current Issuer Secured Obligations,
subject to Clause 4 (Release of Current Issuer Charged
Property), hereby assigns to the Note Trustee, save to
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the extent that any of the Current Issuer's rights and claims in
respect thereof derive from property which is situated in Jersey at
any relevant time, all of its right, title, benefit and interest,
present and future, in, to and under:
(i) the Current Issuer Intercompany Loan Agreement;
(ii) (to the extent not assigned pursuant to Clause 3.1(a)) the
Funding Deed of Charge (including, for the avoidance of doubt,
the Current Issuer Deed of Accession);
(iii) the Current Issuer Swap Agreements;
(iv) the Current Issuer Bank Account Agreement;
(v) the Current Issuer Cash Management Agreement;
(vi) the Current Issuer Paying Agent and Agent Bank Agreement;
(vii) the Current Issuer Trust Deed;
(viii) the Current Issuer Notes;
(ix) the Current Issuer Underwriting Agreement;
(x) the Current Issuer Subscription Agreement;
(xi) the Current Issuer Post-Enforcement Call Option Agreement;
(xii) the Current Issuer Corporate Services Agreement;
(xiii) any Swap Collateral Ancillary Document; and
(xiv) each other Current Issuer Transaction Document (other than
this Current Issuer Deed of Charge) entered into or to be
entered into by the Current Issuer pursuant to or in connection
with any of the documents set out in paragraphs (i) through
(xii) above (including any agreement entered into by the
Current Issuer as a replacement of any of the above agreements
upon the termination of such agreement),
including, without limitation, all rights to receive payment
of any amounts which may become payable to the Current
Issuer thereunder and all payments received by the Current
Issuer thereunder including, without limitation, all rights
to serve notices and/or make demands thereunder and/or to
take such steps as are required to cause payments to become
due and payable thereunder and all rights of action in
respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds
of any of the foregoing, TO HOLD the same unto the Note
Trustee absolutely.
(b) To the intent that the Note Trustee shall have a security
interest in accordance with the Jersey Security Law (and as
secured party for the purposes of such law) for payment or
discharge of the Current Issuer Secured Obligations, subject to
Clause 4 (Release of Current Issuer Charged Property), the
Current
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Issuer (as debtor for the purposes of the Jersey Security Law)
hereby assigns to the extent that the same may be situate in
Jersey at any relevant time to the Note Trustee all of its
right, title, benefit and interest, present and future, in, to
and under:
(i) the Current Issuer Intercompany Loan Agreement;
(ii) (to the extent not assigned pursuant to Clause 3.1(a)) the
Funding Deed of Charge (including, for the avoidance of doubt,
the Current Issuer Deed of Accession);
(iii) the Current Issuer Swap Agreements;
(iv) the Current Issuer Bank Account Agreement;
(v) the Current Issuer Cash Management Agreement;
(vi) the Current Issuer Paying Agent and Agent Bank Agreement;
(vii) the Current Issuer Trust Deed;
(viii) the Current Issuer Notes;
(ix) the Current Issuer Underwriting Agreement;
(x) the Current Issuer Subscription Agreement;
(xi) the Current Issuer Post-Enforcement Call Option Agreement;
(xii) the Current Issuer Corporate Services Agreement;
(xiii) any Swap Collateral Ancillary Document; and
(xiv) each other Current Issuer Transaction Document (other than
this Current Issuer Deed of Charge) entered into or to be
entered into by the Current Issuer pursuant to or in connection
with any of the documents set out in paragraphs (i) through
(xii) above (including any agreement entered into by the
Current Issuer as a replacement of any of the above agreements
upon the termination of such agreement),
including, without limitation, all rights to receive payment
of any amounts which may become payable to the Current
Issuer thereunder and all payments received by the Current
Issuer thereunder including, without limitation, all rights
to serve notices and/or make demands thereunder and/or to
take such steps as are required to cause payments to become
due and payable thereunder and all rights of action in
respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds
of any of the foregoing, TO HOLD the same unto the Note
Trustee absolutely.
3.3 Accounts: The Current Issuer, by way of first fixed security for the
payment or discharge of the Current Issuer Secured Obligations,
subject to Clause 4 (Release of Current Issuer Charged Property),
hereby assigns in favour of the Note Trustee all of
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its rights, title, benefit and interest, present and future, in and
to:
(a) the Current Issuer Transaction Accounts;
(b) any Swap Collateral Accounts; and
(c) each other account (if any) in which the Current Issuer may at
any time have or acquire any right, title, benefit or interest,
and all monies or securities now or at any time hereafter standing to
the credit thereof and the debts represented by them together with
all rights and claims relating or attached thereto including, without
limitation, the right to interest or other income or distributions
and the proceeds of any of the foregoing, TO HOLD the same unto the
Note Trustee absolutely.
3.4 Authorised Investments and Swap Collateral: The Current Issuer, by
way of first fixed charge for the payment or discharge of the Current
Issuer Secured Obligations, subject to Clause 4 (Release of Current
Issuer Charged Property), hereby charges in favour of the Note
Trustee all of its right, title, benefit and interest, present and
future in, to and under:
(a) any Authorised Investment purchased using monies standing to
the credit of any Current Issuer Bank Account; and
(b) any Swap Collateral in the form of securities,
for the time being owned by it and all rights in respect of or
ancillary to such Authorised Investments and such Swap Collateral,
including the right to income and distributions and the proceeds of
any of the foregoing, TO HOLD the same unto the Note Trustee
absolutely.
3.5 Floating Charge: The Current Issuer, by way of first floating charge
for the payment or discharge of the Current Issuer Secured
Obligations, subject to Clause 4 (Release of Current Issuer Charged
Property), hereby charges in favour of the Note Trustee the whole of
its undertaking and all its property, assets and rights, whatsoever
and wheresoever, both present and future, including without
limitation its uncalled capital, other than any property or assets
for the time being the subject of a fixed charge or effectively
assigned pursuant to any of the foregoing provisions of this Clause 3
(Current Issuer Security).
3.6 Title Guarantee: Each of the dispositions of, assignments of and
charges over property effected in or pursuant to this Clause 3
(Current Issuer Security) is made with full title guarantee.
3.7 Further Acquired Items: For the avoidance of doubt, it is hereby
confirmed that the Security Interests (including the Jersey Security
Interests) created under or pursuant to Clauses 3.1 (Funding Charged
Property) to Clause 3.4 (Authorised Investments and Swap Collateral)
(inclusive) are intended to be specific and fixed assignments, or
specific and fixed charges over (as the case may be) the property and
assets to which they relate, both present and future, including
property and assets which are acquired after the date hereof.
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3.8 No Transfer of Obligations: Notwithstanding anything else in this
Current Issuer Deed of Charge, it is hereby agreed that dispositions
of property effected in or pursuant to this Clause 3 (Current Issuer
Security) do not transfer obligations, and nothing herein shall be
construed as a transfer of obligations to, the Note Trustee.
3.9 Notice and Acknowledgement:
(a) The execution of this Current Issuer Deed of Charge by any
Current Issuer Secured Creditor shall constitute express notice
to such Current Issuer Secured Creditor of the assignments,
charges and Security Interests (including the Jersey Security
Interests) made by the Current Issuer pursuant to this Clause 3
(Current Issuer Security).
(b) By its execution of this Current Issuer Deed of Charge each
Current Issuer Secured Creditor acknowledges and consents to
the assignments, charges and Security Interests (including the
Jersey Security Interests) made or granted by the Current
Issuer under this Clause 3 (Current Issuer Security) and also
acknowledges that as at the date hereof it has not received
from any other person notice of any assignment or charge of any
property the subject of such Security Interests.
(c) Notwithstanding the assignments, charges and Security Interests
granted under or pursuant to this Clause 3 (Current Issuer
Security) and subject as provided otherwise in this Current
Issuer Deed of Charge, each of the parties hereto acknowledges
that:
(i) each Current Issuer Secured Creditor and each other party
to any Current Issuer Transaction Document may continue to
make all payments becoming due to the Current Issuer under
any Current Issuer Transaction Document in the manner
envisaged by such Current Issuer Transaction Document
until the receipt of written notice from the Note Trustee
or any Receiver requiring payments to be made otherwise;
and
(ii) until the Current Issuer Security becomes enforceable in
accordance with Clause 7.2 (Enforceable), the Current
Issuer shall be entitled to exercise its rights, powers
and discretions and perform its obligations in relation to
the Current Issuer Charged Property and under the Current
Issuer Transaction Documents in accordance with the
provisions of the Current Issuer Transaction Documents.
3.10 Note Trustee's Discretion in relation to Current Issuer Charged
Property:
Without prejudice to any other rights of the Note Trustee after the
security created under this Current Issuer Deed of Charge has become
enforceable and subject to the terms of the Current Issuer
Transaction Documents, the Note Trustee may from time to time at any
time after any part or parts of the Current Issuer Security becomes
enforceable:
(a) enter into, make, execute, sign, deliver and do all such
contracts, agreements, deeds, receipts, payments, assignments,
transfers, conveyances, assurances and things and bring,
prosecute, enforce, defend and abandon all such actions,
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suits and proceedings in relation to the Current Issuer Charged
Property as it may think expedient;
(b) exercise or refrain from exercising, in such manner as in its
absolute discretion the Note Trustee shall think fit, all or
any of the rights, powers, authorities, discretions or remedies
of the Current Issuer under or in relation to the Current
Issuer Charged Property or incidental to the ownership thereof
and, in particular but without limiting the generality of the
foregoing, exercise all rights to vote or to give any consent
or notification or make any declaration in relation to such
Current Issuer Charged Property. For the avoidance of doubt,
the Note Trustee shall not be required to have regard to the
interests of the Current Issuer in the exercise or non-exercise
of any such rights, powers, authorities, discretions and
remedies or to comply with any direction given by the Current
Issuer in relation thereto; and
(c) demand, xxx for and take any advice or institute any
proceedings to recover or obtain payment of any amounts which
may then be due and payable to the Current Issuer but which
remains unpaid under or in respect of the Current Issuer
Charged Property or any part thereof either in its own name or
in the name of the Current Issuer.
4. Release of Current Issuer Charged Property
4.1 Release, Reassignment or Discharge: Upon the irrevocable and
unconditional payment in full or discharge (or any combination of the
foregoing) of all the Current Issuer Secured Obligations and upon the
Note Trustee being satisfied that the Current Issuer is under no
further actual or contingent obligation under this Current Issuer
Deed of Charge or any other Current Issuer Transaction Document, the
Note Trustee shall, at the request and cost of the Current Issuer,
release, reassign and/or discharge from the Security Interests
(including the Jersey Security Interests) all of the Current Issuer
Charged Property to, or to the order of, the Current Issuer; provided
that where any such release, re-assignment or discharge is made in
whole or in part on the faith of any payment, security or other
disposition which is avoided or which must be repaid on bankruptcy,
liquidation or otherwise, the security constituted by this Current
Issuer Deed of Charge and the liability of the Current Issuer
hereunder shall continue as if there had been no such release,
re-assignment or discharge.
4.2 Disposal of Authorised Investments and Swap Collateral: On the making
at any time by the Current Issuer Cash Manager on behalf of the
Current Issuer of a disposal of any Authorised Investment or Swap
Collateral in the form of securities charged pursuant to Clause 3.4
(Authorised Investments and Swap Collateral), the Note Trustee shall,
if so requested by and at the sole cost and expense of the Current
Issuer, but without the Note Trustee being responsible for any loss,
costs, claims or liabilities whatsoever occasioned by so acting upon
such request, release, reassign or discharge from the Security
Interests constituted by or pursuant to this Current Issuer Deed of
Charge the relevant Authorised Investments or Swap Collateral,
provided that in the case of a disposal of an Authorised Investment,
the proceeds of such disposal are paid by the Current Issuer into the
Current Issuer Bank Accounts from which the monies to make such
Authorised Investment were originally drawn and, that in the case of
Swap Collateral, the proceeds of such disposal are paid by the
Current Issuer into the relevant Swap Collateral Cash Account or
Current Issuer Bank Account (as
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appropriate in accordance with the Cash Management Agreement) subject
to and in accordance with the provisions of this Current Issuer Deed
of Charge and the Current Issuer Transaction Documents.
4.3 Withdrawals from Current Issuer Bank Accounts and Swap Collateral
Accounts: Subject to and in accordance with this Current Issuer Deed
of Charge and the other Current Issuer Transaction Documents, the
Current Issuer Cash Manager, on behalf of the Current Issuer and the
Note Trustee, is permitted pursuant to Clause 6 (Restrictions on
Exercise of Certain Rights) from time to time to withdraw amounts
from the Current Issuer Bank Accounts in order to apply such amounts
in accordance with the relevant Current Issuer Priority of Payments
and from time to time to withdraw amounts or securities from the Swap
Collateral Accounts in order to apply such amounts or securities in
accordance with the Current Issuer Cash Management Agreement. Any
amount or securities so withdrawn shall be released from the Security
Interests (including the Jersey Security Interests) created under
this Current Issuer Deed of Charge provided that any amount withdrawn
from the Current Issuer Bank Accounts is applied in accordance with
and subject to the relevant Current Issuer Priority of Payments.
5. Declaration of Trust
Each of the Current Issuer Secured Creditors declares the Note
Trustee as trustee of, and the Note Trustee hereby declares that it
holds on trust for the Current Issuer Secured Creditors, upon and
subject to the terms and conditions of this Current Issuer Deed of
Charge, all of the covenants, undertakings and representations made
to the Note Trustee under this Current Issuer Deed of Charge and any
other Current Issuer Transaction Document and all of the charges,
assignments, security and Security Interests made or given to the
Note Trustee or to be made or given to it for the purpose of securing
the Current Issuer Secured Obligations under or pursuant to this
Current Issuer Deed of Charge or any other Current Issuer Transaction
Document.
6. Restrictions on Exercise of Certain Rights
6.1 Payments to Current Issuer Bank Accounts and Swap Collateral
Accounts: At all times prior to the release, re-assignment and/or
discharge of the Current Issuer Security pursuant to Clause 4
(Release of the Current Issuer Charged Property), the Current Issuer
shall save as otherwise provided in the Current Issuer Transaction
Documents or unless the Note Trustee otherwise agrees in writing (and
then only on such terms and in such manner as the Note Trustee may
require) procure that:
(a) the Current Issuer Bank Accounts shall from time to time be
credited with all amounts (excluding Swap Collateral Excluded
Amounts) received by the Current Issuer under or in respect of
the Current Issuer Transaction Documents, including without
limitation the following payments:
(i) amounts received by the Current Issuer from or on behalf
of Funding pursuant to the provisions of the Current
Issuer Intercompany Loan Agreement;
(ii) interest received on the Current Issuer Bank Accounts;
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(iii) amounts received by the Current Issuer from the Basis
Rate Swap Provider under the Current Issuer Basis Rate
Swap Agreement and any Swap Collateral Available Revenue
Amounts and Swap Collateral Available Principal Amounts;
(iv) amounts received by the Current Issuer from the Dollar
Currency Swap Provider under the Current Issuer Dollar
Currency Swap Agreements and any Swap Collateral Available
Revenue Amounts and Swap Collateral Available Principal
Amounts;
(v) amounts received by the Current Issuer from the Euro
Currency Swap Provider under the Current Issuer Euro
Currency Swap Agreements and any Swap Collateral Available
Revenue Amounts and Swap Collateral Available Principal
Amounts;
(vi) income received by the Current Issuer in respect of the
proceeds of any Authorised Investments;
(vii) amounts received by the Current Issuer from the Security
Trustee or a Receiver following the service of an
Intercompany Loan Enforcement Notice;
(viii) such other payments received by the Current Issuer as
are, or ought in accordance with this Current Issuer Deed
of Charge to be, comprised in the Current Issuer Charged
Property; and
(b) any Swap Collateral Accounts shall from time to time be
credited with any Swap Collateral Excluded Amounts received by
the Current Issuer pursuant to the relevant Current Issuer Swap
Agreement.
6.2 No withdrawal from Current Issuer Bank Accounts and Swap Collateral
Accounts: At all times during the subsistence of the Current Issuer
Security, the Current Issuer shall not be entitled to withdraw or
transfer from any Current Issuer Bank Account or Swap Collateral
Account any monies or securities standing to the credit thereof or
direct any payment to be made therefrom to any person save to the
extent expressly permitted under this Current Issuer Deed of Charge
without the Note Trustee's prior written consent.
6.3 Permitted Withdrawals from Current Issuer Bank Accounts and Swap
Collateral Accounts; Authorised Investments:
(a) The Current Issuer covenants with the Note Trustee that the
amounts standing to the credit of the Current Issuer Bank
Accounts and any Swap Collateral standing to the credit of a
Swap Collateral Account may only be withdrawn in accordance
with this Clause 6.3 or otherwise with the Note Trustee's prior
written consent.
(b) On any day during an Interest Period prior to the security
becoming enforceable pursuant to Clause 7.2 (Enforceable), the
Current Issuer and the Note Trustee hereby authorise the
Current Issuer Cash Manager to withdraw such monies from the
Current Issuer Transaction Accounts as are to be applied
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on such date to meet any amounts then due and payable by the
Current Issuer to third parties in accordance with item (C) of
the Current Issuer Pre-Enforcement Revenue Priority of Payments
provided that such monies are applied in making such payments
on behalf of the Current Issuer. For the purpose of this
paragraph (b), the remaining provisions of this Clause 6.3,
Clause 6.4 (Current Issuer Pre-Enforcement Revenue Priority of
Payments) and Clause 6.5 (Current Issuer Pre-Enforcement
Principal Priority of Payments), the Current Issuer Cash
Manager shall be entitled to assume that the Current Issuer
Security is not enforceable pursuant to Clause 7.2
(Enforceable) unless it has received notice from the Current
Issuer or the Note Trustee or is otherwise aware that the
Current Issuer Security has become so enforceable and shall not
be liable to the Note Trustee, the Current Issuer or any other
Current Issuer Secured Creditor for making payments based on
this assumption.
(c) The Note Trustee hereby authorises the Current Issuer Cash
Manager, prior to the security becoming enforceable pursuant to
Clause 7.2 (Enforceable), to make withdrawals from:
(i) the relevant Current Issuer Bank Account for the purposes
of acquiring Authorised Investments provided that all
amounts received in respect of the Authorised Investments
(including earnings thereon) shall be deposited into the
relevant Current Issuer Bank Account from which they were
originally drawn; and
(ii) the relevant Swap Collateral Account for the purpose of
(1) transferring or paying Swap Collateral to a Current
Issuer Swap Provider pursuant to the terms of the relevant
Current Issuer Swap Agreement; or (2) transferring Swap
Collateral Available Revenue Amounts and/or Swap
Collateral Available Principal Amounts to the relevant
Current Issuer Transaction Account.
6.4 Current Issuer Pre-Enforcement Revenue Priority of Payments: On each
Payment Date, prior to the Current Issuer Security becoming
enforceable pursuant to Clause 7.2 (Enforceable), the Note Trustee
hereby authorises the Current Issuer or the Current Issuer Cash
Manager in its place to withdraw Current Issuer Available Revenue
Receipts standing to the credit of the Current Issuer Transaction
Accounts and to apply such monies in accordance with the provisions
and the order of priority of the Current Issuer Pre-Enforcement
Revenue Priority of Payments (as the same may be amended or varied
from time to time) as set out in Schedule 2 (Cash Management and
Maintenance of Ledgers) to the Current Issuer Cash Management
Agreement.
6.5 Current Issuer Pre-Enforcement Principal Priority of Payments: On
each Payment Date prior to the Current Issuer Security becoming
enforceable pursuant to Clause 7.2 (Enforceable), the Note Trustee
hereby authorises the Current Issuer or the Current Issuer Cash
Manager in its place to withdraw Current Issuer Available Principal
Receipts standing to the credit of the Current Issuer Transaction
Accounts and to apply such monies in accordance with the order of
priority of the Current Issuer Pre-Enforcement Principal Priority of
Payments (as the same may be amended or varied from time to time) as
set out in Schedule 2 (Cash Management and Maintenance of
12
Ledgers) to the Current Issuer Cash Management Agreement.
6.6 No Enforcement by Current Issuer Secured Creditors: Each of the
Current Issuer Secured Creditors (other than the Note Trustee acting
on behalf of the Noteholders and any Receiver) hereby agrees with the
Current Issuer and the Note Trustee that:
(a) only the Note Trustee may enforce the security created in
favour of the Note Trustee by this Current Issuer Deed of
Charge in accordance with the provisions hereof;
(b) notwithstanding any other provision of this Current Issuer Deed
of Charge or any other Current Issuer Transaction Document no
sum due or owing to any Current Issuer Secured Creditor or to
the Note Trustee (whether for itself or on behalf of the
Current Issuer Secured Creditors) from or by the Current Issuer
under this Current Issuer Deed of Charge or any other Current
Issuer Transaction Document shall be payable by the Current
Issuer except to the extent that the Current Issuer or
(following enforcement of the Current Issuer Security) the Note
Trustee has sufficient funds available to it (and, in the case
of the Note Trustee, as a result of the realisation of that
security) to pay such sum subject to and in accordance with the
relevant Current Issuer Priority of Payments and provided that
all liabilities of the Current Issuer required to be paid in
priority thereto or pari passu therewith pursuant to such
Current Issuer Priority of Payments have been paid, discharged
and/or otherwise provided for in full PROVIDED THAT this
paragraph (b) shall not apply to and shall not limit the
obligations of the Current Issuer to the Noteholders under the
Current Issuer Notes and this Current Issuer Deed of Charge;
and
(c) it shall not take any steps for the purpose of recovering any
of the Current Issuer Secured Obligations (including, without
limitation, by exercising any rights of set-off) or enforcing
any rights arising out of the Current Issuer Transaction
Documents against the Current Issuer and it shall not take any
steps or legal proceedings for the winding-up, dissolution or
reorganisation of, or the institution of insolvency proceedings
against, the Current Issuer or for the appointment of a
receiver, administrator, liquidator or similar officer of the
Current Issuer in respect of any or all of its revenues and
assets,
PROVIDED THAT
(i) in the case of any Noteholder, this provision shall be
subject to Clause 7.2 (Only Note Trustee to Enforce) of
the Current Issuer Trust Deed; and
(ii) in the case of any other Current Issuer Secured Creditor
and subject to there being no Current Issuer Note then
outstanding, if the Note Trustee having become bound to do
so subject to and in accordance with the terms of this
Current Issuer Deed of Charge and the Current Issuer
Transaction Documents, fails to serve a Current Issuer
Note Enforcement Notice and/or, to take any steps or
proceedings to enforce the security created hereunder
within 30 days of becoming so bound and such failure is
continuing, each such other Current Issuer Secured Creditor
shall be entitled to take such steps and and proceedings to
enforce
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its rights arising out of the relevant Current Issuer
Transaction Document as it shall deem necessary other than
the presentation of a petition for the winding up,
dissolution or reorganisation of, or the institution of
insolvency proceedings against, the Current Issuer or the
appointment of an administrator or liquidator of the
Current Issuer.
6.7 Acknowledgement of Note Trustee: The Note Trustee hereby acknowledges
and agrees that save with respect to the obligations of the Current
Issuer to the Noteholders under the Current Issuer Notes and this
Current Issuer Deed of Charge which are not limited under paragraph
(b) of Clause 6.6 (No Enforcement by Current Issuer Secured
Creditors) or under this Clause 6.7 (Acknowledgement of Note Trustee)
and notwithstanding any other provision of this Current Issuer Deed
of Charge or any other Current Issuer Transaction Document, no sum
due or owing to any Current Issuer Secured Creditor or to the Note
Trustee (whether for itself or on behalf of the Current Issuer
Secured Creditors) from or by the Current Issuer under this Current
Issuer Deed of Charge or any other Current Issuer Transaction
Document shall be payable by the Current Issuer except to the extent
that the Current Issuer has sufficient funds available or (following
enforcement of the Current Issuer Security) the Note Trustee has
realised sufficient funds from the Current Issuer Security to pay
such sum subject to and in accordance with the relevant Current
Issuer Priority of Payments and provided that all liabilities of the
Current Issuer required to be paid in priority thereto or pari passu
therewith pursuant to such Current Issuer Priority of Payments have
been paid, discharged and/or otherwise provided for in full.
7. Enforcement
7.1 Notification: The Note Trustee shall, if practicable, give prior
notification to the Seller, Funding, the Cash Manager and the Current
Issuer Cash Manager of the Note Trustee's intention to enforce the
security created by this Current Issuer Deed of Charge. However, the
failure of the Note Trustee to provide such notification shall not in
any way prejudice the ability of the Note Trustee to enforce the
security created by this Current Issuer Deed of Charge.
7.2 Enforceable:
(a) Without prejudice to the provisions of Clause 9 (Receiver) the
security created under this Current Issuer Deed of Charge shall
become immediately enforceable and the power of sale and other
powers conferred by Section 101 of the 1925 Act, as varied or
amended by this Current Issuer Deed of Charge, shall be
exercisable by the Note Trustee:
(i) at any time when any Current Issuer Note remains
outstanding, in accordance with and subject to, Clause 6
(Enforcement) and Clause 7 (Proceedings, Action and
Indemnification) of the Current Issuer Trust Deed which
shall, as necessary, be incorporated in and apply, mutatis
mutandis, to this Current Issuer Deed of Charge (and for
that purpose references therein to "this Trust Deed" or
"these presents" shall be construed as references to this
Current Issuer Deed of Charge); or
(ii) if there are no Current Issuer Notes outstanding,
following a default in payment of any other Current Issuer
Secured Obligations on its due
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date or within any applicable grace period following such
due date stated in the relevant Current Issuer Transaction
Document but subject always to any limited recourse
provisions stated therein and to Clause 6.6 (No Enforcement
by Current Issuer Secured Creditors) hereof; or
(iii) upon the service on Funding by the Security Trustee of an
Intercompany Loan Enforcement Notice.
(b) For the purposes of the Jersey Security Interests, upon the
occurrence of any of the events specified in Clause 7.2 (a)
(i), (ii) or (iii) (which shall constitute events of default
for the purposes of the Jersey Security Interests in accordance
with the Jersey Security Law) the Note Trustee shall have the
right to give notice (the "Current Issuer Jersey Enforcement
Notice") to the Current Issuer in accordance with the Jersey
Security Law and the power of sale of the Current Issuer Jersey
Secured Property shall become exercisable without the order of
the Jersey court in accordance with the Jersey Security Law so
that the Jersey Security Interests shall be enforceable in
accordance with the provisions of the Jersey Security Law.
7.3 Power of Sale:
(a) Notwithstanding any other provision of this Current Issuer Deed
of Charge, the Current Issuer Secured Obligations shall be
deemed to have become due and payable for the purposes of
Section 101 of the 1925 Act and Article 8 of the Jersey
Security Law and (to the extent applicable) the statutory power
of sale and of appointing a receiver and other powers which are
conferred on mortgagees under the 1925 Act as varied or
extended by this Current Issuer Deed of Charge shall be deemed
to arise immediately after execution of this Current Issuer
Deed of Charge.
(b) Section 103 of the 1925 Act shall not apply to this Current
Issuer Deed of Charge and forthwith after the security has
become enforceable in accordance with Clause 7.2 (Enforceable)
the statutory power of sale, as extended by this Current Issuer
Deed of Charge, and all other powers shall become immediately
exercisable without notice to the Current Issuer and the
provisions of the 1925 Act regulating the power of sale shall,
so far as they relate to the Current Issuer Charged Property,
be varied and extended accordingly.
7.4 Law of Property Xxx 0000: Subject, in the case of the Current Issuer
Jersey Secured Property, to the provisions of the Jersey Security
Law, the provisions of the 1925 Act relating to the power of sale and
the other powers conferred by Section 101(1) and (2) are hereby
extended in relation to the Current Issuer as if such extensions were
contained in the 1925 Act such that at any time after the security
constituted by this Current Issuer Deed of Charge has become
enforceable in accordance with Clause 7.2 (Enforceable) above, the
Note Trustee may in its absolute discretion:
(a) make demand in the name of the Current Issuer Secured Creditors
or in its own right for any monies and liabilities in respect
of the Current Issuer Charged Property;
15
(b) enforce any rights it may have in respect of the whole or any
part of the Current Issuer Charged Property in such manner and
upon such terms as the Note Trustee shall think fit;
(c) take possession of, get in and collect the Current Issuer
Charged Property and perfect interests comprised therein;
(d) (subject to any restrictions under or in respect of the
relevant Current Issuer Charged Property) sell, transfer,
convey, dispose of, vary or otherwise deal with, and also grant
any option to purchase, and effect exchanges of, the whole or
any part of Current Issuer Charged Property or any interest
therein in such manner, for such consideration (if any) and
generally upon such terms (including by deferred payment or
payment by instalments) as it may think fit and/or to concur in
any of the foregoing (and nothing shall preclude any such
disposal being made to a Current Issuer Secured Creditor);
(e) carry out any transaction, scheme or arrangement which the Note
Trustee may, in its absolute discretion, consider appropriate
with a view to or in connection with the sale of the Current
Issuer Charged Property;
(f) do all or any of the things or exercise all or any of the
powers, authorities and discretions conferred expressly or by
implication on any Receiver under Clause 9.6 (Powers of the
Receiver) or otherwise under this Current Issuer Deed of
Charge; and/or
(g) exercise all or any of the powers conferred on mortgagees by
the 1925 Act as varied or extended by this Current Issuer Deed
of Charge and any other rights and remedies that may be
conferred by statute or common law or in equity on mortgagees
or receivers.
8. Upon Enforcement
8.1 Service of a Current Issuer Note Enforcement Notice: Without
prejudice to the effectiveness of any service of a Current Issuer
Note Enforcement Notice, the Note Trustee shall as soon as is
practicable notify each of the following parties of the enforcement
of the Current Issuer Security (whether by service of a copy of any
Current Issuer Note Enforcement Notice or otherwise):
(a) the Seller;
(b) Funding;
(c) the Account Bank, the Cash Manager and the Current Issuer Cash
Manager;
(d) the Paying Agents and the other Agents under the Current Issuer
Paying Agent and Agent Bank Agreement;
(e) the Current Issuer Swap Providers;
(f) the Corporate Services Provider; and
16
(g) each other Current Issuer Secured Creditor.
8.2 Crystallisation: From and including the date when the Note Trustee
serves a Current Issuer Note Enforcement Notice (which has not been
withdrawn) on the Current Issuer:
(a) notwithstanding any provision hereof or of any other Current
Issuer Transaction Document no amount may be withdrawn from the
Current Issuer Bank Accounts except with the prior written
consent of the Note Trustee; and
(b) if not already crystallised, any charge created by this Current
Issuer Deed of Charge which is a floating charge shall
crystallise, provided that the floating charge created by this
Current Issuer Deed of Charge shall not be crystallised solely
as a result of obtaining a moratorium (or anything done with a
view to obtaining a moratorium) under the Insolvency Xxx 0000
except with leave of the court.
8.3 Current Issuer Post-Enforcement Priority of Payments: At any time
after the security created by this Current Issuer Deed of Charge has
become enforceable in accordance with Clause 7.2 (Enforceable) and
provided that the relevant Current Issuer Note Event of Default has
not been waived in accordance with the provisions of this Current
Issuer Deed of Charge, Current Issuer Available Revenue Receipts,
Current Issuer Available Principal Receipts and all other monies
(excluding Swap Collateral Excluded Amounts) paid to or received or
recovered by or on behalf of the Current Issuer or the Note Trustee
or any Receiver appointed on its behalf, including all proceeds
following any sale, realisation or enforcement of the security
created under this Current Issuer Deed of Charge and all amounts
(excluding Swap Collateral Excluded Amounts) not previously
distributed and/or standing to the credit of any Current Issuer Bank
Account and Swap Collateral Account shall (if not already received by
the Note Trustee) be paid to and held by the Note Trustee on trust to
apply the same (save to the extent otherwise required by applicable
law) in accordance with the order of priority of the Current Issuer
Post-Enforcement Priority of Payments (as the same may be amended or
varied from time to time) as set out on the date hereof in Schedule 2
(Current Issuer Post-Enforcement Priority of Payments) to this
Current Issuer Deed of Charge.
8.4 Certification of Amounts:
(a) The Note Trustee shall be entitled to rely on (and to accept as
conclusive evidence save in the case of manifest error) a
certificate from each Current Issuer Secured Creditor as to the
amounts owed to such Current Issuer Secured Creditor under the
Current Issuer Transaction Documents. The Note Trustee shall
not take into account for the purpose of the application of
moneys in accordance with the Current Issuer Post-Enforcement
Priority of Payments any amounts of which it has not been
notified by the intended recipient on or prior to the date in
question.
(b) Each Current Issuer Secured Creditor will, at all times,
promptly provide the Note Trustee and/or any Receiver on
request with a certificate setting out detailed information as
to the amount of the Current Issuer Secured Obligations to
which such Current Issuer Secured Creditor is entitled and such
17
other information as the Note Trustee and/or any Receiver may
require to enable or facilitate the Note Trustee and/or any
Receiver to perform its functions hereunder or under any of the
Current Issuer Transaction Documents, such certificate to be in
a form required by the Note Trustee and/or any Receiver. In
determining the respective entitlements of the Current Issuer
Secured Creditors hereunder, such certificates shall be binding
on all of the Current Issuer Secured Creditors.
8.5 Retention Account: If the Note Trustee enforces the security created
under this Current Issuer Deed of Charge at a time when either no
amounts or not all amounts owing in respect of the Current Issuer
Secured Obligations have become due and payable or any of the Current
Issuer Secured Obligations are at such time contingent or future, the
Note Trustee or a Receiver may, for so long as no such amounts or not
all such amounts have become due and payable or any of the Current
Issuer Secured Obligations are at such time contingent or future, pay
any monies referred to in Clause 8.3 (Current Issuer Post-Enforcement
Priority of Payments), as the case may be, into, and retain such
monies in, an interest-bearing account (a "retention account") to be
held by it as security and applied by it in accordance with Clause
8.3 (Current Issuer Post-Enforcement Priority of Payments) as and
when any of the amounts referred to therein become due and payable.
8.6 Note Trustee Rights upon Enforcement: In addition to any other rights
expressly provided herein, for the period commencing upon the service
of a Current Issuer Note Enforcement Notice and terminating upon the
notification to the Current Issuer Secured Creditors by the Note
Trustee that all Current Issuer Secured Obligations have been
satisfied in full:
(a) (provided such Current Issuer Secured Creditor has received a
copy of, or other notice of the service on the Current Issuer
of, any such Current Issuer Note Enforcement Notice) each
Current Issuer Secured Creditor agrees that it will pay to the
Note Trustee or the Receiver, as the case may be, all monies
received or recovered by such Current Issuer Secured Creditor
(whether by way of set-off or otherwise) in order that such
amounts may be applied by the Note Trustee in accordance with
Clause 8.3 (Current Issuer Post-Enforcement Priority of
Payments);
(b) save as otherwise expressly provided in this Current Issuer
Deed of Charge or as required by the Note Trustee, all payments
under or arising from this Current Issuer Deed of Charge and
all amounts payable to the Current Issuer by any party to this
Current Issuer Deed of Charge under any Current Issuer
Transaction Document shall be paid to the Note Trustee or to
its order;
(c) save as otherwise expressly provided in this Current Issuer
Deed of Charge, all rights or remedies provided for by this
Current Issuer Deed of Charge or available at law or in equity
to the Current Issuer Secured Creditors are exercisable by the
Note Trustee;
(d) save as otherwise expressly provided in this Current Issuer
Deed of Charge, all rights to compel performance of the Current
Issuer Transaction Documents are exercisable by the Note
Trustee; and
18
(e) all payments in respect of the Current Issuer Secured
Obligations shall operate in satisfaction pro tanto of the
Current Issuer's covenants to the relevant Current Issuer
Secured Creditors.
9. Receiver
9.1 Appointment: At any time after the security constituted hereunder
becomes enforceable, and whether or not the Note Trustee has taken
possession of the Current Issuer Charged Property, the Note Trustee
may appoint, by writing or by deed, such person or persons (including
an officer or officers of the Note Trustee) as the Note Trustee
thinks fit to be a receiver, a receiver and manager or an
administrative receiver of the Current Issuer Charged Property or any
part thereof (each a "Receiver") and, in the case of an appointment
of more than one person, to act together or independently of the
other or others.
9.2 Removal and Replacement: Except as otherwise required by statute, the
Note Trustee may by writing or by deed remove a Receiver and appoint
another in its place or to act with a Receiver and the Note Trustee
may apply to the court for an order removing an administrative
receiver.
9.3 Extension of Appointment: The exclusion of any part of the Current
Issuer Charged Property from the appointment of the Receiver shall
not preclude the Note Trustee from subsequently extending its
appointment (or that of the Receiver replacing it) to that part of
the Current Issuer Charged Property or appointing another Receiver
over any other part of the Current Issuer Charged Property.
9.4 Agent of Current Issuer: The Receiver shall, so far as the law
permits, be the agent of the Current Issuer and the Current Issuer
alone shall be responsible for the Receiver's contracts, engagements,
acts, omissions, misconduct, negligence or default and for
liabilities incurred by it; and in no circumstances whatsoever shall
the Note Trustee or any Current Issuer Secured Creditor be in any way
responsible for or incur any liability in connection with its
contracts, engagements, acts, omissions, misconduct, negligence or
default, and if a liquidator of the Current Issuer shall be
appointed, the Receiver shall act as principal and not as agent for
the Note Trustee. Notwithstanding the generality of the foregoing,
such Receiver shall in the exercise of its powers, authorities and
discretions conform to the regulations or directions (if any) from
time to time made and given by the Note Trustee.
9.5 Remuneration: Subject as provided otherwise by applicable law, the
remuneration of the Receiver shall be fixed by the Note Trustee and
may be or include a commission calculated by reference to the gross
amount of all monies received or otherwise. Such remuneration and
such commission (if any) shall be payable hereunder by the Current
Issuer alone subject always to Clause 8.3 (Current Issuer
Post-Enforcement Priority of Payments) and the amount of such
remuneration shall form part of the Current Issuer Secured
Obligations and shall accordingly be secured on the Current Issuer
Charged Property under the security created by this Current Issuer
Deed of Charge.
9.6 Powers of the Receiver: Subject, in the case of the Current Issuer
Jersey Secured Property, to the provisions of the Jersey Security
Law, the Receiver of the Current Issuer, in addition to any powers
conferred on an administrative receiver, receiver, manager or
receiver and manager by statute or common law, shall have the power
to:
19
(a) take possession of, get in and collect the Current Issuer
Charged Property;
(b) (subject to any restrictions under or in respect of relevant
Current Issuer Charged Property) sell, transfer, convey,
license, release or otherwise dispose of vary or deal with, and
also grant any option to purchase, and effect exchanges of, the
whole or any part of the Current Issuer Charged Property or any
interest therein and grant or accept surrenders, disclaimers
and variations in relation to or otherwise affecting the
Current Issuer Charged Property in each case in such manner,
for such consideration (if any) and generally upon such terms
(including by deferred payment of payment by instalments) as it
may think fit and/or concur in any of the foregoing (and
nothing shall preclude any such disposal being made to a
Current Issuer Secured Creditor);
(c) carry out any transaction, scheme or arrangement which it may,
in its absolute discretion, consider appropriate with a view to
or in connection with the sale of the Current Issuer Charged
Property;
(d) insure the Current Issuer Charged Property against such risks
and for such amounts as it may consider prudent and obtain
bonds and performance guarantees;
(e) otherwise protect, maintain or improve, the Current Issuer
Charged Property or any part thereof in any manner and for any
purpose whatsoever as it shall think fit;
(f) transfer all or any of the Current Issuer Charged Property
and/or any of the liabilities to any other company or body
corporate, whether or not formed or acquired for the purpose
(and whether or not a subsidiary or associated company of the
Note Trustee or any other party to the Current Issuer
Transaction Documents) and to form a subsidiary or subsidiaries
of the Current Issuer;
(g) carry on and manage or concur in managing or appoint a manager
of, the whole or any part of the business of the Current Issuer
in such manner as it shall in its absolute discretion think fit
including the power to enter into any contract and to perform,
repudiate, rescind or vary any contract to which the Current
Issuer is a party;
(h) sell or concur in selling the whole or any part of the Current
Issuer's business whether as a going concern or otherwise;
(i) appoint, dismiss, engage or vary the terms of employment of any
employees, managers, agents or advisers of the Current Issuer
upon such terms as to remuneration and otherwise for such
periods as it may in its absolute discretion think fit;
(j) in connection with the exercise or proposed exercise of any of
its powers or in order to obtain payment of its remuneration or
reimbursement of its expenses (in each case, whether or not
already due), borrow or raise money from any person, without
security or on the security of the Current Issuer Charged
Property (either in priority to the security constituted by
this Current Issuer
20
Deed of Charge or otherwise) and generally in such manner and
on such terms as it may think fit;
(k) bring, defend, submit to arbitration, negotiate, compromise,
enforce, abandon and settle actions, suits, claims and
proceedings concerning or affecting the Current Issuer Charged
Property or the security created under this Current Issuer Deed
of Charge;
(l) exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Current Issuer
Charged Property or incidental to the ownership of or rights in
or to any of the Current Issuer Charged Property and to
complete or effect any transaction entered into by the Current
Issuer or disclaim, abandon or modify all or any of the
outstanding contracts or arrangements of the Current Issuer
relating to or affecting the Current Issuer Charged Property;
(m) generally carry out, or cause to be carried out any transaction
or scheme or arrangement whatsoever, whether similar or not to
any of the foregoing, in relation to the Current Issuer Charged
Property which it may consider expedient as effectual as if it
were solely and absolutely entitled to the Current Issuer
Charged Property;
(n) in connection with the exercise of any of its powers, execute
or do, or cause or authorise to be executed or done, on behalf
of or in the name of the Current Issuer or otherwise, as it may
think fit, all documents, acts or things which it may consider
appropriate;
(o) redeem, discharge or compromise any security whether or not
having priority to the security created hereunder;
(p) enter into covenants, guarantees, commitments, indemnities and
other obligations or liabilities as it shall think fit;
(q) pay and discharge out of the profits and income of the Current
Issuer Charged Property and the monies to be made by it
carrying on any such business as aforesaid the expenses in and
about the carrying on and management of such business or in the
exercise of any of the powers conferred by Clause 9 (Receivers)
or otherwise in respect of the Current Issuer Charged Property
and all outgoings which it shall think fit to pay and to apply
the residue of the said profits, income or monies in the manner
provided by Clause 8.3 (Current Issuer Post-Enforcement
Priority of Payments); and
(r) exercise any other powers, rights and/or remedies that may be
available at law or in equity including the powers referred to
in Section 1 of the Insolvency Xxx 0000.
9.7 Security: The Note Trustee may from time to time and at any time
require any such Receiver to give security for the due performance of
its duties and may fix the nature and amount of the security to be so
given but the Note Trustee shall not be bound in any such case to
require any such security.
21
9.8 Application by Receiver: Save so far as otherwise directed by the
Note Trustee, all monies from time to time received by such Receiver
shall be paid over to the Note Trustee to be held by it on the trusts
declared under this Current Issuer Deed of Charge and to be
distributed in accordance with Clause 8.3 (Current Issuer
Post-Enforcement Priority of Payments).
9.9 Payment to Receiver: The Note Trustee may pay over to such Receiver
any monies constituting part of the Current Issuer Charged Property
for the same to be applied for the purposes of this Current Issuer
Deed of Charge by such Receiver and the Note Trustee may from time to
time determine what funds the Receiver shall be at liberty to keep in
hand with a view to the performance of its duties as such Receiver.
9.10 No Restrictions: None of the restrictions imposed by the 1925 Act in
relation to the appointment of receivers or the giving of notice or
otherwise shall apply in relation to the Receiver.
9.11 Administration:
(a) Upon presentation of an application or a petition to a court of
competent jurisdiction for an administration order or a notice
of intention to appoint an administrator or the filing of
documents with the court for the appointment of an
administrator in relation to the Current Issuer or other order
having substantially the same effect to be made on application
by a creditor or creditors of the Current Issuer, the Note
Trustee shall, subject to it being indemnified to its
satisfaction, as soon as practicable appoint a Receiver in
accordance with this Current Issuer Deed of Charge (who shall,
to the extent permitted by law, be an "administrative receiver"
under Section 29 (2) of the Insolvency Act 1986) of the whole
of the Current Issuer Charged Property and, in the case of any
application to the court or petition the Note Trustee shall
instruct the Receiver to attend at the hearing of the
application or petition and take such steps as are necessary to
prevent the appointment of an administrator. The Current Issuer
Secured Creditors shall co-operate and do all acts and enter
into such further documents, deeds or agreements as the Note
Trustee may deem necessary or desirable to ensure that an
administration order is not made and that an administrative
receiver is appointed.
(b) Paragraph 14 of Schedule B1 to the Insolvency Xxx 0000 applies
to the floating charge created hereunder.
10. Further Assurance and Power of Attorney
10.1 Further Assurance: The Current Issuer covenants with and undertakes
to the Note Trustee from time to time (notwithstanding that the
security may not have become enforceable and the Note Trustee may not
have served any Current Issuer Note Enforcement Notice) upon demand:
(a) to execute, at the Current Issuer's cost, any document or do
any act or thing which the Note Trustee or any Receiver may
specify (including executing such Security Interests over its
rights in and over the Current Issuer Charged Property and any
other assets of the Current Issuer in such form as the Note
Trustee and/or any Receiver may require) with a view to:
22
(i) registering, perfecting, protecting or improving any
charge or security or Security Interest (including any
Jersey Security Interest) created or intended to be
created by or pursuant to this Current Issuer Deed of
Charge (including any act or document which may be
required or desirable under the laws of any jurisdiction
in which any property or assets may be located in order to
confer on the Note Trustee security over such property and
assets equivalent or similar to the security intended to
be conferred by or pursuant to this Current Issuer Deed of
Charge) and in such form as the Note Trustee or the
Receiver may specify; and/or
(ii) facilitating the realisation of or enforcement of rights
of, all or any part of the Current Issuer Charged Property
(including any Current Issuer Jersey Secured Property) or
the exercise, or proposed exercise, of any of the powers,
duties or discretions vested or intended to be vested in
the Note Trustee or such Receiver by or pursuant to this
Current Issuer Deed of Charge or doing any act or thing
deemed necessary by the Note Trustee or the Receiver;
(b) to give or join in giving or procure the giving of any notices
to any persons and obtain or procure that there is obtained any
necessary acknowledgements in relation to such notices, all in
such form, as the Note Trustee or the Receiver may require at
the cost of the Current Issuer,
and for the purpose of this Clause 10.1 (Further Assurance) a
certificate in writing signed by the Note Trustee to the effect that
any particular assurance or thing is required by it shall be
conclusive evidence of that fact provided that the Current Issuer
shall not be obliged to execute any such documentation or take any
other action or steps to the extent that it would breach a
restriction in any agreement to which it is a party or conflict with
any applicable law.
10.2 Execution of Power of Attorney: Immediately upon execution of this
Current Issuer Deed of Charge, the Current Issuer shall execute and
deliver to the Note Trustee the power of attorney in or substantially
in the form set out in Schedule 1 (Form of Security Power of
Attorney).
10.3 Current Issuer Charged Property on Trust: To the extent permitted to
do so under the Current Issuer Transaction Documents, for the purpose
of giving effect to this Current Issuer Deed of Charge, the Current
Issuer hereby declares that, after service of a Current Issuer Note
Enforcement Notice, it will hold all the Current Issuer Charged
Property (subject to the right of redemption) upon trust to convey,
assign or otherwise deal with such Current Issuer Charged Property in
such manner and to such person as the Note Trustee shall direct
pursuant to this Current Issuer Deed of Charge, and declares that it
shall be lawful for the Note Trustee to appoint a new trustee or
trustees of the Current Issuer Charged Property in place of the
Current Issuer.
11. Crystallisation
11.1 Notice: In addition and without prejudice to any other event
resulting in a crystallisation of the floating charges created by
this Current Issuer Deed of Charge or any other right the Note
Trustee may have, the Note Trustee may, by notice in writing
23
to the Current Issuer, declare that the floating charges hereby created
shall be converted into first specific fixed charges over such of the
undertaking, property and assets of the Current Issuer as the Note
Trustee may specify in such notice at any time if:
(a) a Current Issuer Note Event of Default or a Current Issuer
Potential Note Event of Default has occurred; or
(b) the Note Trustee believes that the Current Issuer Charged
Property or any part thereof is in danger of being seized or
sold under any form of distress, execution or diligence levied
or is otherwise in jeopardy; or
(c) the Note Trustee considers that it is desirable in order to
protect the priority of the security created by this Current
Issuer Deed of Charge,
provided that the floating charges created by this Current Issuer
Deed of Charge may not be converted into a fixed charge solely as a
result of the obtaining of a moratorium (or anything done with a view
to obtaining a moratorium) under the Insolvency Xxx 0000 without the
leave of the court.
11.2 Automatic Crystallisation: In addition and without prejudice to any
other event resulting in a crystallisation of the floating charge
contained herein and without prejudice to any rule of law which may
have a similar effect, the floating charge created under this Current
Issuer Deed of Charge shall automatically and without notice be
converted with immediate effect into a fixed charge as regards:
(a) all property, assets or undertaking of the Current Issuer
subject to the floating charge, upon:
(i) the presentation of a petition for the compulsory
winding-up of the Current Issuer;
(ii) the convening of a meeting for the passing of a resolution
for the voluntary winding-up of the Current Issuer;
(iii) the presentation of a petition for or the making of an
application for an administration order or the filing of
documents with the court for the appointment of an
administrator or the service of a notice of intention to
appoint an administrator in relation to the Current
Issuer;
(iv) the presentation or making of an application for a warrant
of execution, writ of fieri facias, garnishee order or
charging order in respect of any of the assets of the
Current Issuer subject to the floating charge;
(v) the occurrence of a Current Issuer Note Event of Default;
and/or
(b) any property, assets or undertaking of the Current Issuer,
which become subject to an Encumbrance in favour of any person
other than the Note Trustee or which is/are the subject of a
sale, transfer or other disposition, in either case, contrary
to the covenants and undertakings contained in the Current
Issuer Transaction Documents, immediately prior to such
Encumbrance arising or such sale, transfer or other disposition
being made,
24
provided that the floating charges created by this Current Issuer
Deed of Charge may not be converted into a fixed charge solely as a
result of the obtaining of a moratorium (or anything done with a view
to obtaining a moratorium) under the Insolvency Xxx 0000 without the
leave of the court.
12. Provisions relating to the Security
12.1 Continuing Security: The security created under or pursuant to this
Current Issuer Deed of Charge shall be:
(a) in addition to and independent of and shall not operate so as
to prejudice or affect or merge in any other security, right of
recourse or other right whatsoever which may be held by any of
the Current Issuer Secured Creditors or the Note Trustee on
their behalf in respect of the whole or any part of the Current
Issuer Secured Obligations and shall not be affected by any
release, reassignment or discharge of such other security; and
(b) a continuing security for the Current Issuer Secured
Obligations and shall remain in force as continuing security
for the Current Issuer Secured Creditors and shall not be
considered as satisfied or discharged by any intermediate
payment or settlement of the whole or any part of the Current
Issuer Secured Obligations or the existence at any time of a
credit balance on any current or other account or any other
matter or thing whatsoever.
12.2 Consolidation: Section 93 of the 1925 Act shall not apply in relation
to any of the charges contained in this Current Issuer Deed of
Charge.
12.3 Ruling Off: If the Note Trustee receives notice of any Encumbrance
affecting the whole or any part of the Current Issuer Charged
Property or any security granted hereunder in contravention of the
provisions hereof:
(a) the Note Trustee may open a new account in the name of the
Current Issuer and, if it does not, it shall nevertheless be
deemed to have done so at the time it received such notice; and
(b) all payments made by the Current Issuer to the Note Trustee
after the Note Trustee receives such notice shall be credited
or deemed to have been credited to the new account, and in no
circumstances whatsoever shall operate to reduce the Current
Issuer Secured Obligations as at the time the Note Trustee
received such notice.
12.4 Avoidance of Payments: Any settlement, discharge or release between
(a) the Current Issuer and (b) the Note Trustee or any Receiver (the
"Relevant Person(s)") shall be conditional upon no security or
payment granted or made to the Relevant Person(s) by the Current
Issuer or any other person being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency or
liquidation for the time being in force and, in the event of such
security or payment being so avoided or reduced, the Relevant
Person(s) shall be entitled to recover the value or amount of such
security or payment from the Current Issuer and from the security
subsequently as if such settlement, discharge or release had not
occurred.
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12.5 Retention of Charges: If the Note Trustee shall have reasonable
grounds for believing that the Current Issuer may be insolvent or
deemed to be insolvent pursuant to the provisions of the Insolvency
Xxx 0000 (and production of a solvency certificate of a duly
authorised officer of the Current Issuer shall be prima facie
evidence of the solvency of the Current Issuer) as at the date of any
payment made by the Current Issuer to the Note Trustee and that as a
result, such payment may be capable of being avoided or clawed back,
the Note Trustee shall be at liberty to retain the charges contained
in or created pursuant to this Current Issuer Deed of Charge until
the expiry of a period of one month plus such statutory period within
which any assurance, security, guarantee or payment can be avoided or
invalidated after the payment and discharge in full of all Current
Issuer Secured Obligations notwithstanding any release, settlement,
discharge or arrangement which may be given or made by the Note
Trustee on, or as a consequence of, such payment or discharge of
liability provided that, if at any time within such period, a
petition shall be presented to a competent court for an order for the
winding up or the making of an administration order in respect of the
Current Issuer, or if the Current Issuer shall commence to be wound
up or to go into administration or any analogous proceedings shall be
commenced by or against the Current Issuer, as the case may be, the
Note Trustee shall be at liberty to continue to retain such security
for such further period as the Note Trustee may determine and such
security shall be deemed to continue to have been held as security
for the payment and discharge to the Note Trustee of all Current
Issuer Secured Obligations.
12.6 Possession: Entry into possession of the Current Issuer Charged
Property or any part thereof shall not render the Note Trustee or any
Receiver of the Current Issuer liable to account as mortgagee in
possession for anything except actual receipts. If and whenever the
Note Trustee or the Receiver enters into possession of the Current
Issuer Charged Property, it shall be entitled at any time to go out
of such possession.
12.7 Change of Name, etc.: This Deed shall remain valid and enforceable
notwithstanding any change in the name, composition or constitution
of the Note Trustee or the Current Issuer or any amalgamation, merger
or consolidation by the Note Trustee or the Current Issuer, with any
other corporation (whether, in the case of the Current Issuer,
permitted under the Current Issuer Transaction Documents or not).
13. Protection of Third Parties
13.1 No Enquiry: No purchaser from, or other person dealing with, the Note
Trustee or a Receiver shall be concerned to enquire whether any of
the powers exercised or purported to be exercised under this Current
Issuer Deed of Charge has arisen or become exercisable, whether the
Current Issuer Secured Obligations remain outstanding or have become
payable, whether the Note Trustee or the Receiver is authorised to
act or as to the propriety or validity of the exercise or purported
exercise of any power; and the title and the position of such a
purchaser or other person shall not be impeachable by reference to
any of those matters and all the protection to purchasers contained
in Sections 104 and 107 of the 1925 Act shall apply to any person
purchasing from or dealing with the Note Trustee or any such
Receiver.
13.2 Receipts to Current Parties: Upon any sale, calling in, collection,
enforcement or other realisation of the Current Issuer Charged
Property in accordance with the terms hereof and upon any other
dealing or transaction under or pursuant to this Current
26
Issuer Deed of Charge, the receipt of the Note Trustee or any Receiver
shall be an absolute and a conclusive discharge to a purchaser or
other person dealing with the Note Trustee or such Receiver and shall
relieve it of any obligation to see to the application of any monies
paid to or by the direction of the Note Trustee or such Receiver.
14. Set-Off
The Note Trustee may at any time after the security created under
this Current Issuer Deed of Charge has become enforceable in
accordance with Clause 7.2 (Enforceable) without notice and
notwithstanding any settlement of account or other matter whatsoever
combine or consolidate all or any existing accounts of the Current
Issuer whether in its own name or jointly with others and held by it
or any Current Issuer Secured Creditor and may set-off or transfer
all or any part of any credit balance or any sum standing to the
credit of any such account (whether or not the same is due to the
Current Issuer from the Note Trustee or relevant Current Issuer
Secured Creditor and whether or not the credit balance and the
account in debit or the Current Issuer Secured Obligations are
expressed in the same currency in which case the Note Trustee is
hereby authorised to effect any necessary conversions at its
prevailing rates of exchange) in or towards satisfaction of any of
the Current Issuer Secured Obligations (and on or at any time after
the security created under this Current Issuer Deed of Charge has
become enforceable in accordance with Clause 7.2 (Enforceable) the
Security Trustee may make such application notwithstanding any
specified maturity of any deposits), but subject always to the
Current Issuer Priority of Payments, and may in its absolute
discretion estimate the amount of any liability of the Current Issuer
which is contingent or unascertained and thereafter set-off such
estimated amount and no amount shall be payable by the Note Trustee
to the Current Issuer unless and until all the Current Issuer Secured
Obligations have been ascertained and fully repaid or discharged.
15. Representations and Covenants
15.1 Representations and Warranties:
(a) The Current Issuer hereby represents to the Note Trustee that
it is, as of the date hereof, the beneficial owner of all of
the Current Issuer Charged Property free and clear of all
liens, claims, charges or Encumbrances except those
specifically created by this Current Issuer Deed of Charge and
undertakes that it will retain all rights associated with
ownership of the Current Issuer Charged Property free and clear
of all liens, claims, charges, Encumbrances except those
specifically created by this Current Issuer Deed of Charge or
any other Current Issuer Transaction Document.
(b) The Current Issuer represents that it has taken all necessary
steps to enable it to create the Security Interests in respect
of the Current Issuer Charged Property in accordance with this
Current Issuer Deed of Charge and has taken no action or steps
which will or may prejudice its right, title and interest in,
to and under the Current Issuer Charged Property.
15.2 Negative Covenants: The Current Issuer hereby undertakes that, for so
long as any Current Issuer Secured Obligation remains outstanding,
the Current Issuer shall not,
27
save to the extent contemplated or provided in the Current Issuer
Transaction Documents or unless it has obtained the prior written
consent of the Note Trustee:
(a) open or maintain any bank account or deposit account with any
bank or any other financial institution other than the Current
Issuer Bank Accounts or close the Current Issuer Bank Accounts;
(b) either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or
involuntarily, sell, transfer, lease or otherwise dispose of or
grant any option over all or any part of its property, assets
or undertaking or any interest, estate, right, title or benefit
therein or agree or purport to do any of the foregoing;
(c) create or permit to subsist any Security Interest (unless
arising by operation of law) over or in respect of any of its
property, assets (including any uncalled capital) or
undertaking, present or future;
(d) incur any indebtedness in respect of borrowed money whatsoever
or give any guarantee or indemnity in respect of any
indebtedness of or of any obligation or any person;
(e) pay any dividend or make any other distribution to its
shareholder or issue any further shares;
(f) consolidate or merge with any other person or convey or
transfer its properties or assets substantially as an entirety
to any other person;
(g) consent to any amendment to, or variation of or agree to waive
or authorise any breach of any provision of any of the Current
Issuer Transaction Documents or permit any person whose
obligations form part of the Current Issuer Charged Property to
be released from its respective obligations;
(h) offer to surrender to any company any amounts which are
available for surrender by way of group relief within Chapter
IV of Part X of the Income and Corporation Taxes Act 1988
except for full payment at the current applicable rate of
corporation tax applied to the surrendered amount and payable
at the date when corporation tax is due to be paid by the
claimant or would be due in the absence of the surrender;
(i) do any act or thing the effect of which would be to make the
Current Issuer resident in any jurisdiction other than the
United Kingdom;
(j) permit any person other than the Current Issuer and the Note
Trustee to have any equitable interest in any of its property,
assets or undertakings or any interest, estate, right, title or
benefit therein;
(k) purchase or otherwise acquire any Note or Notes (including the
Current Issuer Notes); or
(l) engage in any activities in the United States (directly or
through agents), nor derive any income from United States
sources as determined under United States income tax principles
and will not hold any property if doing so would
28
cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United
States tax principles.
15.3 Positive covenants: The Current Issuer covenants and undertakes with
the Note Trustee for the benefit of the Current Issuer Secured
Creditors that it shall:
(a) Registration of Security: file or procure the filing with the
Registrar of Companies pursuant to Chapter I of Part XII of the
Companies Xxx 0000 of duly completed Forms 395 together with an
executed original of this Current Issuer Deed of Charge and the
required fee within 21 days after the date of this Current
Issuer Deed of Charge;
(b) Notice of Assignment: on the date hereof join with the Note
Trustee in giving notice of the assignments and the security
created under or pursuant to this Current Issuer Deed of Charge
to Funding, the Security Trustee and each other party to any
Current Issuer Transaction Document not being a party to this
Current Issuer Deed of Charge and for the purposes of the
Jersey Security Interests to any person from whom the Current
Issuer would have been entitled to claim the collateral (but
for the Jersey Security Interests) and on any date hereafter
(to the extent only that such notice and acknowledgement is not
given under or pursuant to this Current Issuer Deed of Charge)
join with the Note Trustee in giving notice of the assignments
and the security created under this Current Issuer Deed of
Charge to any party to a Current Issuer Transaction Document
entered into by the Current Issuer after the date hereof and,
for the purposes of the Jersey Security Interests, to any
person from whom the Current Issuer would have been entitled to
claim the collateral (but for the Jersey Security Interests),
in each case in the form (or substantially in the form) set out
in Schedule 3 (Form of Notice of Assignment);
(c) Accounts for Stock Exchange: cause to be prepared and certified
by the Auditors of the Current Issuer in respect of each
Financial Year, accounts in such form as will comply with
relevant legal and accounting requirements for the time being
and all requirements for the time being of any stock exchange
on which the Current Issuer Notes are listed;
(d) Books and Records: at all times keep or procure the keeping of
such books of account and records as may be necessary to comply
with all applicable laws and so as to enable accounts of the
Current Issuer to be prepared and allow the Note Trustee and
any person or persons appointed by the Note Trustee free access
to such books of account and records at all reasonable times
during normal business hours upon reasonable notice in writing,
provided that such inspection shall only be for the purposes of
carrying out its duties under this Current Issuer Deed of
Charge and any information so obtained shall only be used and
passed on to any other person for the purpose of the Note
Trustee carrying out its duties under this Current Issuer Deed
of Charge;
(e) Notice of Current Issuer Note Event of Default: give notice in
writing to the Note Trustee forthwith upon becoming aware of
the occurrence of any Current Issuer Note Event of Default or
Current Issuer Potential Note Event of Default including the
status of any such default or matter and what action the
Current
29
Issuer is taking or proposes to take with respect thereto,
without waiting for the Note Trustee to take any action;
(f) Certificates Relating to Financial Information: give to the
Note Trustee (a) within seven days after demand by the Note
Trustee therefor and (b) (without the necessity for any such
demand) promptly after the publication of its audited accounts
in respect of each Financial Year commencing with the Financial
Year first ending after the date hereof and in any event not
later than 180 days after the end of each such Financial Year a
certificate signed by two directors of the Current Issuer to
the effect that as at a date not more than seven days before
delivering such certificate (the "certification date") there
did not exist and had not existed since the certification date
of the previous certificate (or in the case of the first such
certificate the date hereof) any Current Issuer Note Event of
Default or any Current Issuer Potential Note Event of Default
(or if such then exists or existed specifying the same) and
that during the period from and including the certification
date of the last such certificate (or in the case of the first
such certificate the date hereof) to and including the
certification date of such certificate the Current Issuer has
complied with all its obligations contained in this Current
Issuer Deed of Charge and each of the other Current Issuer
Transaction Documents or (if such is not the case) specifying
the respects in which it has not so complied;
(g) Further Assurances: so far as permitted by applicable law, at
all times execute all such further documents and do all such
further acts and things as may be necessary at any time or
times in the opinion of the Note Trustee to give effect to this
Current Issuer Deed of Charge and the other Current Issuer
Transaction Documents;
(h) Compliance with Current Issuer Transaction Documents: observe
and comply with its obligations and use its reasonable
endeavours to procure that each other party to any of the
Current Issuer Transaction Documents complies with and performs
all its respective obligations under each Current Issuer
Transaction Document and not make any amendment or modification
to such agreement or agree to waive or authorise any breach
thereof without the prior written approval of the Note Trustee
and notify the Note Trustee forthwith upon becoming aware of
any breach by any such other party to any Current Issuer
Transaction Document;
(i) Information: so far as permitted by applicable law, give or
procure to be given to the Note Trustee such opinions,
certificates, information and evidence as it shall require and
in such form as it shall require (including without limitation
the procurement by the Current Issuer of all such certificates
called for by the Note Trustee pursuant to this Current Issuer
Deed of Charge) for the purpose of the discharge or exercise of
the duties, trusts, powers, authorities and discretions vested
in it under this Current Issuer Deed of Charge or by operation
of law;
(j) Taxes: duly and promptly pay and discharge all Taxes imposed
upon it or its assets unless such Taxes are, in the opinion of
the Note Trustee, being contested in good faith by the Current
Issuer;
30
(k) Basis Rate Swap Agreement: in the event of termination of the
Current Issuer Basis Rate Swap Agreement, notify the Note
Trustee and the Rating Agencies and use its best efforts to
enter into a replacement basis rate swap agreement upon terms
acceptable to the Rating Agencies and the Note Trustee with a
basis rate swap provider whom the Rating Agencies have
previously confirmed in writing to the Current Issuer and the
Note Trustee will not cause the then-current ratings of the
Current Issuer Notes to be downgraded, withdrawn or qualified;
and
(l) Currency Swap Agreements:
(i) Dollar Currency Swap Agreements: in the event of
termination of any Transaction (as defined in the Current
Issuer Dollar Currency Swap Agreements) under any Current
Issuer Dollar Currency Swap Agreement, notify the Note
Trustee and the Rating Agencies and use its best efforts
to enter into a replacement of that Transaction in respect
of the Dollar Notes (or, as applicable, the relevant class
of the Dollar Notes) upon terms acceptable to the Rating
Agencies and the Note Trustee with a dollar currency swap
provider whom the Rating Agencies have previously
confirmed in writing to the Current Issuer and the Note
Trustee will not cause the then-current ratings of the
Current Issuer Notes to be downgraded, withdrawn or
qualified;
(ii) Euro Currency Swap Agreements: in the event of termination
of any Transaction (as defined in the Current Issuer Euro
Currency Swap Agreements) under any Current Issuer Euro
Currency Swap Agreement, notify the Note Trustee and the
Rating Agencies and use its best efforts to enter into a
replacement of that Transaction in respect of the Euro
Notes (or, as applicable, the relevant class of the Euro
Notes) upon terms acceptable to the Rating Agencies and
the Note Trustee with a euro currency swap provider whom
the Rating Agencies have previously confirmed in writing
to the Current Issuer and the Note Trustee will not cause
the then-current ratings of the Current Issuer Notes to be
downgraded, withdrawn or qualified;
(m) Bank Accounts: in the event of termination of the Current
Issuer Bank Account Agreement, subject to and in accordance
with the provisions of the Current Issuer Bank Account
Agreement use its reasonable endeavours to enter into a
replacement bank account agreement;
(n) Cash Management Agreement: in the event of termination of the
Current Issuer Cash Management Agreement, subject to and in
accordance with the provisions of the Current Issuer Cash
Management Agreement, use its reasonable endeavours to enter
into a replacement cash management agreement.
In addition to the foregoing, the Current Issuer hereby covenants
with each of the Current Issuer Swap Providers, that it shall not
make any amendment or modification to, or exercise any waiver in
respect of, the Current Issuer Cash Management Agreement which would
be adversely prejudicial to the interests of any Current Issuer Swap
31
Provider, without the prior written consent of the affected Current
Issuer Swap Provider save that to the extent required, such consent
shall not be unreasonably withheld or delayed.
16. Note Trustee Provisions
16.1 Supplement to Trustee Acts: It is hereby agreed that Clause 10
(Supplement to Trustee Acts) of the Current Issuer Trust Deed shall
be incorporated in and shall apply, mutatis mutandis, to this Current
Issuer Deed of Charge (and for that purpose references therein to
"these presents" or to "this Deed" shall be construed as references
to this Current Issuer Deed of Charge) provided that for the purposes
of Clause 10.3(q) of the Current Issuer Trust Deed at any time after
the redemption in full of the Current Issuer Notes, the Note Trustee
shall have regard to the interests of the Current Issuer Secured
Creditor which ranks next highest under the Current Issuer
Post-Enforcement Priority of Payment.
16.2 Appointment, Removal and Retirement: It is hereby agreed that Clause
14 (Appointment, Removal and Retirement of Note Trustee) of the
Current Issuer Trust Deed shall be incorporated in and shall apply,
mutatis mutandis, to this Current Issuer Deed of Charge (and for that
purpose references therein to "these presents" or to "this Deed"
shall be construed as references to this Current Issuer Deed of
Charge) provided that for the purposes of this Current Issuer Deed of
Charge it shall be an additional requirement that the Note Trustee
under this Current Issuer Deed of Charge shall be the same person or
persons as the Note Trustee under the Current Issuer Trust Deed.
16.3 Remuneration and Indemnification of Note Trustee: It is hereby agreed
that Clause 9 (Remuneration and Indemnification of Note Trustee) of
the Current Issuer Trust Deed shall be incorporated in and shall
apply, mutatis mutandis, to this Current Issuer Deed of Charge (and
for that purpose references therein to "these presents" or to "this
Deed" shall be construed as references to this Current Issuer Deed of
Charge).
16.4 Meetings of Noteholders: It is hereby agreed that Schedule 4
(Provisions for Meetings of Noteholders) of the Current Issuer Trust
Deed shall be incorporated in and shall apply, mutatis mutandis, to
this Current Issuer Deed of Charge.
16.5 Investment of Moneys: It is hereby agreed that Clause 8.3 (Authorised
Investments) of the Current Issuer Trust Deed shall be incorporated
in and shall apply, mutatis mutandis, to this Current Issuer Deed of
Charge.
16.6 Acknowledgement: Each of the parties to this Current Issuer Deed of
Charge hereby acknowledges that it is bound by the provisions of the
Current Issuer Trust Deed which are incorporated by reference into
this Current Issuer Deed of Charge and confirms that it has received
a copy of the Current Issuer Trust Deed.
16.7 Jersey Law Waivers:
(a) Any right which at any time the Current Issuer has under the
existing or future laws of Jersey whether by virtue of the
droit de discussion or otherwise to require that recourse be
had to the assets of any other person before any claim is
enforced against the Current Issuer in respect of the
obligations hereby assumed by the Current Issuer is hereby
abandoned and waived.
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(b) The Current Issuer undertakes that if at any time any person
indemnified sues the Current Issuer in respect of any such
obligations and the person in respect of whose obligations the
indemnity is given is not sued also, the Current Issuer shall
not claim that such person be made a party to the proceedings
and the Current Issuer agrees to be bound by this indemnity
whether or not it is made a party to legal proceedings for the
recovery of the amount due or owing to the person indemnified,
as aforesaid, by the person in respect of whose obligations the
indemnity is given and whether the formalities required by any
law of Jersey whether existing or future in regard to the
rights or obligations of securities shall or shall not have
been observed.
(c) Any right which the Current Issuer may have under the existing
or future laws of Jersey whether by virtue of the droit de
division or otherwise to require that any liability under the
indemnity referred to in (b) above be divided or apportioned
with any other person or reduced in any manner whatsoever is
hereby abandoned and waived.
17. Modification and Waiver
17.1 Modification: The Note Trustee may without the consent or sanction of
the Noteholders or any other Current Issuer Secured Creditor at any
time and from time to time concur with the Current Issuer in making
any modification (except a Basic Terms Modification (as defined in
paragraph 1 of Schedule 4 (Provisions for Meetings of Noteholders) to
the Current Issuer Trust Deed) (i) to this Current Issuer Deed of
Charge, the Current Issuer Notes, the Current Issuer Trust Deed or to
any of the other Transaction Documents which in the opinion of the
Note Trustee it may be proper to make PROVIDED THAT the Note Trustee
is of the opinion that such modification will not be materially
prejudicial to the interests of the Noteholders or (ii) to this
Current Issuer Deed of Charge, the Current Issuer Notes, the Current
Issuer Trust Deed or any of the other Transaction Documents if in the
opinion of the Note Trustee such modification is of a formal, minor
or technical nature or to correct a manifest error or proven error.
For the purposes of this Clause 17.1 (Modification), a proposed
modification will not materially harm the interest of any Noteholder
solely as a result of any New Issuer executing a Deed of Accession
pursuant to Clause 3.12 (New Intercompany Loans) of the Funding Deed
of Charge or Clause 2.2 (New Intercompany Loan Agreement) of the
Intercompany Loan Terms and Conditions. Any such modification may be
made on such terms and subject to such conditions (if any) as the
Note Trustee may determine, shall be binding upon the Current Issuer
and the Current Issuer Secured Creditors and, unless the Note Trustee
agrees otherwise, shall be notified by the Current Issuer to the
Noteholders in accordance with the Conditions and to the other
Current Issuer Secured Creditors as soon as practicable thereafter.
So long as any of the Current Issuer Notes are rated by the Rating
Agencies, the Current Issuer shall notify the Rating Agencies in
writing as soon as reasonably practicable thereafter of any
modification to the provisions of this Current Issuer Deed of Charge,
the Current Issuer Notes, the Current Issuer Trust Deed or any of the
other Current Issuer Transaction Documents.
17.2 Waiver: Subject as expressly provided otherwise in the Current Issuer
Notes or in any other Transaction Document, the Note Trustee may from
time to time and at any time without the consent or sanction of the
Noteholders or any other Current Issuer Secured Creditor and without
prejudice to its rights in respect of any subsequent
33
breach, but only if and in so far as in its opinion the interests of
the Noteholders shall not be materially prejudiced thereby waive or
authorise any breach or proposed breach by the Current Issuer or any
other party thereto of any of the covenants or provisions contained in
this Current Issuer Deed of Charge or in any of the other Transaction
Documents or determine that any Current Issuer Note Event of Default
shall not be treated as such for the purposes of this Current Issuer
Deed of Charge, the Current Issuer Notes and the Current Issuer Trust
Deed PROVIDED ALWAYS THAT the Note Trustee shall not exercise any
powers conferred on it by this Clause 17.2 (Waiver) in contravention
of any express direction given by Extraordinary Resolution or by a
request in writing of the relevant Noteholders in accordance with the
Conditions (but so that no such direction or request shall affect any
waiver, authorisation or determination previously given or made). Any
such waiver, authorisation or determination:
(a) may be given or made on such terms and subject to such
conditions (if any) as the Note Trustee may determine;
(b) shall be binding on the Noteholders and the other Current
Issuer Secured Creditors, if, but only if, the Note Trustee
shall so require; and
(c) shall be notified by the Current Issuer to the Noteholders in
accordance with the Conditions and to the other Current Issuer
Secured Creditors as soon as practicable thereafter.
The provisions of this Clause 17.2 (Waiver) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded
from this Current Issuer Deed of Charge, the Current Issuer Notes and
the Current Issuer Trust Deed as permitted by the Trust Indenture
Act.
18. Miscellaneous Provisions
18.1 Evidence of Indebtedness: In any action, proceedings or claim
relating to this Current Issuer Deed of Charge or the charges
contained in this Current Issuer Deed of Charge, a statement as to
any amount due to any Current Issuer Secured Creditor or of the
Current Issuer Secured Obligations or any part thereof or a statement
of any amounts which have been notified to the Note Trustee as being
amounts due to any Current Issuer Secured Creditor which is certified
as being correct by an officer of the Note Trustee or an officer of
the relevant Current Issuer Secured Creditor shall, save in the case
of manifest error, be conclusive evidence that such amount is in fact
due and payable.
18.2 Liability: All the liabilities and obligations of the Current Issuer
under or by virtue of this Current Issuer Deed of Charge shall not be
impaired by:
(a) any failure of this Current Issuer Deed of Charge to be legal,
valid, binding and enforceable as regards the Current Issuer
whether as a result of a lack of corporate powers or of
directors' authority, defective execution or for any other
reason whatsoever;
(b) any giving of time, forbearance, indulgence or waiver as
regards the Current Issuer;
34
(c) a discharge or release of the Current Issuer; or
(d) any other matter or event whatsoever whether similar to the
foregoing or not which might have the effect of impairing all
or any of its liabilities or obligations except proper and
valid payment or discharge of all Current Issuer Secured
Obligations and amounts whatsoever which this Current Issuer
Deed of Charge provides are to be paid by the Current Issuer or
an absolute discharge or release of the Current Issuer signed
by the Current Issuer Secured Creditors and the Note Trustee.
18.3 Current Issuer Secured Creditors: Each Current Issuer Secured
Creditor shall be bound by the provisions of this Current Issuer Deed
of Charge as if it contained covenants by each Current Issuer Secured
Creditor in favour of the Note Trustee and every other Current Issuer
Secured Creditor to observe and be bound by all the provisions of
this Current Issuer Deed of Charge expressed to apply to the Current
Issuer Secured Creditors.
19. Rights cumulative
The respective rights of the Note Trustee, the Current Issuer Secured
Creditors and any Receiver to this Current Issuer Deed of Charge are
cumulative and may be exercised as often as each considers
appropriate and are in addition to their respective rights under the
general law. No failure on the part of the Note Trustee, the Current
Issuer Secured Creditors or any Receiver to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other
right. The remedies in this Current Issuer Deed of Charge are
cumulative and not exclusive of any remedies provided by law.
20. Assignment
None of the Current Issuer Secured Creditors may assign, encumber or
transfer all or any part of its rights or benefits and/or transfer
its obligations under this Current Issuer Deed of Charge without the
prior written consent of the Note Trustee.
21. Non Petition Covenant; Corporate Obligations
21.1 Non Petition: Each of the parties hereto hereby agrees that it shall
not institute against the Current Issuer any winding-up,
administration, insolvency or similar proceedings for so long as any
sum is outstanding under Current Issuer Notes or for two years plus
one day since the last day on which any such sum was outstanding
provided that the Note Trustee may prove or lodge a claim in the
event of a liquidation initiated by any other person.
21.2 Corporate Obligations: To the extent permitted by law, no recourse
under any obligation, covenant, or agreement of any person contained
in this Current Issuer Deed of Charge shall be had against any
shareholder, officer or director of such person as such, by the
enforcement of any assessment or by any legal proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood
that this Agreement is a corporate obligation of each person
expressed to be a party hereto and no personal liability shall attach
to or be incurred by the shareholders, officers, agents
35
or directors of such person as such, or any of them, under or by
reason of any of the obligations, covenants or agreements of such
person contained in this Current Issuer Deed of Charge, or implied
therefrom, and that any and all personal liability for breaches by
such person of any of such obligations, covenants or agreements,
either under any applicable law or by statute or constitution, of
every such shareholder, officer, agent or director is hereby expressly
waived by each person expressed to be a party hereto as a condition of
and consideration for the execution of this Current Issuer Deed of
Charge.
22. Notices
Any notices or other communication or document to be given or
delivered pursuant to this Current Issuer Deed of Charge to any of
the parties hereto shall be sufficiently served if sent by prepaid
first class post, by hand or by facsimile transmission and shall be
deemed to be given (in the case of facsimile transmission) when
despatched or (where delivered by hand) on the day of delivery if
delivered before 17.00 hours on a London Business Day or on the next
London Business Day if delivered thereafter or (in the case of first
class post) when it would be received in the ordinary course of the
post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 03-3
plc, Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number 020 7606 0643) for the attention of the Company
Secretary with a copy to Northern Rock plc, Northern Xxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX (facsimile number
0191 213 2203) for the attention of the Group Secretary;
(b) in the case of the Note Trustee, to The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, attention Corporate
Trust (Global Structured Finance) (facsimile number 020 7964
6399);
(c) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent or the Account Bank, to Citibank,
N.A., 0 Xxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX;
(d) in the case of the Current Issuer Cash Manager to Northern Rock
plc, Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(e) in the case of the U.S. Paying Agent, to Citibank, N.A., 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxxx 0, Xxx Xxxx, X.X. 00000, X.X.X.
(facsimile number 000 000 0000) for the attention of Global
Agency and Trust;
(f) in the case of the Basis Rate Swap Provider, to Northern Rock
plc, Xxxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(g) in the case of the Dollar Currency Swap Provider to [o];
(h) in the case of the Euro Currency Swap Provider to [o];
36
(i) in the case of the Corporate Services Provider, to Law
Debenture Corporate Services Limited, Xxxxx Xxxxx, 000 Xxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020 7606 0643) for
the attention of the Company Secretary;
(j) in the case of Moody's, to Xxxxx'x Investor Services, 1st
Floor, 0 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX
(facsimile number 020 7772 5400) for the attention of Head of
Monitoring Group, Structured Finance;
(k) in the case of S&P, to Standard & Poor's, Garden House, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 020 7826
3598) for the attention of the Structured Finance Surveillance
Group; and
(l) in the case of Fitch, to Fitch Ratings Limited, Xxxxx Xxxxx, 0
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number: 020 7417 6262)
for the attention of European Structured Finance,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by
any party to the others by fifteen days prior written notice in
accordance with the provisions of this Clause 22 (Notices).
23. Third Party Rights
A person who is not a party to this Current Issuer Deed of Charge may
not enforce any of its terms under the Contracts (Rights of Third
Parties) Xxx 0000, but this shall not affect any right or remedy of a
third party which exists or is available apart from that Act.
24. Execution in Counterparts; Severability
24.1 Counterparts: This Deed may be executed in any number of counterparts
(manually or by facsimile) and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall
constitute one and the same instrument.
24.2 Severability: Where any provision in or obligation under this Current
Issuer Deed of Charge shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations under this Current Issuer Deed of
Charge, or of such provision or obligation in any other jurisdiction,
shall not be affected or impaired thereby.
25. Governing Law and Jurisdiction; Appropriate Forum
25.1 Governing Law: This Deed is governed by, and shall be construed in
accordance with, English law, save that those parts of this Current
Issuer Deed of Charge concerned with the creation, subsistence or
enforcement of the Jersey Security Interests shall be governed by,
and shall be construed in accordance with Jersey law.
25.2 Jurisdiction: Each of the parties hereto irrevocably agrees that the
courts of England shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes, which may
arise out of or in connection with this Current Issuer Deed of Charge
and, for such purposes, irrevocably submits to the jurisdiction of
such
37
courts.
25.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of
England being nominated as the forum to hear and determine any
Proceedings and to settle any disputes, and agrees not to claim that
any such court is not a convenient or appropriate forum.
IN WITNESS of which this Current Issuer Deed of Charge has been executed by
the parties hereto as a deed which has been delivered on the date first
appearing on page one.
38
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [o] by Granite Mortgages 04-1 plc
(registered number 4959572) a private limited liability company incorporated
under the laws of England and Wales whose registered office is at Xxxxx Xxxxx,
000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX (the "Principal").
WHEREAS
(1) By virtue of a Deed (as amended, varied, supplemented or novated from
time to time the "Current Issuer Deed of Charge") dated [o] between
Granite Mortgages 04-1 plc, The Bank of New York as Note Trustee and
others, provision was made for the execution by the Principal of this
Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where
expressed to the contrary) have the same meanings respectively as the
words and phrases in the Current Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably (within the meaning of Section 4 of
the Powers of Attorney Act 1971) and by way of security for the
payment and performance of the Current Issuer Secured Obligations and
the covenants, conditions, obligations and undertakings on the part
of the Principal contained in the Current Issuer Deed of Charge and
the other Current Issuer Transaction Documents to which the Principal
is a party from time to time appoints The Bank of New York and any
other person or persons for the time being the Note Trustee or Note
Trustees of and under the Current Issuer Deed of Charge (the
"Attorney") and each and every person to whom the Note Trustee shall
from time to time have delegated the exercise of the power of
attorney conferred by this Power of Attorney (each a "Delegate") and
any receiver including any administrative receiver and any manager
(the "Receiver") and/or administrator (the "Administrator") appointed
from time to time by the Attorney or on its behalf its true and
lawful attorney for and in the Principal's name or otherwise jointly
and severally to sign, seal, execute, deliver, perfect and do any
assurance, act, matter or thing which the Attorney, Delegate,
Receiver or Administrator considers in each case to be necessary for
the protection or preservation of the Attorney's and the Current
Issuer Secured Creditors' interests and rights (as described in the
Current Issuer Deed of Charge) in and to the Current Issuer Charged
Property or which ought to be done by the Principal under the
covenants, undertakings and provisions contained in the Current
Issuer Deed of Charge and the other Current Issuer Transaction
Documents to which the Principal is a party from time to time and
generally to in its name and on its behalf to exercise all or any of
the powers, authorities or discretions conferred by or pursuant to
the Current Issuer Deed of Charge on the Note Trustee and/or any
Receiver whether on or at any time after the security has become
enforceable in accordance with Clause 7.2 (Enforceable) of the
Current Issuer Deed of Charge or in any other circumstances where the
Attorney has become entitled to take any of the
39
steps referred to in the Current Issuer Deed of Charge including
(without limitation) any or all of the following:
(a) to do every act or thing which the Attorney, Delegate, Receiver
or Administrator may deem to be necessary, proper or expedient
for getting in any of the Current Issuer Charged Property
and/or fully and effectively vesting, transferring or assigning
the Current Issuer Charged Property or any part thereof and/or
the Principal's estate, right, title, benefit and/or interest
therein or thereto in or to the Attorney and its successors in
title or other person or persons entitled to the benefit
thereof or for carrying into effect any other dealing with the
Current Issuer Charged Property whatsoever permitted under the
Current Issuer Deed of Charge in the same manner and as fully
and effectively as the Principal could have done;
(b) the power by writing under its hand by an officer of the
Attorney (including every Receiver appointed under the Current
Issuer Deed of Charge) from time to time to appoint a
substitute attorney (each a "Substitute") who shall have power
to act on behalf of the Principal as if that Substitute shall
have been originally appointed Attorney by this Power of
Attorney and/or to revoke any such appointment at any time
without assigning any reason therefor.
2. In favour of the Attorney, any Delegate, any Receiver and/or
Administrator and/or Substitute, or a person dealing with any of them
and the successors and assigns of such a person, all acts properly
done and documents executed or signed by the Attorney, a Delegate, a
Receiver, an Administrator or a Substitute in the purported exercise
of any power conferred by this Power of Attorney shall for all
purposes be valid and binding on the Principal and its successors and
assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Delegate, Receiver and/or Administrator and/or
Substitute appointed from time to time by the Attorney and their
respective estates (each an "Indemnified Party") against all actions,
proceedings, claims, costs, expenses and liabilities of every
description arising from the exercise, or the purported exercise, of
any of the powers conferred by this Power of Attorney, save where the
same arises as the result of the fraud, negligence or wilful default
of the relevant Indemnified Party or its officers or employees.
4. The provisions of Clause 3 (Current Issuer Security) of the Current
Issuer Deed of Charge shall continue in force after the revocation or
termination, howsoever arising, of this Power of Attorney.
5. The laws of England and Wales shall apply to this Power of Attorney
and the interpretation thereof and to all acts of the Attorney and
each Delegate, Receiver and/or Administrator and/or Substitute
carried out or purported to be carried out under the terms hereof
except that in relation to any action taken by the Attorney, each
Delegate, Receiver and/or Administrator/and or Substitute in respect
of the Jersey Security Interests or the Current Issuer Jersey Secured
Property, the laws of Jersey shall apply.
6. The Principal hereby agrees at all times hereafter to ratify and
confirm whatsoever the said Attorney or its attorney or attorneys or
any Delegate, Receiver or Administrator
40
or Substitute shall properly and lawfully do or cause to be done in
and concerning the Current Issuer Charged Property.
IN WITNESS whereof this Power of Attorney has been executed as a deed by the
Principal the day and year first before written.
EXECUTED AS A DEED by )
GRANITE MORTGAGES 04-1 PLC )
acting by: )
Director
Name:
Title:
Director/Secretary
Name:
Title:
41
SCHEDULE 2
CURRENT ISSUER POST-ENFORCEMENT PRIORITY OF PAYMENTS
Following enforcement of the Current Issuer Security, on each Payment Date the
Note Trustee (or the Current Issuer Cash Manager on its behalf) will apply
amounts received or recovered as follows:
(A) first, to pay amounts due to the Note Trustee (and any
Receiver appointed by the Note Trustee) together with
interest and (if necessary) VAT on those amounts and to
provide for any amounts then due or to become due and
payable to the Note Trustee and the Receiver under the
provisions of the Current Issuer Trust Deed, the Current
Issuer Deed of Charge and any other Transaction Document;
(B) second, to pay, in no order of priority among them but in
proportion to the respective amounts due, the Agent Bank,
the Paying Agents, the Transfer Agent and the Registrar,
together with interest and (if necessary) VAT on those
amounts and to provide for any costs, charges, liabilities
and expenses then due or to become due and payable to them
under the provisions of the Current Issuer Paying Agent and
Agent Bank Agreement;
(C) third, in no order of priority among them but in proportion
to the respective amounts due, towards payment of amounts
(together with (if necessary) VAT on those amounts) due and
payable to the Current Issuer Cash Manager under the Current
Issuer Cash Management Agreement and to the Corporate
Services Provider under the Current Issuer Corporate
Services Agreement and to the Account Bank under the Current
Issuer Bank Account Agreement;
(D) fourth, in no order of priority among them but in proportion
to the respective amounts due, to pay:
(i) amounts (including such part of any termination
payment) due to the Basis Rate Swap Provider (except
for any termination payment or any part thereof due
and payable to the Basis Rate Swap Provider as a
result of a Basis Rate Swap Provider Default by that
Basis Rate Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Basis Rate Swap and applied in accordance with
this order of priority of payments);
(ii) amounts (including such part of any termination
payment) due to the Series 1 Class A1 Dollar Currency
Swap Provider under the Series 1 Class A1 Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap
Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the
extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a
42
Downgrade Termination Event in respect of the Series 1
Class A1 Dollar Currency Swap and applied in
accordance with this order of priority of payments)
and from amounts received from the Series 1 Class A1
Dollar Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 1 Class
A1 Notes until the Series 1 Class A1 Notes have been
repaid in full;
(iii) amounts (including such part of any termination
payment) due to the Series 1 Class A2 Dollar Currency
Swap Provider under the Series 1 Class A2 Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap
Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the
extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in
respect of the Series 1 Class A2 Dollar Currency Swap
and applied in accordance with this order of priority
of payments) and from amounts received from the
Series 1 Class A2 Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on
the Series 1 Class A2 Notes until the Series 1 Class
A2 Notes have been repaid in full; and
(iv) amounts (including such part of any termination
payment) due to the Series 1 Class A3 Dollar Currency
Swap Provider under the Series 1 Class A3 Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap
Provider as a result of a Dollar Currency Swap
Provider Default by that Swap Provider save to the
extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in
respect of the Series 1 Class A3 Dollar Currency Swap
and applied in accordance with this order of priority
of payments) and from amounts received from the
Series 1 Class A3 Dollar Currency Swap Provider to
pay interest due or overdue and to repay principal on
the Series 1 Class A3 Notes until the Series 1 Class
A3 Notes have been repaid in full;
(v) amounts (including such part of any termination
payment) due to the Series 2 Class A Euro Currency
Swap Provider under the Series 2 Class A Euro
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap
Provider as a result of a Euro Currency Swap Provider
Default by that Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 2 Class A Euro Currency Swap and applied
in accordance with this order of priority of
payments) and from amounts received from the Series 2
Class A Euro Currency Swap Provider to pay interest
due or overdue and to repay principal on the Series 2
Class A Notes until the Series 2 Class A Notes have
been repaid in full; and
(vi) interest due or overdue and to repay principal of the
Series 3 Class A Notes until the Series 3 Class A
Notes have been repaid in full;
43
(E) fifth, in no order of priority among them but in proportion
to the respective amounts due, to pay:
(i) amounts (including such part of any termination payment)
due to the Series 1 Class B Dollar Currency Swap Provider
under the Series 1 Class B Dollar Currency Swap (except
for any termination payment due or any part thereof and
payable to that Swap Provider as a result of a Dollar
Currency Swap Provider Default by that Swap Provider save
to the extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in respect
of the Series 1 Class B Dollar Currency Swap and applied
in accordance with this order of priority of payments) and
from amounts received from the Series 1 Class B Dollar
Currency Swap Provider to pay interest due or overdue and
to repay principal on the Series 1 Class B Notes until the
Series 1 Class B Notes have been repaid in full;
(ii) amounts (including such part of any termination payment)
due to the Series 2 Class B Euro Currency Swap Provider
under the Series 2 Class B Euro Currency Swap (except for
any termination payment or any part thereof due and
payable to that Swap Provider as a result of a Euro
Currency Swap Provider Default by that Swap Provider save
to the extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in respect
of the Series 2 Class B Euro Currency Swap and applied in
accordance with this order of priority of payments) and
from amounts received from the Series 2 Class B Euro
Currency Swap Provider to pay interest due or overdue and
to repay principal on the Series 2 Class B Notes until the
Series 2 Class B Notes have been repaid in full; and
(iii) interest due or overdue and to repay principal of the
Series 3 Class B Notes until the Series 3 Class B Notes
have been repaid in full;
(F) sixth, in no order of priority among them but in proportion to
the respective amounts due, to pay:
(i) amounts (including such part of any termination payment)
due to the Series 1 Class M Dollar Currency Swap Provider
under the Series 1 Class M Dollar Currency Swap (except
for any termination payment or any part thereof due and
payable to that Swap Provider as a result of a Dollar
Currency Swap Provider Default by that Swap Provider, save
to the extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in respect
of the Series 1 Class M Dollar Currency Swap and applied
in accordance with this order of priority of payment) and
from amounts received from the Series 1 Class M Dollar
Currency Swap Provider to pay interest due or overdue and
to repay principal on the Series 1 Class M Notes until the
Series 1 Class M Notes have been repaid in full;
44
(ii) amounts (including such part of any termination payment)
due to the Series 2 Class M Euro Currency Swap Provider
under the Series 2 Class M Euro Currency Swap (except for
any termination payment or any part thereof due and
payable to that Swap Provider as a result of a Euro
Currency Swap Provider default by that Swap Provider, save
to the extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in respect
of the Series 2 Class M Euro Currency Swap and applied in
accordance with this order of priority of payments) and
from amounts received from the Series 2 Class M Euro
Currency Swap Provider to pay interest due or overdue and
to repay principal of the Series 2 Class M Notes until the
Series 2 Class M Notes have been repaid in full; and
(iii) interest due or overdue and to repay principal of the
Series 3 Class M Notes until the Series 3 Class M Notes
have been repaid in full;
(G) seventh, in no order of priority among them but in
proportion to the respective amounts due, to pay:
(i) amounts (including such part of any termination payment)
due to the Series 1 Class C Dollar Currency Swap Provider
under the Series 1 Class C Dollar Currency Swap (except
for any termination payment or any part thereof due and
payable to that Swap Provider as a result of a Dollar
Currency Swap Provider Default by that Swap Provider save
to the extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in respect
of the Series 1 Class C Dollar Currency Swap and applied
in accordance with this order of priority of payments) and
from amounts received from the Series 1 Class C Dollar
Currency Swap Provider to pay interest due or overdue and
to repay principal on the Series 1 Class C Notes until the
Series 1 Class C Notes have been repaid in full;
(ii) amounts (including such part of any termination payment)
due to the Series 2 Class C Euro Currency Swap Provider
under the Series 2 Class C Euro Currency Swap (except for
any termination payment or any part thereof due and
payable to that Swap Provider as a result of a Euro
Currency Swap Provider Default by that Swap Provider save
to the extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in respect
of the Series 2 Class C Euro Currency Swap and applied in
accordance with this order of priority of payments) and
from amounts received from the Series 2 Class C Euro
Currency Swap Provider to pay interest due or overdue and
to repay principal on the Series 2 Class C Notes until the
Series 2 Class C Notes have been repaid in full; and
(iii) to pay interest due or overdue and to repay principal on
the Series 3 Class C Notes until the Series 3 Class C
Notes have been repaid in full;
45
(H) eighth, in no order of priority among them but in proportion
to the respective amounts due, to pay any termination
payment to:
(i) the Basis Rate Swap Provider following a Basis Rate
Swap Provider Default by the Basis Rate Swap
Provider;
(ii) the Dollar Currency Swap Provider following a Dollar
Currency Swap Provider Default by the Dollar Currency Swap
Provider;
(iii) the Euro Currency Swap Provider following a Euro Currency
Swap Provider Default by the Euro Currency Swap Provider;
and
(I) last, to pay any amount remaining following the application of
principal and revenue set forth in paragraphs (A) through (H)
above, to the Current Issuer.
Following enforcement of the Current Issuer Security, if, on any
Payment Date, an amount equal to the cash benefit relating to any Tax
Credit obtained by the Current Issuer is required to be paid to any
Current Issuer Swap Provider (in accordance with Part 5(o) of the
Schedule to the relevant Current Issuer Swap Agreement), then the
Note Trustee shall make such payment on such Payment Date out of
amounts received or recovered in priority to the payments and
provisions to be made on such Payment Date in accordance with the
Current Issuer Post-Enforcement Priority of Payments. The amount of
any such cash benefit paid to the relevant Current Issuer Swap
Provider in accordance with this paragraph shall, to avoid double
counting, be deducted from the amount to be paid to that Current
Issuer Swap Provider under the relevant Current Issuer Swap Agreement
in accordance with the Current Issuer Post-Enforcement Priority of
Payments on the relevant Payment Date.
46
SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT
To: [Addressee(s)]
Granite Mortgages 04-1 plc - Assignment of rights under Current Issuer
Transaction Documents
[o]
Dear Sirs,
Terms and expressions used in this letter are as defined in a deed of charge
(the "Current Issuer Deed of Charge") between Granite Mortgages 04-1 plc (the
"Current Issuer"), The Bank of New York (the "Note Trustee") and others dated
[o].
We hereby give notice to each addressee of this letter that by assignment(s)
under or pursuant to the Current Issuer Deed of Charge, the Current Issuer has
assigned absolutely, by way of security for the payment and performance of
certain obligations of the Current Issuer described in the Current Issuer Deed
of Charge (the "Current Issuer Secured Obligations"), to the Note Trustee all
its right, title, benefit and interest under the [Agreement(s)] (the "Current
Issuer Transaction Documents") [including its right, title interest and
benefit in relation to [describe property] and including, without limitation,
all rights to receive payment of any amounts which may become payable to the
Current Issuer thereunder, all payments received by the Current Issuer
thereunder, all rights to serve notices and/or make demands thereunder and/or
to take such steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach thereof and all
rights to receive damages or obtain relief in respect thereof and the proceeds
of any of the foregoing, (hereinafter called "Relevant Current Issuer
Property").
In relation to any of the Relevant Current Issuer Property which may be
situated in Jersey at any time, we hereby give notice for the purpose of the
Security Interests (Jersey) Law 1983 to each addressee of this letter that
with the intention of creating a security interest in accordance with such law
in such property in favour of the Note Trustee for the payment and performance
of the Current Issuer Secured Obligations, the Current Issuer has assigned all
of its rights, title, benefit and interest, present and future, in, to and
under the Relevant Current Issuer Property to the Note Trustee.
By signing the enclosed copy of this notice you acknowledge and consent to the
assignments and agree that:
(a) from the date of this notice you are obliged to and you will
pay all moneys which are or may become payable to the Current
Issuer under the aforesaid agreements to or to the order of the
Note Trustee; and
(b) you have not, at the date of this notice, received notice that
any third party has or will have any right of interest
whatsoever in the Relevant Current Issuer Property.
47
Notwithstanding the assignments made by the Current Issuer and referred to in
this notice, the Note Trustee hereby confirms and you further acknowledge
that:
(a) you may continue to make all payments becoming due to the
Current Issuer in respect of the Relevant Current Issuer
Property in the manner envisaged by the relevant Current Issuer
Transaction Document(s); and
(b) the Current Issuer shall be entitled to exercise its rights,
powers and discretions and perform its obligations in relation
to the Relevant Current Issuer Property and under the Current
Issuer Transaction Documents in accordance with the provisions
of the Current Issuer Transaction Documents,
but only until such time as you receive notice from the Note Trustee to the
contrary or to the effect that the security created under the Current Issuer
Deed of Charge has become enforceable, in which event from receipt of such
notice you agree that you will pay all monies becoming due and payable to the
Current Issuer in respect of the Relevant Current Issuer Property in
accordance with any instructions received from the Note Trustee.
This letter is governed by, and shall be construed in accordance with, English
law, except that to the extent of any Relevant Current Issuer Property which
may be situated in Jersey at any time, it is governed by and shall be
construed in accordance with the laws of Jersey.
Please acknowledge receipt of this notice by executing and returning the copy
of this letter attached hereto.
Yours faithfully,
EXECUTED for and on behalf of )
GRANITE MORTGAGES 04-1 PLC )
by: )
Authorised Signatory
Name:
Title:
48
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by: )
Authorised Signatory
Name:
Title:
We acknowledge receipt of the above notice and the terms of the assignment
created by you in respect of the Relevant Current Issuer Property.
In respect of the [Agreement]:
For and on behalf of )
[Party to Current Issuer Transaction Document] )
by: )
Authorised Signatory
Name:
Title:
49
EXECUTION PAGE
The Current Issuer
Executed by
GRANITE MORTGAGES 04-1 PLC
as its deed as follows: By:
Signed for and on its behalf by one of its ------------------------------------------------
directors and by another of its directors/its for and on behalf of LDC
secretary Securitisation Director No. 1 Limited
- Director
Name: Xxxxx Xxxxxxxxx
------------------------------------------------
By:
------------------------------------------------
for and on behalf of LDC
Securitisation Director No. 2 Limited
- Director
Name: Xxx Xxxxxx
------------------------------------------------
The Note Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By:
Signed for and on its behalf by one of its duly ------------------------------------------------
authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name:
-------------------------------------------------
The Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent, and the Account
Bank
Executed by
CITIBANK, N.A.
as follows: By:
Signed for and on its behalf by one of its duly -------------------------------------------------
authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name:
------------------------------------------------
50
The US Paying Agent
Executed by
CITIBANK, N.A.
as follows: By:
Signed for and on its behalf by one of its duly -------------------------------------------------
authorised attorneys/signatories Duty Authorised Attorney/Signatory
Name:
-----------------------------------------------
The Current Issuer Cash Manager and the Basis Rate Swap Provider
Executed by
NORTHERN ROCK PLC
as its deed as follows: By:
Signed for and on its behalf by one of its duly ------------------------------------------------
authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name:
-------------------------------------------------
Signature:
----------------------------------
Witness
Full Name:___________________________________
Occupation:__________________________________
Address: Solicitor
-----------------------------------
c/o Sidley Xxxxxx Xxxxx & Xxxx
-----------------------------------
0 Xxxxxxxxxxxx Xxxxxx
-----------------------------------
Xxxxxx XX0X 0XX
-----------------------------------
The Corporate Service Provider
Executed by
LAW DEBENTURE CORPORATE
SERVICES LIMITED
as its deed as follows: By:
Signed for and on its behalf by one of its -------------------------------------------------
directors and by another of its directors/its Director
secretary
Name:
-----------------------------------------------
By:
-----------------------------------------------
Director/Secretary
Name:
------------------------------------------------
51
The Dollar Currency Swap Provider
Executed by
[o] By:
as its deed as follows: --------------------------------------
Signed for and on its behalf by two of its duly Duly Authorised Signatory
authorised signatories
Name:
-------------------------------------
The Euro Currency Swap Provider
Executed by
[o] By:
as its deed as follows: --------------------------------------
Signed for and on its behalf by two of its Duly Authorised Signatory
duly authorised signatories
Name:
-------------------------------------
By:
-------------------------------------
Duly Authorised Signatory
Name:
-------------------------------------
52
