Exhibit 4.4
Dated [o] January 2005
GRANITE MASTER ISSUER PLC
THE BANK OF NEW YORK
as Note Trustee and Issuer Security Trustee
- and -
OTHERS
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ISSUER DEED OF CHARGE
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SIDLEY ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇
WOOLGATE EXCHANGE
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▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
TELEPHONE ▇▇▇ ▇▇▇▇ ▇▇▇▇
FACSIMILE 020 7626 7937
CONTENTS
1. Interpretation.......................................................2
2. Covenant to Pay and to Perform.......................................3
3. Issuer Security......................................................3
4. Release of Issuer Charged Property...................................6
5. Declaration of Trust.................................................7
6. Restrictions on Exercise of Certain Rights...........................7
7. Enforcement.........................................................11
8. Upon Enforcement....................................................13
9. Receiver............................................................16
10. Further Assurance and Power of Attorney.............................21
11. Crystallisation.....................................................22
12. Provisions relating to the Security.................................23
13. Protection of Third Parties.........................................25
14. Set-Off.............................................................25
15. Representations and Covenants.......................................26
16. Supplement to Trustee Acts..........................................30
17. Appointment, Removal and Retirement:................................39
18. Remuneration and Indemnification of Issuer Security Trustee:........41
19. Modification and Waiver.............................................43
20. Miscellaneous Provisions............................................44
21. Rights cumulative...................................................45
22. Assignment..........................................................45
23. Non Petition Covenant; Corporate Obligations........................45
24. Notices.............................................................46
25. Third Party Rights..................................................47
26. Execution in Counterparts; Severability.............................47
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27. Governing Law and Jurisdiction; Appropriate Forum...................47
SCHEDULE 1 FORM OF SECURITY POWER OF ATTORNEY...............................51
SCHEDULE 2 ISSUER PRIORITY OF PAYMENTS......................................54
SCHEDULE 3 FORM OF NOTICE OF ASSIGNMENT.....................................62
SCHEDULE 4 ISSUER RESERVE FUND..............................................65
SCHEDULE 5 FORM OF ACCESSION UNDERTAKING....................................67
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THIS DEED OF CHARGE is made on [o] January 2005
BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668) a public limited
company incorporated under the laws of England and Wales whose registered
office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as Master
Issuer;
(2) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, in its capacity as (1) Issuer Security Trustee and (2) Note
Trustee;
(3) CITIBANK, N.A., acting through its office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, in its capacity as (1) Principal Paying Agent, (2) Agent Bank,
(3) Registrar, (4) Transfer Agent and (5) an Issuer Account Bank;
(4) CITIBANK, N.A., acting through its office at 14th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇.▇.▇., in its capacity as US Paying Agent;
(5) NORTHERN ROCK PLC (registered number 03273685) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇, in its
capacity as (1) Issuer Cash Manager, (2) Issuer GIC Provider, (3) an
Issuer Account Bank and (4) Start-Up Loan Provider; and
(6) LAW DEBENTURE CORPORATE SERVICES LIMITED (registered number 3388362) a
private limited company incorporated under the laws of England and Wales
whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ as the Corporate Services Provider.
WHEREAS:
(A) This Deed secures and will secure, inter alia, the Issuer Secured
Obligations.
(B) The Master Issuer may, from time to time, issue Series of Issuer Notes
pursuant to the Issuer Trust Deed.
(C) The Paying Agents, the Agent Bank, the Registrar and the Transfer Agent
have agreed to provide certain agency services on behalf of the Master
Issuer for the benefit of the Noteholders on the terms set out in the
Issuer Paying Agent and Agent Bank Agreement.
(D) The Issuer Cash Manager has agreed to act as cash manager and to provide
certain administration and cash management services to the Master Issuer
on the terms set out in the Issuer Cash Management Agreement.
(E) The Issuer Account Banks have agreed to provide certain bank account
services to the Master Issuer on the terms set out in the Issuer Bank
Account Agreement.
(F) The Issuer GIC Provider has agreed to provide certain guaranteed
investment services to the Master Issuer on the terms set out in the
Issuer Guaranteed Investment Contract.
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(G) The Start-Up Loan Provider has agreed to make available Start-Up Loan
Tranches to the Master Issuer on the terms set out in the Start-Up Loan
Agreement.
(H) The Corporate Services Provider has agreed to act as corporate services
provider to, inter alios, the Master Issuer on the terms set out in the
Issuer Corporate Services Agreement.
(I) This Deed is supplemental to the Issuer Trust Deed of even date herewith
and made between the Master Issuer and the Note Trustee relating to the
issuance of the Issuer Notes.
(J) New Issuer Secured Creditors, including, but not restricted to, any
Issuer Swap Provider may accede to this Deed from time to time on the
terms set out herein.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. Interpretation
1.1 Definitions: The provisions of:
(a) the Programme Master Definitions Schedule signed for the purposes of
identification by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇ LLP
on [o] January 2005, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇ LLP
on [o] January 2005,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Deed.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Programme Master Definitions
Schedule.
1.2 Construction: In this Deed, except where the context otherwise requires:
(a) the terms of the Issuer Trust Deed and of any agreement in existence
at the date hereof between the parties hereto are incorporated in
this Deed but (unless otherwise expressly provided for herein) only
to the extent required to ensure that any proposed disposition of
the Issuer Charged Property contained in this Deed is a valid
disposition in accordance with Section 2(1) of the Law of Property
(Miscellaneous Provisions) ▇▇▇ ▇▇▇▇;
(b) a reference in this Deed to any property, assets, undertakings or
rights includes, unless the context otherwise requires, present and
future property, assets, undertakings or rights; and
(c) "this Issuer Deed of Charge", "this Deed of Charge" or "this Deed"
means this Deed and all the Schedules hereto (as from time to time
modified and/or supplemented in accordance with the provisions set
out herein) and all Deeds of Accession entered into under or
pursuant to this Deed and each other
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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 Issuer Transaction Documents (including,
in the case of the Issuer Notes, to Clause 2 (Covenant to Repay etc.) of
the Issuer Trust Deed), the Master Issuer covenants with and undertakes
to the Issuer Security Trustee for itself and as trustee for the 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 Master Issuer
to the Issuer Security Trustee (whether for its own account or as
trustee for the Issuer Secured Creditors) or to any of the other
Issuer Secured Creditors, whether actually or contingently, under
the Issuer Transaction Documents (including without limitation the
Issuer Notes); and
(b) observe, perform and satisfy all its other obligations and
liabilities under the Issuer Transaction Documents (including
without limitation the Issuer Notes),
3. Issuer Security
3.1 Funding 2 Charged Property:
The Master Issuer, by way of first fixed security for the payment or
discharge of the Issuer Secured Obligations, subject to Clause 4 (Release
of Issuer Charged Property), hereby assigns to the Issuer Security
Trustee, all of its right, title, benefit and interest and all claims,
present and future, in and to, the security and all property, assets and
rights and claims held on trust by the Funding 2 Security Trustee for the
payment or discharge of the relevant Funding 2 Secured Obligations
pursuant to the Funding 2 Deed of Charge including all rights to receive
payment of any amount which may become payable to the Master Issuer
thereunder and all rights to serve notices and/or make demands thereunder
and/or to take such steps as are required to cause payments to become due
and payable thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain relief in respect
thereof and the proceeds of any of the foregoing, TO HOLD the same unto
the Issuer Security Trustee absolutely.
3.2 Contractual rights:
(a) The Master Issuer, by way of first fixed security for the payment or
discharge of the Issuer Secured Obligations, subject to Clause 4
(Release of Issuer Charged Property), hereby assigns to the Issuer
Security Trustee, all of its right, title, benefit and interest,
present and future, in, to and under the Issuer Transaction
Documents (other than this Deed and provided that the assignment of
the right, title, benefit and interest of the Master Issuer under
each Issuer Swap Agreement shall be subject to the rights of set-off
and netting provided therein):
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including, without limitation, all rights to receive payment of any
amounts which may become payable to the Master Issuer thereunder and
all payments received by the Master Issuer thereunder, all rights to
serve notices and/or make demands thereunder and/or to take such
steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach thereof
and all rights to receive damages or obtain relief in respect
thereof and the proceeds of any of the foregoing, TO HOLD the same
unto the Issuer Security Trustee absolutely.
3.3 Accounts: The Master Issuer, by way of first fixed security for the
payment or discharge of the Issuer Secured Obligations, subject to Clause
4 (Release of Issuer Charged Property), hereby charges in favour of the
Issuer Security Trustee all of its rights, title, benefit and interest,
present and future, in and to:
(a) each Issuer Bank Account;
(b) any Issuer Swap Collateral Account; and
(c) each other account (if any) in which the Master Issuer may at any
time have or acquire any right, title, benefit or interest,
and all monies or securities now or at any time hereafter standing to the
credit thereof and the debts represented by them together with all rights
and claims relating or attached thereto including, without limitation,
the right to interest or other income or distributions and the proceeds
of any of the foregoing, TO HOLD the same unto the Issuer Security
Trustee absolutely.
3.4 Authorised Investments and Swap Collateral: The Master Issuer, by way of
first fixed security for the payment or discharge of the Issuer Secured
Obligations, subject to Clause 4 (Release of Issuer Charged Property),
hereby charges in favour of the Issuer Security Trustee all of its right,
title, benefit and interest, present and future in, to and under:
(a) any Authorised Investment purchased using monies standing to the
credit of any Issuer Bank Account; and
(b) any Swap Collateral in the form of securities,
for the time being owned by it and all rights in respect of or ancillary
to such Authorised Investments and such Swap Collateral, including the
right to income and distributions and the proceeds of any of the
foregoing, TO HOLD the same unto the Issuer Security Trustee absolutely.
3.5 Floating Charge: The Master Issuer, by way of first floating security for
the payment or discharge of the Issuer Secured Obligations, subject to
Clause 4 (Release of Issuer Charged Property), hereby charges in favour
of the Issuer Security Trustee the whole of its undertaking and all its
property, assets and rights, whatsoever and wheresoever, both present and
future, including without limitation its uncalled capital, other than any
property or assets for the time being the subject of a fixed charge or
effectively assigned pursuant to any of the foregoing provisions of this
Clause 3 (Issuer Security) and/or any Deed of Accession.
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3.6 Title Guarantee: Each of the dispositions of, assignments of and charges
over property effected in or pursuant to this Deed is made with full
title guarantee.
3.7 Further Acquired Items: For the avoidance of doubt, it is hereby
confirmed that the Security Interests created under or pursuant to
Clauses 3.1 (Funding 2 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.
3.8 No Transfer of Obligations: Notwithstanding anything else in this Deed,
it is hereby agreed that dispositions of property effected in or pursuant
to this Clause 3 (Issuer Security) do not transfer obligations, and
nothing herein shall be construed as a transfer of obligations to, the
Issuer Security Trustee.
3.9 Notice and Acknowledgement:
(a) The execution of this Deed and/or any Deed of Accession by any
Issuer Secured Creditor shall constitute express notice to such
Issuer Secured Creditor of the assignments, charges and Security
Interests made by the Master Issuer pursuant to this Deed.
(b) By its execution of this Deed and/or any Deed of Accession each
Issuer Secured Creditor acknowledges and consents to the Issuer
Security and also acknowledges that as at the date hereof it has not
received from any other person notice of any assignment or charge of
the Issuer Charged Property.
(c) Notwithstanding the Issuer Security and subject as provided
otherwise in this Deed, each of the parties hereto acknowledges
that:
(i) each Issuer Secured Creditor and each other party to any Issuer
Transaction Document may continue to make all payments becoming
due to the Master Issuer under any Issuer Transaction Document
in the manner envisaged by such Issuer Transaction Document
until the receipt of written notice from the Issuer Security
Trustee or any Receiver requiring payments to be made
otherwise; and
(ii) [until the Issuer Security becomes enforceable in accordance
with Clause 7.2 (Enforceable), the Master Issuer shall be
entitled to exercise its rights, powers and discretions and
perform its obligations in relation to the Issuer Charged
Property and under the Issuer Transaction Documents in
accordance with the provisions of the Issuer Transaction
Documents.]
3.10 Issuer Security Trustee's Discretion in relation to Issuer Charged
Property:
Without prejudice to any other rights of the Issuer Security Trustee
after the Issuer Security has become enforceable and subject to the terms
of the Issuer Transaction Documents, the Issuer Security Trustee may from
time to time at any time after any part or parts of the Issuer Security
becomes enforceable:
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(a) enter into, make, execute, sign, deliver and do all such contracts,
agreements, deeds, receipts, payments, assignments, transfers,
conveyances, assurances and things and bring, prosecute, enforce,
defend and abandon all such actions, suits and proceedings in
relation to the Issuer Charged Property as it may think expedient;
(b) exercise or refrain from exercising, in such manner as in its
absolute discretion the Issuer Security Trustee shall think fit, all
or any of the rights, powers, authorities, discretions or remedies
of the Master Issuer under or in relation to the Issuer Charged
Property or incidental to the ownership thereof and, in particular
but without limiting the generality of the foregoing, exercise all
rights to vote or to give any consent or notification or make any
declaration in relation to such Issuer Charged Property. For the
avoidance of doubt, the Issuer Security Trustee shall not be
required to have regard to the interests of the Master Issuer in the
exercise or non-exercise of any such rights, powers, authorities,
discretions and remedies or to comply with any direction given by
the Master Issuer in relation thereto; and
(c) demand, ▇▇▇ for and take any advice or institute any proceedings to
recover or obtain payment of any amounts which may then be due and
payable to the Master Issuer but which remains unpaid under or in
respect of the Issuer Charged Property or any part thereof either in
its own name or in the name of the Master Issuer.
3.11 Accession of New Secured Creditors: As a condition precedent to any
Series of Issuer Notes issued under the Programme, any New Issuer Secured
Creditor shall accede to the terms of this Deed by executing an Accession
Undertaking in the form or substantially in the form set out in Schedule
5 (Form of Accession Undertaking) to this Deed.
4. Release of 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 Issuer Secured Obligations and upon the Issuer
Security Trustee being satisfied that the Master Issuer is under no
further actual or contingent obligation under this Deed or any other
Issuer Transaction Document, the Issuer Security Trustee shall, at the
request and cost of the Master Issuer, release, reassign and/or discharge
from the Issuer Security all of the Issuer Charged Property to, or to the
order of, the Master Issuer; provided that where any such release,
re-assignment or discharge is made in whole or in part on the faith of
any payment, security or other disposition which is avoided or which must
be repaid on bankruptcy, liquidation or otherwise, the security
constituted by this Deed and the liability of the Master Issuer hereunder
shall continue as if there had been no such release, re-assignment or
discharge.
4.2 Disposal of Authorised Investments and Swap Collateral: On the making at
any time by the Issuer Cash Manager on behalf of the Master Issuer of a
disposal of any Authorised Investment or Swap Collateral in the form of
securities charged pursuant to Clause 3.4 (Authorised Investments and
Swap Collateral), the Issuer Security Trustee shall, if so requested by
and at the sole cost and expense of the Master Issuer, but without the
Issuer Security Trustee being responsible for any loss, costs, claims or
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liabilities whatsoever occasioned by so acting upon such request,
release, reassign or discharge from the Issuer Security the relevant
Authorised Investments or Swap Collateral, provided that in the case of a
disposal of an Authorised Investment, the proceeds of such disposal are
paid by the Master Issuer into the Issuer Bank Accounts from which the
monies to make such Authorised Investment were originally drawn and, that
in the case of Swap Collateral, the proceeds of such disposal are paid by
the Master Issuer into the relevant Issuer Swap Collateral Cash Account
or Issuer Bank Account (as appropriate in accordance with the Cash
Management Agreement) subject to and in accordance with the provisions of
this Deed and the Issuer Transaction Documents.
4.3 Withdrawals from Issuer Bank Accounts and Issuer Swap Collateral
Accounts: Subject to and in accordance with this Deed and the other
Issuer Transaction Documents, the Issuer Cash Manager, on behalf of the
Master Issuer and the Issuer Security Trustee, is permitted pursuant to
Clause 6 (Restrictions on Exercise of Certain Rights) from time to time
to withdraw amounts from the Issuer Bank Accounts in order to apply such
amounts in accordance with the relevant Issuer Priority of Payments and
from time to time to withdraw amounts or securities from the Issuer Swap
Collateral Accounts in order to apply such amounts or securities in
accordance with the Issuer Cash Management Agreement. Any amount or
securities so withdrawn shall be released from the Issuer Security
provided that any amount withdrawn from the Issuer Bank Accounts is
applied in accordance with and subject to the relevant Issuer Priority of
Payments.
5. Declaration of Trust
Each of the Issuer Secured Creditors declares the Issuer Security Trustee
as trustee of, and the Issuer Security Trustee hereby declares that it
holds on trust for the Issuer Secured Creditors, upon and subject to the
terms and conditions of this Deed, all of the covenants, undertakings and
representations made to the Issuer Security Trustee under this Deed and
any other Issuer Transaction Document and all of the charges,
assignments, security and Security Interests made or given to the Issuer
Security Trustee or to be made or given to it for the purpose of securing
the Issuer Secured Obligations under or pursuant to this Deed or any
other Issuer Transaction Document.
6. Restrictions on Exercise of Certain Rights
6.1 Payments to Issuer Bank Accounts and Issuer Swap Collateral Accounts: At
all times prior to the release, re-assignment and/or discharge of the
Issuer Security pursuant to Clause 4 (Release of the Issuer Charged
Property), the Master Issuer shall save as otherwise provided in the
Issuer Transaction Documents or unless the Issuer Security Trustee
otherwise agrees in writing (and then only on such terms and in such
manner as the Issuer Security Trustee may require) procure that:
(a) the Issuer Bank Accounts shall from time to time be credited with
all amounts (excluding Swap Collateral) received by the Master
Issuer under or in respect of the Issuer Transaction Documents,
including without limitation the following payments:
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(i) amounts received by the Master Issuer from or on behalf of
Funding 2 pursuant to the provisions of the Global Intercompany
Loan Agreement;
(ii) interest received on the Issuer Bank Accounts;
(iii) amounts received by the Master Issuer from any Issuer Swap
Provider under any Issuer Swap Agreement (excluding Swap
Collateral);
(iv) income received by the Master Issuer in respect of the proceeds
of any Authorised Investments;
(v) amounts received by the Master Issuer from the Funding 2
Security Trustee or a Receiver following the service of a
Funding 2 Intercompany Loan Enforcement Notice;
(vi) such other payments received by the Master Issuer as are, or
ought in accordance with this Deed to be, comprised in the
Issuer Charged Property;
(b) all Swap Collateral delivered to the Master Issuer (if any) pursuant
to any Issuer Swap Agreement is deposited into an Issuer Swap
Collateral Account; and
(c) the Issuer Reserve Fund is deposited into the Issuer GIC Account.
6.2 No withdrawal from Issuer Bank Accounts and Issuer Swap Collateral
Accounts: At all times during the subsistence of the Issuer Security, the
Master Issuer shall not be entitled to withdraw or transfer from any
Issuer Bank Account or Issuer Swap Collateral Account any monies or
securities standing to the credit thereof or direct any payment to be
made therefrom to any person save to the extent expressly permitted under
the Issuer Transaction Documents without the Issuer Security Trustee's
prior written consent.
6.3 Permitted Withdrawals from Issuer Bank Accounts and Issuer Swap
Collateral Accounts; Authorised Investments:
(a) The Master Issuer covenants with the Issuer Security Trustee that
the amounts standing to the credit of the Issuer Bank Accounts and
any Swap Collateral standing to the credit of an Issuer Swap
Collateral Account may only be withdrawn in accordance with this
Clause 6.3 or otherwise with the Issuer Security Trustee's prior
written consent.
(b) On any day during an Interest Period prior to the Issuer Security
becoming enforceable pursuant to Clause 7.2 (Enforceable), the
Master Issuer and the Issuer Security Trustee hereby authorise the
Issuer Cash Manager to withdraw such monies from the Issuer
Transaction Account as are to be applied on such date to meet any
amounts then due and payable by the Master Issuer to third parties
in accordance with item [(C)] of the Issuer Pre-Enforcement Revenue
Priority of Payments provided that such monies are applied in making
such payments on behalf of the Master Issuer. For the purpose of
this paragraph (b), the remaining provisions of this Clause 6.3,
Clause 6.4 (Issuer Pre-
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Enforcement Revenue Priority of Payments) and Clause 6.5 (Issuer
Pre-Enforcement Principal Priority of Payments), the Issuer Cash
Manager shall be entitled to assume that the Issuer Security is not
enforceable pursuant to Clause 7.2 (Enforceable) unless it has
received notice from the Master Issuer or the Issuer Security
Trustee or is otherwise aware that the Issuer Security has become so
enforceable and shall not be liable to the Issuer Security Trustee,
the Master Issuer or any other Issuer Secured Creditor for making
payments based on this assumption.
(c) The Issuer Security Trustee hereby authorises the Issuer Cash
Manager, prior to the Issuer Security becoming enforceable pursuant
to Clause 7.2 (Enforceable), to make withdrawals from:
(i) the relevant Issuer Bank Account for the purposes of acquiring
Authorised Investments provided that all amounts received in
respect of the Authorised Investments (including earnings
thereon) shall be deposited into the relevant Issuer Bank
Account from which they were originally drawn; and
(ii) the relevant Issuer Swap Collateral Account for the purpose of
(1) returning Swap Collateral to an Issuer Swap Provider
pursuant to the terms of the relevant Issuer Swap Agreement; or
(2) transferring Swap Collateral to the Issuer Transaction
Account pursuant to the terms of the relevant Issuer Swap
Agreement and the Issuer Cash Management Agreement.
(d) On each Payment Date prior to the Issuer Security becoming
enforceable pursuant to clause 7.2 (Enforceable) the Issuer Security
Trustee hereby authorises the Issuer Cash Manager to transfer from
the Issuer GIC Account to the Issuer Transaction Account such
amounts that are to be applied as Issuer Available Revenue Receipts
on such date in accordance with this Deed.
6.4 Issuer Pre-Enforcement Revenue Priority of Payments: On each Payment
Date, prior to the Issuer Security becoming enforceable pursuant to
Clause 7.2 (Enforceable), the Issuer Security Trustee hereby authorises
the Master Issuer or the Issuer Cash Manager in its place to withdraw
Issuer Available Revenue Receipts standing to the credit of the Issuer
Transaction Account and to apply such monies in accordance with the
provisions and the order of priority of the Issuer Pre-Enforcement
Revenue Priority of Payments.
6.5 Issuer Pre-Enforcement Principal Priority of Payments: On each Payment
Date prior to the Issuer Security becoming enforceable pursuant to Clause
7.2 (Enforceable), the Issuer Security Trustee hereby authorises the
Master Issuer or the Issuer Cash Manager in its place to withdraw Issuer
Available Principal Receipts standing to the credit of the Issuer
Transaction Account and to apply such monies in accordance with the order
of priority of the Issuer Pre-Enforcement Principal Priority of Payments.
6.6 Amendment to Issuer Priority of Payments: On the issuance of Issuer Notes
on any Closing Date, the making available of any Loan Tranches by the
Master Issuer to
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Funding 2 or if any new Funding 2 Intercompany Loans are made available
by a new Funding 2 Issuer to Funding 2 in accordance with the terms of
the Transaction Documents or Funding 2 enters into any Bridging
Arrangements, if any amendment to the Issuer Priority of Payments is
required as a result thereof, then, subject to the parties to this Deed
agreeing the necessary amendments to the priority of payments, the
parties to this Deed, together with any person entering into a Deed of
Accession, shall set out the new Issuer Priority of Payments accordingly
in a schedule to that Deed of Accession. The new Issuer Priority of
Payments so amended shall supersede those set out in Schedule 2 (Issuer
Priority of Payments) to this Deed.
6.7 No Enforcement by Issuer Secured Creditors: Each of the Issuer Secured
Creditors (other than the Issuer Security Trustee and the Note Trustee
(acting on behalf of the Noteholders) and any Receiver) hereby agrees
with the Master Issuer and the Issuer Security Trustee that:
(a) only the Issuer Security Trustee may enforce the Issuer Security in
accordance with the provisions hereof;
(b) notwithstanding any other provision of this Deed or any other Issuer
Transaction Document no sum due or owing to any Issuer Secured
Creditor or to the Issuer Security Trustee (whether for itself or on
behalf of the Issuer Secured Creditors) from or by the Master Issuer
under this Deed or any other Issuer Transaction Document shall be
payable by the Master Issuer except to the extent that the Master
Issuer or (following enforcement of the Issuer Security) the Issuer
Security Trustee has sufficient funds available to it (and, in the
case of the Issuer Security Trustee, as a result of the realisation
of that security) to pay such sum subject to and in accordance with
the relevant Issuer Priority of Payments and provided that all
liabilities of the Issuer required to be paid in priority thereto or
pari passu therewith pursuant to such Issuer Priority of Payments
have been paid, discharged and/or otherwise provided for in full
PROVIDED THAT this paragraph (b) shall not apply to and shall not
limit the obligations of the Master Issuer to the Noteholders under
the Issuer Notes and this Deed; and
(c) it shall not take any steps for the purpose of recovering any of the
Issuer Secured Obligations (including, without limitation, by
exercising any rights of set-off) or enforcing any rights arising
out of the Issuer Transaction Documents against the Master Issuer
and it shall not take any steps or legal proceedings for the
winding-up, dissolution or reorganisation of, or the institution of
insolvency proceedings against, the Master Issuer or for the
appointment of a receiver, administrator, administrative receiver,
liquidator or similar officer of the Master Issuer in respect of any
or all of its revenues and assets,
PROVIDED THAT
(i) in the case of any Noteholder, this provision shall be subject
to Clause 7.2 (Only Note Trustee to Enforce) of the Issuer
Trust Deed; and
(ii) in the case of any other Issuer Secured Creditor and subject to
there being no Issuer Note then outstanding, if the Issuer
Security Trustee
10
having become bound to do so subject to and in accordance with
the terms of this Deed and the Issuer Transaction Documents,
fails to take any steps or proceedings to enforce the security
created hereunder within 30 days of becoming so bound and such
failure is continuing, each such other Issuer Secured Creditor
shall be entitled to take such steps and proceedings to enforce
its rights arising out of the relevant Issuer Transaction
Document as it shall deem necessary other than the presentation
of a petition or making an application for the winding up,
dissolution or reorganisation of, or the institution of
insolvency proceedings against, the Master Issuer or the
appointment of an administrator or liquidator of the Master
Issuer.
6.8 Acknowledgement of Issuer Security Trustee: The Issuer Security Trustee
hereby acknowledges and agrees that save with respect to the obligations
of the Master Issuer to the Noteholders under the Issuer Notes and this
Deed which are not limited under paragraph (b) of Clause 6.7 (No
Enforcement by Issuer Secured Creditors) or under this Clause 6.8
(Acknowledgement of Issuer Security Trustee) and notwithstanding any
other provision of this Deed or any other Issuer Transaction Document, no
sum due or owing to any Issuer Secured Creditor or to the Issuer Security
Trustee (whether for itself or on behalf of the Issuer Secured Creditors)
from or by the Master Issuer under this Deed or any other Issuer
Transaction Document shall be payable by the Master Issuer except to the
extent that the Master Issuer has sufficient funds available or
(following enforcement of the Issuer Security) the Issuer Security
Trustee has realised sufficient funds from the Issuer Security to pay
such sum subject to and in accordance with the relevant Issuer Priority
of Payments and provided that all liabilities of the Master Issuer
required to be paid in priority thereto or pari passu therewith pursuant
to such Issuer Priority of Payments have been paid, discharged and/or
otherwise provided for in full.
6.9 Utilisation of Issuer Reserves: The Master Issuer and the Issuer Cash
Manager shall procure that, subject to and in accordance with the Issuer
Priority of Payments, amounts standing to the credit of the Issuer
Reserve Ledger shall only be debited for the purposes as specified in
paragraph 1 of Schedule 4 (Issuer Reserve Fund).
6.10 Adjustment of Issuer Reserves: The Issuer Reserve Minimum Amount, the
Programme Reserve Required Amount and the Programme Reserve Required
Percentage may be adjusted in accordance with paragraph 2 of Schedule 4
(Issuer Reserve Fund).
7. Enforcement
7.1 Notification: The Issuer Security Trustee shall, if practicable, give
prior notification to the Seller, Funding 2, the Cash Manager and the
Issuer Cash Manager of the Issuer Security Trustee's intention to enforce
the Issuer Security. However, the failure of the Issuer Security Trustee
to provide such notification shall not in any way prejudice the ability
of the Issuer Security Trustee to enforce the Issuer Security.
7.2 Enforceable:
Without prejudice to the provisions of Clause 9 (Receiver) the Issuer
Security shall become immediately enforceable and the power of sale and
other powers conferred by
11
Section 101 of the 1925 Act, as varied or amended by this Deed, shall be
exercisable by the Issuer Security Trustee:
(a) at any time following the service of an Issuer Enforcement Notice
(which has not been withdrawn); or
(b) if there are no Issuer Notes outstanding, following a default in
payment of any other Issuer Secured Obligations on its due date or
within any applicable grace period following such due date stated in
the relevant Issuer Transaction Document but subject always to any
limited recourse provisions stated therein and to Clause 6.7 (No
Enforcement by Issuer Secured Creditors) hereof.
7.3 Power of Sale:
(a) Notwithstanding any other provision of this Deed, the Issuer Secured
Obligations shall be deemed to have become due and payable for the
purposes of Section 101 of the 1925 Act and (to the extent
applicable) the statutory power of sale and of appointing a receiver
and other powers which are conferred on mortgagees under the 1925
Act as varied or extended by this Deed shall be deemed to arise
immediately after execution of this Deed.
(b) Section 103 of the 1925 Act shall not apply to this Deed and
forthwith after the Issuer Security has become enforceable in
accordance with Clause 7.2 (Enforceable) the statutory power of
sale, as extended by this Deed, and all other powers shall become
immediately exercisable without notice to the Master Issuer and the
provisions of the 1925 Act regulating the power of sale shall, so
far as they relate to the Issuer Charged Property, be varied and
extended accordingly.
7.4 Discretionary Enforcement: Subject to the provisions of this Deed, the
Issuer Security Trustee may at any time, at its discretion and without
notice, take such proceedings and/or other action as it may think fit
against, or in relation to, the Master Issuer or any other party to any
of the Issuer Transaction Documents to enforce their obligations under
any of the Issuer Transaction Documents. Subject to the provisions of
this Deed, at any time after the Issuer Security has become enforceable
in accordance with Clause 7.2 (Enforceable), the Issuer Security Trustee
may, at its discretion and without notice, take such steps as it may
think fit to enforce the Issuer Security.
7.5 Mandatory Enforcement: The Issuer Security Trustee shall not, and shall
not be bound to, take any proceedings, actions or steps under or in
connection with any of the Issuer Transaction Documents (including,
without limitation, any steps to enforce the Issuer Security) unless:
(a) it shall have been directed to do so by the Note Trustee acting in
accordance with the provisions of this Deed; or
(b) if there are no Issuer Notes outstanding, it shall have been
directed to do so by the Issuer Secured Creditor which ranks highest
in the Issuer Post-Enforcement Priority of Payments; and
12
(c) in either case, it shall have been indemnified to its satisfaction
against all liabilities, actions, proceedings, claims, costs,
charges, damages and expenses to which it may become liable or which
may be incurred by it in connection therewith.
7.6 Law of Property ▇▇▇ ▇▇▇▇: The provisions of the 1925 Act relating to the
power of sale and the other powers conferred by Section 101(1) and (2)
are hereby extended in relation to the Master Issuer as if such
extensions were contained in the 1925 Act such that at any time after the
Issuer Security has become enforceable in accordance with Clause 7.2
(Enforceable) above, the Issuer Security Trustee may in its absolute
discretion:
(a) make demand in the name of the Issuer Secured Creditors or in its
own right for any monies and liabilities in respect of the Issuer
Charged Property;
(b) enforce any rights it may have in respect of the whole or any part
of the Issuer Charged Property in such manner and upon such terms as
the Issuer Security Trustee shall think fit;
(c) take possession of, get in and collect the Issuer Charged Property
and perfect interests comprised therein;
(d) (subject to any restrictions under or in respect of the relevant
Issuer Charged Property) sell, transfer, convey, dispose of, vary or
otherwise deal with, and also grant any option to purchase, and
effect exchanges of, the whole or any part of Issuer Charged
Property or any interest therein in such manner, for such
consideration (if any) and generally upon such terms (including by
deferred payment or payment by instalments) as it may think fit
and/or to concur in any of the foregoing (and nothing shall preclude
any such disposal being made to a Issuer Secured Creditor);
(e) carry out any transaction, scheme or arrangement which the Issuer
Security Trustee may, in its absolute discretion, consider
appropriate with a view to or in connection with the sale of the
Issuer Charged Property;
(f) do all or any of the things or exercise all or any of the powers,
authorities and discretions conferred expressly or by implication on
any Receiver under Clause 9.6 (Powers of the Receiver) or otherwise
under this Deed; and/or
(g) exercise all or any of the powers conferred on mortgagees by the
1925 Act as varied or extended by this Deed and any other rights and
remedies that may be conferred by statute or common law or in equity
on mortgagees or receivers.
8. Upon Enforcement
8.1 Service of an Issuer Enforcement Notice: Without prejudice to the
effectiveness of any service of an Issuer Enforcement Notice, in the
event that an Issuer Enforcement Notice has been served (and not
withdrawn) by the Note Trustee on the Master Issuer and the Issuer
Security Trustee, the Issuer Security Trustee shall as soon as is
practicable notify each of the following parties of the enforcement of
the Issuer
13
Security (whether by service of a copy of any Issuer Enforcement Notice
or otherwise):
(a) the Seller;
(b) Funding 2;
(c) the Account Bank, the Cash Manager and the Issuer Cash Manager;
(d) the Paying Agents and the other Agents under the Issuer Paying Agent
and Agent Bank Agreement;
(e) any Issuer Swap Provider;
(f) the Corporate Services Provider; and
(g) each other Issuer Secured Creditor.
8.2 Crystallisation: From and including the date when the Note Trustee serves
an Issuer Enforcement Notice (which has not been withdrawn) on the Master
Issuer:
(a) notwithstanding any provision hereof or of any other Issuer
Transaction Document no amount may be withdrawn from the Issuer Bank
Accounts except with the prior written consent of the Issuer
Security Trustee; and
(b) if not already crystallised, but subject to any prohibition or
restriction imposed by law, any charge created by this Deed which is
a floating charge shall crystallise, provided that the floating
charge created by this Deed shall not be crystallised solely as a
result of obtaining a moratorium (or anything done with a view to
obtaining a moratorium) under the Insolvency ▇▇▇ ▇▇▇▇ except with
leave of the court.
8.3 Issuer Post-Enforcement Priority of Payments: At any time after the
Issuer Security has become enforceable in accordance with Clause 7.2
(Enforceable) and provided that the Issuer Enforcement Notice has not
been withdrawn, the relevant Issuer Available Revenue Receipts, Issuer
Available Principal Receipts and all other monies (excluding Swap
Collateral standing to the credit of the Issuer Swap Collateral Accounts)
paid to or received or recovered by or on behalf of the Master Issuer or
the Issuer Security Trustee or any Receiver appointed on its behalf,
including all proceeds following any sale, realisation of the Issuer
Charged Property or other enforcement of the Issuer Security and all
amounts (excluding Swap Collateral standing to the credit of the Issuer
Swap Collateral Accounts) not previously distributed and/or standing to
the credit of any Issuer Bank Account shall (if not already received by
the Issuer Security Trustee) be paid to and held by the Issuer Security
Trustee on trust to apply the same (save to the extent otherwise required
by applicable law) in accordance with the order of priority of the Issuer
Post-Enforcement Priority of Payments.
8.4 Certification of Amounts:
(a) The Issuer Security Trustee shall be entitled to rely on (and to
accept as conclusive evidence save in the case of manifest error) a
certificate from each Issuer Secured Creditor as to the amounts owed
to such Issuer Secured Creditor under the Issuer
14
Transaction Documents. The Issuer Security Trustee shall not take
into account for the purpose of the application of moneys in
accordance with the Issuer Post-Enforcement Priority of Payments any
amounts of which it has not been notified by the intended recipient
on or prior to the date in question.
(b) Each Issuer Secured Creditor will, at all times, promptly provide
the Issuer Security Trustee and/or any Receiver on request with a
certificate setting out detailed information as to the amount of the
Issuer Secured Obligations to which such Issuer Secured Creditor is
entitled and such other information as the Issuer Security Trustee
and/or any Receiver may require to enable or facilitate the Issuer
Security Trustee and/or any Receiver to perform its functions
hereunder or under any of the Issuer Transaction Documents, such
certificate to be in a form required by the Issuer Security Trustee
and/or any Receiver. In determining the respective entitlements of
the Issuer Secured Creditors hereunder, such certificates shall be
binding on all of the Issuer Secured Creditors.
8.5 Retention Account: If the Issuer Security Trustee enforces the Issuer
Security at a time when either no amounts or not all amounts owing in
respect of the Issuer Secured Obligations have become due and payable or
any of the Issuer Secured Obligations are at such time contingent or
future, the Issuer Security Trustee or a Receiver may, for so long as no
such amounts or not all such amounts have become due and payable or any
of the Issuer Secured Obligations are at such time contingent or future,
pay any monies referred to in Clause 8.3 (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 (Issuer
Post-Enforcement Priority of Payments) as and when any of the amounts
referred to therein become due and payable.
8.6 Issuer Security Trustee Rights upon Enforcement: In addition to any other
rights expressly provided herein, for the period commencing upon the
service of an Issuer Enforcement Notice and terminating upon the
notification to the Issuer Secured Creditors by the Issuer Security
Trustee that all Issuer Secured Obligations have been satisfied in full
[or that such Issuer Enforcement Notice has been withdrawn]:
(a) (provided such Issuer Secured Creditor has received a copy of, or
other notice of the service on the Master Issuer of, any such Issuer
Enforcement Notice) each Issuer Secured Creditor agrees that it will
pay to the Issuer Security Trustee or the Receiver, as the case may
be, all monies received or recovered by such Issuer Secured Creditor
(whether by way of set-off or otherwise) in order that such amounts
may be applied by the Issuer Security Trustee in accordance with
Clause 8.3 (Issuer Post-Enforcement Priority of Payments);
(b) save as otherwise expressly provided in this Deed or as required by
the Issuer Security Trustee, all payments under or arising from this
Deed and all amounts payable to the Master Issuer by any party to
this Deed under any Issuer Transaction Document shall be paid to the
Issuer Security Trustee or to its order;
(c) save as otherwise expressly provided in this Deed, all rights or
remedies provided for by this Deed or available at law or in equity
to the Issuer Secured Creditors are exercisable by the Issuer
Security Trustee;
15
(d) save as otherwise expressly provided in this Deed, all rights to
compel performance of the Issuer Transaction Documents are
exercisable by the Issuer Security Trustee; and
(e) all payments in respect of the Issuer Secured Obligations shall
operate in satisfaction pro tanto of the Master Issuer's covenants
to the relevant Issuer Secured Creditors.
8.7 Swap Collateral: Notwithstanding the foregoing provisions of this Clause
8 (Upon Enforcement), at any time after the Issuer Security has become
enforceable in accordance with Clause 7.2 (Enforceable) and provided that
an Issuer Enforcement Notice has not been withdrawn:
(a) all Swap Collateral delivered to or received or recovered by or on
behalf of the Master Issuer or the Issuer Security Trustee or any
Receiver appointed on its behalf pursuant to any Issuer Swap
Agreement is deposited into a Funding 2 Swap Collateral Account; and
(b) Swap Collateral may only be withdrawn from the relevant Issuer Swap
Collateral Account for the purpose of (A) returning Swap Collateral
to an Issuer Swap Provider pursuant to the terms of the applicable
Issuer Swap Agreement or (B) applying Swap Collateral in or towards
satisfaction of such Issuer Swap Provider's obligations under the
applicable Issuer Swap Agreement.
9. Receiver
9.1 Appointment: At any time after the Issuer Security constituted hereunder
becomes enforceable, and whether or not the Issuer Security Trustee has
taken possession of the Issuer Charged Property, the Issuer Security
Trustee may, in addition to all statutory and other powers of appointment
or otherwise, appoint, by writing or by deed, such person or persons
(including an officer or officers of the Issuer Security Trustee) as the
Issuer Security Trustee thinks fit to be a receiver, a receiver and
manager or an administrative receiver of the Issuer Charged Property or
any part thereof (each a "Receiver") and, in the case of an appointment
of more than one person, to act together or independently of the other or
others.
9.2 Removal and Replacement: Except as otherwise required by statute, the
Issuer Security Trustee may by writing or by deed remove a Receiver
appointed by it whether or not appointing another in its place and may
also appoint another Receiver or to act with any other Receiver or to
replace any Receiver who resigns, retires or otherwise ceases to hold
office.
9.3 Extension of Appointment: The exclusion of any part of the Issuer Charged
Property from the appointment of the Receiver shall not preclude the
Issuer Security Trustee from subsequently extending its appointment (or
that of the Receiver replacing it) to that part of the Issuer Charged
Property or appointing another Receiver over any other part of the Issuer
Charged Property.
9.4 Agent of Master Issuer: The Receiver shall, so far as the law permits, be
the agent of the Master Issuer and (subject to any restriction or
limitation imposed by law) the
16
Master Issuer alone shall be responsible for the Receiver's contracts,
engagements, acts, omissions, misconduct, negligence or default and for
liabilities incurred by it; and in no circumstances whatsoever shall the
Issuer Security Trustee or any Issuer Secured Creditor be in any way
responsible for or incur any liability in connection with its contracts,
engagements, acts, omissions, misconduct, negligence or default, and if a
liquidator of the Master Issuer shall be appointed, the Receiver shall
act as principal and not as agent for the Issuer Security Trustee.
Notwithstanding the generality of the foregoing, such Receiver shall in
the exercise of its powers, authorities and discretions conform to the
regulations or directions (if any) from time to time made and given by
the Issuer Security Trustee.
9.5 Remuneration: Subject as provided otherwise by applicable law, the
remuneration of the Receiver shall be fixed by the Issuer Security
Trustee and may be or include a commission calculated by reference to the
gross amount of all monies received or otherwise. Such remuneration and
such commission (if any) shall be payable hereunder by the Master Issuer
alone subject always to Clause 8.3 (Issuer Post-Enforcement Priority of
Payments) and the amount of such remuneration shall form part of the
Issuer Secured Obligations and shall accordingly be secured by the Issuer
Security.
9.6 Powers of the Receiver: The Receiver of the Master Issuer, in addition to
any powers conferred on an administrative receiver, receiver, manager or
receiver and manager by statute or common law, shall have the power to:
(a) take possession of, get in and collect the Issuer Charged Property;
(b) (subject to any restrictions under or in respect of relevant Issuer
Charged Property) sell, transfer, convey, license, release or
otherwise dispose of vary or deal with, and also grant any option to
purchase, and effect exchanges of, the whole or any part of the
Issuer Charged Property or any interest therein and grant or accept
surrenders, disclaimers and variations in relation to or otherwise
affecting the Issuer Charged Property in each case in such manner,
for such consideration (if any) and generally upon such terms
(including by deferred payment of payment by instalments) as it may
think fit and/or concur in any of the foregoing (and nothing shall
preclude any such disposal being made to a Issuer Secured Creditor);
(c) carry out any transaction, scheme or arrangement which it may, in
its absolute discretion, consider appropriate with a view to or in
connection with the sale of the Issuer Charged Property;
(d) insure the Issuer Charged Property against such risks and for such
amounts as it may consider prudent and obtain bonds and performance
guarantees;
(e) otherwise protect, maintain or improve, the Issuer Charged Property
or any part thereof in any manner and for any purpose whatsoever as
it shall think fit;
(f) transfer all or any of the Issuer Charged Property and/or any of the
liabilities to any other company or body corporate, whether or not
formed or acquired for the purpose (and whether or not a subsidiary
or associated company of the
17
Issuer Security Trustee or any other party to the Issuer Transaction
Documents) and to form a subsidiary or subsidiaries of the Master
Issuer;
(g) carry on and manage or concur in managing or appoint a manager of,
the whole or any part of the business of the Master Issuer in such
manner as it shall in its absolute discretion think fit including
the power to enter into any contract and to perform, repudiate,
rescind or vary any contract to which the Master Issuer is a party;
(h) sell or concur in selling the whole or any part of the Master
Issuer's business whether as a going concern or otherwise;
(i) appoint, dismiss, engage or vary the terms of employment of any
employees, managers, agents or advisers of the Master Issuer upon
such terms as to remuneration and otherwise for such periods as it
may in its absolute discretion think fit;
(j) in connection with the exercise or proposed exercise of any of its
powers or in order to obtain payment of its remuneration or
reimbursement of its expenses (in each case, whether or not already
due), borrow or raise money from any person, without security or on
the security of the Issuer Charged Property (either in priority to
the Issuer Security or otherwise) and generally in such manner and
on such terms as it may think fit;
(k) bring, defend, submit to arbitration, negotiate, compromise,
enforce, abandon and settle actions, suits, claims and proceedings
concerning or affecting the Issuer Charged Property or the Issuer
Security;
(l) exercise any powers, discretions, voting, conversion or other rights
or entitlements in relation to any of the Issuer Charged Property or
incidental to the ownership of or rights in or to any of the Issuer
Charged Property and to complete or effect any transaction entered
into by the Master Issuer or disclaim, abandon or modify all or any
of the outstanding contracts or arrangements of the Master Issuer
relating to or affecting the Issuer Charged Property;
(m) generally carry out, or cause to be carried out any transaction or
scheme or arrangement whatsoever, whether similar or not to any of
the foregoing, in relation to the Issuer Charged Property which it
may consider expedient as effectual as if it were solely and
absolutely entitled to the Issuer Charged Property;
(n) in connection with the exercise of any of its powers, execute or do,
or cause or authorise to be executed or done, on behalf of or in the
name of the Master Issuer or otherwise, as it may think fit, all
documents, acts or things which it may consider appropriate;
(o) redeem, discharge or compromise any security whether or not having
priority to the security created hereunder;
18
(p) enter into covenants, guarantees, commitments, indemnities and other
obligations or liabilities as it shall think fit;
(q) pay and discharge out of the profits and income of the Issuer
Charged Property and the monies to be made by it carrying on any
such business as aforesaid the expenses in and about the carrying on
and management of such business or in the exercise of any of the
powers conferred by Clause 9 (Receivers) or otherwise in respect of
the Issuer Charged Property and all outgoings which it shall think
fit to pay and to apply the residue of the said profits, income or
monies in the manner provided by Clause 8.3 (Issuer Post-Enforcement
Priority of Payments); and
(r) exercise any other powers, rights and/or remedies that may be
available at law or in equity including the powers referred to in
Schedule 1 (and where applicable Schedule 2) of the Insolvency ▇▇▇
▇▇▇▇.
9.7 Security: The Issuer Security Trustee may from time to time and at any
time require any such Receiver to give security for the due performance
of its duties and may fix the nature and amount of the security to be so
given but the Issuer Security Trustee shall not be bound in any such case
to require any such security.
9.8 Application by Receiver: Save so far as otherwise directed by the Issuer
Security Trustee, all monies from time to time received by such Receiver
shall be paid over to the Issuer Security Trustee to be held by it on the
trusts declared under this Deed and to be distributed in accordance with
Clause 8.3 (Issuer Post-Enforcement Priority of Payments).
9.9 Payment to Receiver: The Issuer Security Trustee may pay over to such
Receiver any monies constituting part of the Issuer Charged Property for
the same to be applied for the purposes of this Deed by such Receiver and
the Issuer Security Trustee may from time to time determine what funds
the Receiver shall be at liberty to keep in hand with a view to the
performance of its duties as such Receiver.
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 Appointment of Administrator:
(a) Subject to any relevant provisions of the Insolvency ▇▇▇ ▇▇▇▇, the
Issuer Security Trustee may, by any instrument or deed of
appointment, appoint one or more persons to be the administrator of
the Master Issuer at any time after:
(i) the service of an Issuer Enforcement Notice; or
(ii) being requested to do so by the Master Issuer; or
(iii) any application having been made to the court for an
administration order under the Insolvency ▇▇▇ ▇▇▇▇; or
19
(iv) any person having ceased to be an administrator as a result of
any event specified in paragraph 90 of Schedule B1 to the
Insolvency ▇▇▇ ▇▇▇▇; or
(v) any notice of intention to appoint an administrator having been
given by any person or persons entitled to make such
appointment under the Insolvency ▇▇▇ ▇▇▇▇.
(b) Where any such appointment is made at a time when an administrator
continues in office, the administrator shall act either jointly or
concurrently with the administrator previously appointed hereunder,
as the appointment specifies.
(c) Subject to any applicable order of the Court, the Issuer Security
Trustee may replace any administrator, or seek an order replacing
the administrator, in any manner allowed by the Insolvency ▇▇▇ ▇▇▇▇.
(d) Where the administrator was appointed by the Issuer Security Trustee
under paragraph 14 of Schedule B1 to the Insolvency ▇▇▇ ▇▇▇▇, the
Issuer Security Trustee may, by notice in writing to the Master
Issuer, replace the administrator in accordance with paragraph 92 of
Schedule B1 to the Insolvency ▇▇▇ ▇▇▇▇.
(e) Every such appointment shall take effect at the time and in the
manner specified by the Insolvency ▇▇▇ ▇▇▇▇.
(f) If at any time and by virtue of any such appointment(s) any two or
more persons shall hold office as administrators of the same assets
or income, such administrators may act jointly or concurrently as
the appointment specifies so that, if appointed to act concurrently,
each one of such administrators shall be entitled (unless the
contrary shall be stated in any of the deed(s) or other
instrument(s) appointing them) to exercise all the functions
conferred on an administrator by the Insolvency ▇▇▇ ▇▇▇▇.
(g) Every administrator shall have all the powers of an administrator
under the Insolvency ▇▇▇ ▇▇▇▇.
(h) In exercising his functions hereunder and under the Insolvency ▇▇▇
▇▇▇▇, the administrator acts as agent of the Master Issuer and does
not act as agent of the Issuer Security Trustee.
(i) Every administrator shall be entitled to remuneration for his
services in the manner fixed by or pursuant to the Insolvency ▇▇▇
▇▇▇▇ or the Insolvency Rules 1986.
9.12 Administration:
(a) Upon application being made to a court of competent jurisdiction for
an administration order or the service of a notice of intention to
appoint an administrator or the filing of documents with the court
for the appointment of an administrator in relation to the Master
Issuer or other order having substantially the same effect to be
made on application by a creditor or
20
creditors of the Master Issuer, the Issuer Security Trustee shall,
(except in the circumstances where the Issuer Security Trustee has
taken steps to appoint an administrator in accordance with Clause
9.11 (Appointment of an Administrator)), subject to it being
indemnified to its satisfaction, as soon as practicable appoint a
Receiver in accordance with this Deed (who shall, to the extent
permitted by law, be an "administrative receiver" under Section 29
(2) of the Insolvency Act 1986) of the whole of the Issuer Charged
Property and, in the case of any application to the court or
petition the Issuer Security Trustee shall instruct the Receiver to
attend at the hearing of the application or petition and take such
steps as are necessary to prevent the appointment of an
administrator. The Issuer Secured Creditors shall co-operate and do
all acts and enter into such further documents, deeds or agreements
as the Issuer Security Trustee may deem necessary or desirable to
ensure that an administration order is not made or that an
administrator is not otherwise appointed and that an administrative
receiver is appointed.
(b) Paragraph 14 of Schedule B1 to the Insolvency ▇▇▇ ▇▇▇▇ applies to
the floating charge created hereunder.
10. Further Assurance and Power of Attorney
10.1 Further Assurance: The Master Issuer covenants with and undertakes to the
Issuer Security Trustee from time to time (notwithstanding that the
security may not have become enforceable and the Note Trustee may not
have served any Issuer Enforcement Notice) upon demand:
(a) to execute, at the Master Issuer's cost, any document or do any act
or thing which the Issuer Security Trustee or any Receiver may
specify (including executing such Security Interests over its rights
in and over the Issuer Charged Property and any other assets of the
Master Issuer in such form as the Issuer Security Trustee and/or any
Receiver may require) with a view to:
(i) registering, perfecting, protecting or improving any charge or
security or Security Interest created or intended to be created
by or pursuant to this Deed (including any act or document
which may be required or desirable under the laws of any
jurisdiction in which any property or assets may be located in
order to confer on the Issuer Security Trustee security over
such property and assets equivalent or similar to the security
intended to be conferred by or pursuant to this Deed) and in
such form as the Issuer Security Trustee or the Receiver may
specify; and/or
(ii) facilitating the realisation of or enforcement of rights of,
all or any part of the Issuer Charged Property or the exercise,
or proposed exercise, of any of the powers, duties or
discretions vested or intended to be vested in the Issuer
Security Trustee or such Receiver by or pursuant to this Deed
or doing any act or thing deemed necessary by the Issuer
Security Trustee or the Receiver;
(b) to give or join in giving or procure the giving of any notices to
any persons and obtain or procure that there is obtained any
necessary acknowledgements
21
in relation to such notices, all in such form, as the Issuer
Security Trustee or the Receiver may require at the cost of the
Master Issuer,
and for the purpose of this Clause 10.1 (Further Assurance) a certificate
in writing signed by the Issuer Security Trustee to the effect that any
particular assurance or thing is required by it shall be conclusive
evidence of that fact provided that the Master Issuer shall not be
obliged to execute any such documentation or take any other action or
steps to the extent that it would breach a restriction in any agreement
to which it is a party or conflict with any applicable law.
10.2 Execution of Power of Attorney: Immediately upon execution of this Deed,
the Master Issuer shall execute and deliver to the Issuer Security
Trustee the power of attorney in or substantially in the form set out in
Schedule 1 (Form of Security Power of Attorney).
10.3 Issuer Charged Property on Trust: To the extent permitted to do so under
the Issuer Transaction Documents, for the purpose of giving effect to
this Deed, the Master Issuer hereby declares that, after service of an
Issuer Enforcement Notice, it will hold all the Issuer Charged Property
(subject to the right of redemption) upon trust to convey, assign or
otherwise deal with such Issuer Charged Property in such manner and to
such person as the Issuer Security Trustee shall direct pursuant to this
Deed, and declares that it shall be lawful for the Issuer Security
Trustee to appoint a new trustee or trustees of the Issuer Charged
Property in place of the Master Issuer.
11. Crystallisation
11.1 Notice: In addition and without prejudice to any other event resulting in
a crystallisation of the floating charge created by this Deed or any
other right the Issuer Security Trustee may have, but subject to any
prohibition or restriction imposed by law, the Issuer Security Trustee
may, by notice in writing to the Master Issuer, declare that the floating
charge hereby created shall be converted into first specific fixed
charges over such of the undertaking, property and assets of the Master
Issuer as the Issuer Security Trustee may specify in such notice at any
time if:
(a) a Note Event of Default or a Potential Note Event of Default has
occurred; or
(b) the Issuer Security Trustee believes that the Issuer Charged
Property or any part thereof is in danger of being seized or sold
under any form of distress, execution or diligence levied or is
otherwise in jeopardy; or
(c) the Issuer Security Trustee considers that it is desirable in order
to protect the priority of the security created by this Deed,
provided that the floating charge created by this Deed may not be
converted into a fixed charge or charges solely as a result of the
obtaining of a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency ▇▇▇ ▇▇▇▇ 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, but subject to any
22
prohibition or restriction imposed by law, the floating charge created
under this Deed shall automatically and without notice be converted with
immediate effect into a fixed charge as regards:
(a) all property, assets or undertaking of the Master Issuer subject to
the floating charge, upon:
(i) the Master Issuer ceasing to carry on its business or a
material part thereof as a going concern;
(ii) the presentation of a petition for or the making of an
application for the compulsory winding-up of the Master Issuer;
(iii) the convening of a meeting for the passing of a resolution for
the voluntary winding-up of the Master Issuer;
(iv) the making of an application for an administration order or the
filing of documents with the court for the appointment of an
administrator or the service of a notice of intention to
appoint an administrator in relation to the Master Issuer;
(v) the presentation or making of an application for a warrant of
execution, writ of fieri facias, garnishee order or charging
order in respect of any of the assets of the Master Issuer
subject to the floating charge;
(vi) the occurrence of a Note Event of Default; and/or
(b) any property, assets or undertaking of the Master Issuer, which
become subject to an Encumbrance in favour of any person other than
the Issuer Security Trustee or which is/are the subject of a sale,
transfer or other disposition, in either case, contrary to the
covenants and undertakings contained in the Issuer Transaction
Documents, immediately prior to such Encumbrance arising or such
sale, transfer or other disposition being made,
provided that the floating charge created by this Deed may not be
converted into a fixed charge or charges solely as a result of the
obtaining of a moratorium (or anything done with a view to obtaining a
moratorium) under the Insolvency ▇▇▇ ▇▇▇▇ without the leave of the court.
12. Provisions relating to the Security
12.1 Continuing Security: The Issuer Security shall be:
(a) in addition to and independent of and shall not operate so as to
prejudice or affect or merge in any other security, right of
recourse or other right whatsoever which may be held by any of the
Issuer Secured Creditors or the Issuer Security Trustee on their
behalf in respect of the whole or any part of the Issuer Secured
Obligations and shall not be affected by any release, reassignment
or discharge of such other security; and
(b) a continuing security for the Issuer Secured Obligations and shall
remain in force as continuing security for the Issuer Secured
Creditors and shall not be
23
considered as satisfied or discharged by any intermediate payment or
settlement of the whole or any part of the Issuer Secured
Obligations or the existence at any time of a credit balance on any
current or other account or any other matter or thing whatsoever.
12.2 Consolidation: Section 93 of the 1925 Act shall not apply in relation to
any of the Issuer Security.
12.3 Ruling Off: If the Issuer Security Trustee receives notice of any
Encumbrance affecting the whole or any part of the Issuer Charged
Property or any security granted hereunder in contravention of the
provisions hereof:
(a) the Issuer Security Trustee may open a new account in the name of
the Master Issuer and, if it does not, it shall nevertheless be
deemed to have done so at the time it received such notice; and
(b) all payments made by the Master Issuer to the Issuer Security
Trustee after the Issuer Security Trustee receives such notice shall
be credited or deemed to have been credited to the new account, and
in no circumstances whatsoever shall operate to reduce the Issuer
Secured Obligations as at the time the Issuer Security Trustee
received such notice.
12.4 Avoidance of Payments: Any settlement, discharge or release between (a)
the Master Issuer and (b) the Issuer Security Trustee or any Receiver
(the "Relevant Person(s)") shall be conditional upon no security or
payment granted or made to the Relevant Person(s) by the Master Issuer or
any other person being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency or liquidation for the time
being in force and, in the event of such security or payment being so
avoided or reduced, the Relevant Person(s) shall be entitled to recover
the value or amount of such security or payment from the Master Issuer
and from the security subsequently as if such settlement, discharge or
release had not occurred.
12.5 Retention of Charges: If the Issuer Security Trustee shall have
reasonable grounds for believing that the Master Issuer may be insolvent
or deemed to be insolvent pursuant to the provisions of the Insolvency
▇▇▇ ▇▇▇▇ (and production of a solvency certificate of a duly authorised
officer of the Master Issuer shall be prima facie evidence of the
solvency of the Master Issuer) as at the date of any payment made by the
Master Issuer to the Issuer Security Trustee and that as a result, such
payment may be capable of being avoided or clawed back, the Issuer
Security Trustee shall be at liberty to retain the charges contained in
or created pursuant to this Deed until the expiry of a period of one
month plus such statutory period within which any assurance, security,
guarantee or payment can be avoided or invalidated after the payment and
discharge in full of all Issuer Secured Obligations notwithstanding any
release, settlement, discharge or arrangement which may be given or made
by the Issuer Security Trustee on, or as a consequence of, such payment
or discharge of liability provided that, if at any time within such
period, a petition or an application shall be presented to a competent
court for an order for the winding up or the making of an administration
order in respect of the Master Issuer, or if the Master Issuer shall
commence to be wound up or to go into administration or any analogous
proceedings shall be commenced by or against the Master Issuer, as the
case may be, the Issuer Security Trustee shall be at liberty to continue
to retain such security for such further
24
period as the Issuer Security Trustee may determine and such security
shall be deemed to continue to have been held as security for the payment
and discharge to the Issuer Security Trustee of all Issuer Secured
Obligations.
12.6 Possession: Entry into possession of the Issuer Charged Property or any
part thereof shall not render the Issuer Security Trustee or any Receiver
of the Master Issuer liable to account as mortgagee or creditor in
possession for anything except actual receipts. If and whenever the
Issuer Security Trustee or the Receiver enters into possession of the
Issuer Charged Property, it shall be entitled at any time to go out of
such possession.
12.7 Change of Name, etc.: This Deed shall remain valid and enforceable
notwithstanding any change in the name, composition or constitution of
the Issuer Security Trustee or the Master Issuer or any amalgamation,
merger or consolidation by the Issuer Security Trustee or the Master
Issuer, with any other corporation (whether, in the case of the Master
Issuer, permitted under the Issuer Transaction Documents or not).
13. Protection of Third Parties
13.1 No Enquiry: No purchaser from, or other person dealing with, the Issuer
Security Trustee or a Receiver shall be concerned to enquire whether any
of the powers exercised or purported to be exercised under this Deed has
arisen or become exercisable, whether the Issuer Secured Obligations
remain outstanding or have become payable, whether the Issuer Security
Trustee or the Receiver is authorised to act or as to the propriety or
validity of the exercise or purported exercise of any power; and the
title and the position of such a purchaser or other person shall not be
impeachable by reference to any of those matters and all the protection
to purchasers contained in Sections 104 and 107 of the 1925 Act shall
apply to any person purchasing from or dealing with the Issuer Security
Trustee or any such Receiver.
13.2 Receipts to Current Parties: Upon any sale, calling in, collection,
enforcement or other realisation of the Issuer Charged Property in
accordance with the terms hereof and upon any other dealing or
transaction under or pursuant to this Deed, the receipt of the Issuer
Security Trustee or any Receiver shall be an absolute and a conclusive
discharge to a purchaser or other person dealing with the Issuer Security
Trustee or such Receiver and shall relieve it of any obligation to see to
the application of any monies paid to or by the direction of the Issuer
Security Trustee or such Receiver.
14. Set-Off
The Issuer Security Trustee may at any time after the security created
under this Deed 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 Master Issuer whether in its own name or jointly
with others and held by it or any Issuer Secured Creditor and may set-off
or transfer all or any part of any credit balance or any sum standing to
the credit of any such account (whether or not the same is due to the
Master Issuer from the Issuer Security Trustee or relevant Issuer Secured
Creditor and whether or not the credit balance and the account in debit
or the Issuer Secured Obligations are expressed in the same currency in
which case the Issuer Security Trustee is hereby authorised to effect any
necessary conversions at its prevailing rates of exchange) in or towards
25
satisfaction of any of the Issuer Secured Obligations (and on or at any
time after the Issuer Security has become enforceable in accordance with
Clause 7.2 (Enforceable) the Issuer Security Trustee may make such
application notwithstanding any specified maturity of any deposits), but
subject always to the Issuer Priority of Payments, and may in its
absolute discretion estimate the amount of any liability of the Master
Issuer which is contingent or unascertained and thereafter set-off such
estimated amount and no amount shall be payable by the Issuer Security
Trustee to the Master Issuer unless and until all the Issuer Secured
Obligations have been ascertained and fully repaid or discharged.
15. Representations and Covenants
15.1 Representations and Warranties:
(a) The Master Issuer hereby represents to the Issuer Security Trustee that
it is, as of the date hereof, the beneficial owner of all of the Issuer
Charged Property free and clear of all liens, claims, charges or
Encumbrances except for the Issuer Security and undertakes that it will
retain all rights associated with ownership of the Issuer Charged
Property free and clear of all liens, claims, charges, Encumbrances
except for the Issuer Security.
(b) The Master Issuer represents that it has taken all necessary steps to
enable it to create the Issuer Security in respect of the Issuer Charged
Property in accordance with this Deed and has taken no action or steps
which will or may prejudice its right, title and interest in, to and
under the Issuer Charged Property.
(c) The Master Issuer represents that its Centre of Main Interests (as
defined in the EU Regulation) is in the UK.
15.2 Negative Covenants: The Master Issuer hereby undertakes that, for so long
as any Issuer Secured Obligation remains outstanding, the Master Issuer
shall not, save to the extent contemplated or provided in the Issuer
Transaction Documents or unless it has obtained the prior written consent
of the Issuer Security Trustee:
(a) open or maintain any bank account or deposit account with any bank
or any other financial institution other than the Issuer Bank
Accounts or the Issuer Swap Collateral Accounts or close the Issuer
Bank Accounts or the Issuer Swap Collateral Accounts;
(b) either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily,
sell, transfer, lease or otherwise dispose of or grant any option
over all or any part of its property, assets or undertaking or any
interest, estate, right, title or benefit therein or agree or
purport to do any of the foregoing;
(c) create or permit to subsist any Security Interest (unless arising by
operation of law) over or in respect of any of its property, assets
(including any uncalled capital) or undertaking, present or future
provided that on the issuance of Issuer Notes on any Closing Date,
the making available of any Loan Tranches by the Master Issuer to
Funding 2 or if any new Funding 2 Intercompany Loans are made
available by a new Funding 2 Issuer to Funding 2 in
26
accordance with the terms of the Transaction Documents, the Master
Issuer shall be entitled to create the Security Interests (if any)
contemplated under the applicable Deed of Accession;
(d) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness of or
of any obligation or any person;
(e) pay any dividend or make any other distribution to its shareholder
or issue any further shares;
(f) consolidate or merge with any other person or convey or transfer its
properties or assets substantially as an entirety to any other
person;
(g) make or consent to any amendment to, or variation of or agree to
waive or authorise any breach of any provision of any of the Issuer
Transaction Documents or permit any person whose obligations form
part of the Issuer Charged Property to be released from its
respective obligations;
(h) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X of
the Income and Corporation Taxes Act 1988 except for full payment at
the current applicable rate of corporation tax applied to the
surrendered amount and payable at the date when corporation tax is
due to be paid by the claimant or would be due in the absence of the
surrender;
(i) do any act or thing the effect of which would be to make the Master
Issuer resident in any jurisdiction other than the United Kingdom;
(j) permit any person other than the Master Issuer and the Issuer
Security Trustee to have any equitable interest in any of its
property, assets or undertakings or any interest, estate, right,
title or benefit therein;
(k) purchase or otherwise acquire any Note or Notes (including the
Issuer Notes); 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 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 Master Issuer covenants and undertakes with the
Issuer Security Trustee for the benefit of the Issuer Secured Creditors
that it shall:
(a) Registration of Security: file or procure the filing with the
Registrar of Companies pursuant to Chapter I of Part XII of the
Companies ▇▇▇ ▇▇▇▇ of duly completed Forms 395 together with an
executed original of this Deed and the required fee within 21 days
after the date of this Deed;
(b) Notice of Assignment: on the date hereof join with the Issuer
Security Trustee in giving notice of the assignments and the
security created under or pursuant
27
to this Deed to Funding 2, the Funding 2 Security Trustee and each
other party to any Issuer Transaction Document not being a party to
this Deed and on any date hereafter (to the extent only that such
notice and acknowledgement is not given under or pursuant to this
Deed) join with the Issuer Security Trustee in giving notice of the
assignments and the security created under this Deed to any party to
an Issuer Transaction Document entered into by the Master Issuer
after the date hereof in each case in the form (or substantially in
the form) set out in Schedule 3 (Form of Notice of Assignment);
(c) Accounts for Stock Exchange: cause to be prepared and certified by
the Auditors of the Master Issuer in respect of each Financial Year,
accounts in such form as will comply with relevant legal and
accounting requirements for the time being and all requirements for
the time being of any stock exchange on which the Issuer Notes are
listed;
(d) Books and Records: at all times keep or procure the keeping of such
books of account and records as may be necessary to comply with all
applicable laws and so as to enable accounts of the Master Issuer to
be prepared and allow the Issuer Security Trustee and any person or
persons appointed by the Issuer Security Trustee free access to such
books of account and records at all reasonable times during normal
business hours upon reasonable notice in writing, provided that such
inspection shall only be for the purposes of carrying out its duties
under this Deed and any information so obtained shall only be used
and passed on to any other person for the purpose of the Issuer
Security Trustee carrying out its duties under this Deed;
(e) Notice of Note Event of Default: give notice in writing to the
Issuer Security Trustee forthwith upon becoming aware of the
occurrence of any Note Event of Default or Potential Note Event of
Default including the status of any such default or matter and what
action the Master Issuer is taking or proposes to take with respect
thereto, without waiting for the Issuer Security Trustee to take any
action;
(f) Administration: immediately on receipt or notice of the same supply
the Issuer Security Trustee full details of any application to the
court for an administration order under paragraph 10 of Schedule B1
of the Insolvency Act made in respect of the Master Issuer and
(without prejudice to paragraph 12(2) of Schedule B1 to the
Insolvency Act) of any actual or proposed appointment of an
administrator by the holder of a qualifying floating charge (within
the meaning of paragraph 14 of Schedule B1 to the Insolvency Act) or
(without prejudice to paragraph 26(1) of Schedule B1 to the
Insolvency Act) by the Master Issuer or its directors.
(g) Certificates Relating to Financial Information: give to the Issuer
Security Trustee (a) within seven days after demand by the Issuer
Security Trustee therefor and (b) (without the necessity for any
such demand) promptly after the publication of its audited accounts
in respect of each Financial Year commencing with the Financial Year
first ending after the date hereof and in any event not later than
180 days after the end of each such Financial Year a certificate
signed by two directors of the Master Issuer to the effect that as
at a date not more than seven days before delivering such
certificate (the
28
"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 Note Event of
Default or any Potential Note Event of Default (or if such then
exists or existed specifying the same) and that during the period
from and including the certification date of the last such
certificate (or in the case of the first such certificate the date
hereof) to and including the certification date of such certificate
the Master Issuer has complied with all its obligations contained in
this Deed and each of the other Issuer Transaction Documents or (if
such is not the case) specifying the respects in which it has not so
complied;
(h) Further Assurances: so far as permitted by applicable law, at all
times execute all such further documents and do all such further
acts and things as may be necessary at any time or times in the
opinion of the Issuer Security Trustee to give effect to this Deed
and the other Issuer Transaction Documents;
(i) Compliance with Issuer Transaction Documents: observe and comply
with its obligations and use its reasonable endeavours to procure
that each other party to any of the Issuer Transaction Documents
complies with and performs all its respective obligations under each
Issuer Transaction Document and notify the Issuer Security Trustee
forthwith upon becoming aware of any breach by any such other party
to any Issuer Transaction Document;
(j) Information: so far as permitted by applicable law, give or procure
to be given to the Issuer Security Trustee such opinions,
certificates, information and evidence as it shall require and in
such form as it shall require (including without limitation the
procurement by the Master Issuer of all such certificates called for
by the Issuer Security Trustee pursuant to this Deed) for the
purpose of the discharge or exercise of the duties, trusts, powers,
authorities and discretions vested in it under this Deed or by
operation of law;
(k) Taxes: duly and promptly pay and discharge all Taxes imposed upon it
or its assets unless such Taxes are, in the opinion of the Issuer
Security Trustee, being contested in good faith by the Master
Issuer;
(l) Issuer Swap Agreements: in the event of termination of any
Transaction (as defined in an Issuer Swap Agreement) under an Issuer
Swap Agreement, notify the Security Trustee and the Rating Agencies
and use its best efforts to enter into a replacement of that
Transaction upon terms acceptable to the Rating Agencies and the
Issuer Security Trustee with an issuer Swap provider whom the Rating
Agencies have previously confirmed in writing to the Master Issuer
and the Issuer Security Trustee will not cause the then-current
ratings of the Issuer Notes to be downgraded, withdrawn or
qualified;
(m) Bank Accounts: in the event of termination of the Issuer Bank
Account Agreement, subject to and in accordance with the provisions
of the Issuer Bank Account Agreement use its reasonable endeavours
to enter into a replacement bank account agreement;
(n) Cash Management Agreement: in the event of termination of the Issuer
Cash Management Agreement, subject to and in accordance with the
provisions of
29
the Issuer Cash Management Agreement, use its reasonable endeavours
to enter into a replacement cash management agreement; and
(o) Centre of Main Interests: the Master Issuer shall have its centre of
Main Interests (as defined in the EU Regulation) in the UK.
In addition to the foregoing, the Master Issuer hereby covenants with
each of the Issuer Swap Providers, that it shall not make any amendment
or modification to, or exercise any waiver in respect of, the Issuer Cash
Management Agreement which would be adversely prejudicial to the
interests of any Issuer Swap Provider, without the prior written consent
of the affected Issuer Swap Provider save that to the extent required,
such consent shall not be unreasonably withheld or delayed.
16. Supplement to Trustee Acts
16.1 Trustee ▇▇▇ ▇▇▇▇ and Trustee ▇▇▇ ▇▇▇▇: The Issuer Security Trustee shall
have all the powers conferred upon trustees by the Trustee ▇▇▇ ▇▇▇▇ and
the Trustee ▇▇▇ ▇▇▇▇ of England and Wales and by way of supplement
thereto it is expressly declared as set out in the remaining provisions
of this Clause 16 (Supplement to Trustee Acts).
16.2 Reliance on Information:
(a) The Issuer Security Trustee may in relation to this Deed or any
other Issuer Transaction Document act and rely upon the opinion or
advice of, or a certificate or a report or any information obtained
from, any lawyer, banker, valuer, surveyor, securities company,
broker, auctioneer, accountant or other expert in the United Kingdom
or elsewhere, whether obtained by the Master Issuer, the Issuer
Security Trustee or otherwise, whether or not any of the aforesaid
or any engagement letter or other document entered into by the
Issuer Security Trustee and the relevant person in connection
therewith contains any monetary or other limit on the liability of
the relevant person and the Issuer Security Trustee shall not be
responsible for any loss occasioned by so acting or relying on. Any
such opinion, advice, certificate or information may be sent or
obtained by letter, facsimile reproduction or in any other form and
the Issuer Security Trustee shall not be liable for acting in good
faith on any opinion, advice, certificate or information purporting
to be so conveyed although the same shall contain some error or
shall not be authentic provided that such error or lack of
authenticity is not manifest.
(b) Except in the event of wilful default or manifest error, the Issuer
Security Trustee may call for and shall be entitled to rely upon a
certificate, reasonably believed by it to be genuine, of the Master
Issuer or any other person in respect of every matter and
circumstance for which a certificate is expressly provided for under
this Deed, the Issuer Conditions or any other Issuer Transaction
Document and to call for and rely upon a certificate of the Agent
Bank, any Paying Agent, Registrar, Transfer Agent, any Reference
Bank or any other person reasonably believed by it to be genuine as
to any other fact or matter prima facie within the knowledge of such
Agent Bank, Paying Agent, Registrar, Transfer Agent, Reference Bank
or such other person as sufficient evidence thereof and the Issuer
Security Trustee shall not be bound in any such case to call for
further evidence or be responsible for any loss, liability,
30
costs, damages, expenses or inconvenience that may be caused by it
failing to do so.
(c) The Issuer Security Trustee shall be entitled to act on any
directions provided in accordance with Clause 16.13 (Issuer Security
Trustee to act on directions) without further enquiry and to assume
that any such directions are given in accordance with the provisions
of this Deed and the Issuer Security Trustee shall not be liable to
any person for any action taken or omitted under or in connection
with this Deed in accordance with any such directions. The Issuer
Security Trustee shall be entitled to act upon any notice, request
or other communication of any party to this Deed for the purposes of
this Deed or any of the Issuer Transaction Documents if such notice,
request or other communication purports to be signed or sent by or
on behalf of any authorised signatory of such party.
16.3 Powers and Duties:
(a) The Issuer Security Trustee shall not have any responsibility for or
have any duty to make any investigation in respect of or in any way
be liable whatsoever for the nature, status, creditworthiness or
solvency of the Master Issuer. Each Issuer Secured Creditor and each
other Issuer Secured Creditor shall be solely responsible for making
its own independent appraisal of and investigation into the
financial condition, creditworthiness, affairs, status and nature of
the Master Issuer and the Issuer Security Trustee shall not at any
time have any responsibility for the same and each Issuer Secured
Creditor and other Issuer Secured Creditors shall not rely on the
Issuer Security Trustee in respect thereof.
(b) The Issuer Security Trustee shall not be responsible for the
execution, legality, effectiveness, adequacy, genuineness, validity
or enforceability or admissibility in evidence of any Issuer
Transaction Document or any other document entered into in
connection therewith or any security thereby constituted or
purported to be constituted thereby nor shall it be responsible or
liable to any person because of any invalidity of any provision of
such documents or the unenforceability thereof, whether arising from
statute, law or decision of any court.
(c) The Issuer Security Trustee shall not be responsible for the scope
or accuracy of any recitals, statements, warranty, representation or
covenant of any party (other than the Issuer Security Trustee)
contained herein or in any other Issuer Transaction Document or any
other document entered into in connection therewith and shall assume
the accuracy and correctness thereof.
(d) The Issuer Security Trustee may accept without enquiry, requisition
or objection such title as the Master Issuer may have to the Issuer
Charged Property or as Funding 2 may have to the Funding 2 Charged
Property or any part thereof from time to time and shall not be
required to investigate or make any enquiry into or be liable for
any defect in the title of the Master Issuer to the Issuer Charged
Property or of Funding 2 to the Funding 2 Charged Property or any
part thereof from time to time whether or not any defect was
31
known to the Issuer Security Trustee or might have been discovered
upon examination, inquiry or investigation and whether or not
capable of remedy.
(e) The Issuer Security Trustee shall not be bound to give notice to any
person of the execution of this Deed, nor shall it have any duty to
make any investigation in respect of or in any way be liable
whatsoever for the registration, filing, protection or perfection of
the Issuer Security or the priority of the Issuer Security created
thereby and shall not be liable for any failure, omission or defect
in perfecting, protecting, procuring the registration of or further
assuring the security created or purported to be created thereby.
(f) The Issuer Security Trustee shall not have any duty to make any
investigation in respect of or in any way be liable whatsoever for
the failure to call for delivery of documents of title to or require
any transfers, legal mortgages, charges or other further assurances
in relation to any of the assets the subject matter of any of this
Deed or any other document.
(g) The Issuer Security Trustee shall be under no obligation to monitor
or supervise and shall not have any duty to make any investigation
in respect of or in any way be liable whatsoever for the performance
or observance by the Master Issuer or any other person of the
provisions of this Deed or any other Issuer Transaction Document and
shall be entitled to assume that each person is properly performing
and complying with its obligations.
(h) The Issuer Security Trustee shall not have any responsibility for or
have any duty to make any investigation in respect of or in any way
be liable whatsoever for the existence, accuracy or sufficiency of
any legal or other opinions, searches, reports, certificates,
valuations or investigations delivered or obtained or required to be
delivered or obtained at any time in connection with the Issuer
Charged Property or any Issuer Transaction Document.
(i) The Issuer Security Trustee shall have no responsibility whatsoever
to any Issuer Secured Creditor as regards any deficiency which might
arise because the Issuer Security Trustee is subject to any Tax in
respect of the Issuer Charged Property or any part thereof or any
income therefrom or any proceeds thereof or is required by law to
make any withholding or deduction from any payment to any Issuer
Secured Creditor.
(j) The Issuer Security Trustee will not be responsible or liable for
any inadequacy or unfitness of any Issuer Charged Property as
security or any decline in value of any loss realised upon any
disposition of the Issuer Charged Property.
(k) The Issuer Security Trustee shall not be responsible for, nor shall
it have any liability with respect to, any loss or theft of the
Issuer Charged Property.
(l) The Issuer Security Trustee shall not be liable or responsible for
any loss, cost, damage, expense or inconvenience which may result
from anything done or omitted to be done by it under this Deed or
under any of the other Issuer Transaction Documents save where the
same arises as a result of the Issuer Security Trustee's fraud,
wilful default or negligence.
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(m) The Issuer Security Trustee may appoint and pay any person to act as
a custodian or nominee on any terms in relation to such assets of
the trust as the Issuer Security Trustee may determine, including
for the purpose of depositing with a custodian this Deed or any
Issuer Transaction Document and the Issuer Security Trustee shall
not be responsible for any loss, liability, expense, demand, cost,
claim or proceedings incurred by reason of the misconduct, omission
or default on the part of any person appointed by it hereunder or be
bound to supervise the proceedings or acts of any such person.
(n) The Issuer Security Trustee shall (save as expressly otherwise
provided in this Deed or in any other Issuer Transaction Document)
as regards all rights, powers, authorities and discretions vested in
it by this Deed or any other Issuer Transaction Document, or by
operation of law, have absolute and uncontrolled discretion as to
the exercise or non-exercise thereof.
(o) The Issuer Security Trustee as between itself and the Issuer Secured
Creditors or any of them shall have full power to determine all
questions and doubts arising in relation to any of the provisions of
this Deed and/or any other Issuer Transaction Document and every
such determination, whether made upon a question actually raised or
implied in the acts or proceedings of the Issuer Security Trustee,
shall be conclusive and shall bind the Issuer Security Trustee and
the Issuer Secured Creditors.
(p) In connection with the exercise by it of any of its trusts, powers,
authorities and discretions under this Deed (including without
limitation any power to authorise any amendment or to waive any
breach or to make any determination) the Issuer Security Trustee
shall always have regard to all the Noteholders, provided that:
(i) where it is required to have regard to the interests of the
Noteholders, it shall have regard to the interests of the
Noteholders as a class and, in particular but without prejudice
to the generality of the foregoing, shall not have regard to,
or be in any way liable for, the consequences of any exercise
thereof for any individual Noteholder resulting from its being
domiciled or resident or otherwise connected with or subject to
the jurisdiction of, any particular territory or any political
sub-division thereof and the Issuer Security Trustee shall not
be entitled to require, nor shall any Noteholder be entitled to
claim, from the Master Issuer, the Issuer Security Trustee or
any other person any indemnification or payment in respect of
any tax consequence of any such exercise upon individual
Noteholders;
(ii) if in its sole opinion, there may be a conflict as among
Noteholders, it will have regards to the interests of the Class
of Noteholders with the highest-ranking Issuer Notes only. If
there is a conflict between the interests of the Class A
Noteholders of one Series and the Class A Noteholders of
another Series or Group of Series, or conflict between the
interests of the Class B Noteholders of one Series and the
Class B Noteholders of another Series or Group of Series, or
conflict between the interests of the Class M Noteholders of
one Series and the Class M Noteholders of another Series or
Group of Series, or conflict between
33
the interests of the Class C Noteholders of one Series and the
Class C Noteholders of another Series or Group of Series, or
conflict between the interests of the Class D Noteholders of
one Series and the Class D Noteholders of another Series or
Group of Series, then a resolution directing it to take any
action shall be deemed to have been duly passed only if passed
at separate meetings of the holders of each Series or Group of
Series of the Class A Notes, or as applicable, each Series or
Group of Series of the Class B Notes, each Series or Group of
Series of the Class M Notes, each Series or Group of Series of
the Class C Notes or each Series or Group of Series of the
Class D Notes subject to the conflict. In all cases, the Issuer
Security Trustee will only be obliged to act if it is
indemnified to its satisfaction.
(iii) at any time after the redemption in full of the Issuer Notes,
it shall have regard to the interest of the Issuer Secured
Creditor which ranks next highest under the Issuer
Post-Enforcement Priority of Payments;
(iv) it shall not have regard to, or be in any way liable for, the
consequences of any exercise thereof for any other person.
(q) The Issuer Security Trustee may determine whether or not a default
in the performance by the Master Issuer of any obligation under the
provisions of this Deed or any other Issuer Transaction Document or
a default in the performance by Funding 2 of any obligation under
the Funding 2 Intercompany Loan Agreement is capable of remedy
and/or whether the same is materially prejudicial to the interests
of the Issuer Secured Creditors or any of them and if the Issuer
Security Trustee shall certify that any such default is, in its
opinion, not capable of remedy and/or materially prejudicial to the
interests of the Issuer Secured Creditors or any of them, such
certificate shall be conclusive and binding upon the Master Issuer
and the Issuer Secured Creditors.
(r) The Issuer Security Trustee may, in the conduct of its trust
business, instead of acting personally, employ and pay an agent on
any terms, whether or not a lawyer or other professional person, to
transact or conduct, or concur in transacting or conducting, any
business and to do or concur in doing all acts required to be done
by the Issuer Security Trustee (including the receipt and payment of
monies).
(s) In relation to any asset held by the Issuer Security Trustee under
this Deed, the Issuer Security Trustee may appoint any person to act
as its nominee on any terms.
(t) Any trustee of this Deed being a lawyer, accountant, broker or other
person engaged in any profession or business shall be entitled to
charge and be paid all usual professional and other charges for
business transacted and acts done by him or his firm in connection
with the trusts of this Deed and the other Issuer Transaction
Documents and also his charges in addition to disbursements for all
other work and business done and all time spent by him or his firm
in connection with matters arising in connection with this Deed and
the other Issuer Transaction Documents, including matters which
might or
34
should have been attended to in person by a trustee not being a
banker, lawyer, broker or other professional person.
(u) The Issuer Security Trustee may, in the execution of all or any of
the trusts, powers, authorities and discretions vested in it by this
Deed or any of the other Issuer Transaction Documents, act by
responsible officers or a responsible officer for the time being of
the Issuer Security Trustee. The Issuer Security Trustee may also,
whenever it thinks expedient in the interests of the Issuer Secured
Creditors, whether by power of attorney or otherwise, delegate to
any person or persons all or any of the trusts, rights, powers,
duties, authorities and discretions vested in it by this Deed or any
of the other Issuer Transaction Documents. Any such delegation may
be made upon such terms and subject to such conditions and subject
to such regulations (including power to sub-delegate) as the Issuer
Security Trustee may think fit in the interests of the Issuer
Secured Creditors. The Issuer Security Trustee shall give prompt
notice to the Master Issuer of the appointment of any delegate as
aforesaid and shall procure that any delegate shall also give prompt
notice of the appointment of any sub-delegate to the Master Issuer.
(v) If the Issuer Security Trustee exercises reasonable care in
selecting any custodian, agent, delegate, nominee or any other
person appointed under this Clause 16.3 (Powers and Duties) (each,
an "Appointee") it will not have any obligation to supervise such
Appointee or be responsible for any loss, liability, costs, claim,
proceedings or expenses incurred by reason of such Appointee's
misconduct, omission or default or the misconduct, omission or
default of any substitute lawfully appointed by such Appointee.
(w) Where it is necessary or desirable for any purpose in connection
with this Deed to convert any sum from one currency to another it
shall (unless otherwise provided by this Deed or required by law) be
converted at such rate or rates in accordance with such method and
as at such date for the determination of such rate of exchange, as
may be specified by the Issuer Security Trustee in its absolute
discretion but having regard to rates of exchange if available and
the Issuer Security Trustee shall not be liable for any loss
occasioned by the said conversion under this paragraph (w) and any
rate mentioned and date so specified shall be binding on the Issuer
Secured Creditors.
(x) Any consent given by the Issuer Security Trustee for the purposes of
this Deed or any of the other Issuer Transaction Documents may be
given on such terms and subject to such conditions (if any) as the
Issuer Security Trustee thinks fit and may be given retrospectively.
(y) The Issuer Security Trustee shall not be liable for any error of
judgment made in good faith by any officer or employee of the Issuer
Security Trustee assigned by the Issuer Security Trustee to
administer its corporate trust matters unless the Issuer Security
Trustee was negligent in ascertaining the pertinent facts.
(z) The Issuer Security Trustee shall not (unless required by law or
ordered to do so by a court of competent jurisdiction) be required
to disclose to any Issuer
35
Secured Creditor or any other person any information made available
to the Issuer Security Trustee by the Master Issuer or any other
person in connection with the trusts of this Deed or any other
Issuer Transaction Documents and no Issuer Secured Creditor or any
other person shall be entitled to take any action to obtain from the
Issuer Security Trustee any such information. The Issuer Security
Trustee shall not be responsible for exercising the rights of any of
the parties under the Issuer Transaction Documents or considering
the basis upon which the approvals or consents are granted by any of
the parties under the Issuer Transaction Documents.
(aa) Notwithstanding anything else in this Deed, the Issuer Notes or any
other Issuer Transaction Document, the Issuer Security Trustee may
refrain from doing anything which would or might in its opinion be
contrary to any law of any jurisdiction or any directive or
regulation of any governmental agency or which would or might
otherwise render it liable to any person and may do anything which
is, in its opinion, necessary to comply with any such law, directive
or regulation.
(bb) Without prejudice to the right of the Issuer Security Trustee to
require and/or accept any other evidence, the Issuer Security
Trustee may accept as conclusive evidence of any fact or matter in
relation to the Master Issuer or required to be certified by the
Master Issuer under the Issuer Conditions, a certificate signed by
two directors of the Master Issuer and the Issuer Security Trustee
shall not be bound in any such case to call for further evidence or
be responsible for any liability that may be occasioned by it or any
other person acting on such certificate.
(cc) If a Note Event of Default occurs and is continuing and if it is
known to an Authorised Officer of the Issuer Security Trustee, the
Issuer Security Trustee shall mail to each Issuer Secured Creditor
notice of such Note Event of Default within 90 days after it occurs.
(dd) [The Issuer Security Trustee has no responsibility to verify or
monitor the contents of, or (if applicable) to check any
calculations contained in, any reports, information, documents,
Officers' Certificates and Opinions of Counsel delivered to the
Issuer Security Trustee in accordance with paragraphs (u) (United
States Reporting Requirements), (ee) (Information Regarding Issuer
Secured Creditors) or (ff) (Officers' Certificates and Opinions of
Counsel; Statements to be Contained Therein) of Clause 5 (Covenants
by Issuer) or Clause 16 (Certificates and Opinions), and is under no
obligation to inform Issuer Secured Creditors of the contents of any
such reports, information, documents, Officers' Certificates and
Opinions of Counsel, other than allowing Issuer Secured Creditors
upon reasonable notice, to inspect such reports, information,
documents, Officers' Certificates and Opinions of Counsel.]
(ee) The powers conferred by this Deed upon the Issuer Security Trustee
or any Receiver shall be in addition to and not in substitution for
any powers which may from time to time be conferred on the Issuer
Security Trustee or any such Receiver by statute or under common
law.
36
(ff) The Issuer Security Trustee has no duties or responsibilities except
those expressly set out in this Deed or in the other Issuer
Transaction Documents.
(gg) Without prejudice to the provisions of any Issuer Transaction
Documents relating to insurance, the Issuer Security Trustee shall
not be under any obligation to insure any of the Issuer Charged
Property or the Funding 2 Charged Property or any deeds or documents
of title or other evidence in respect of the Issuer Charged Property
or the Funding 2 Charged Property or to require any other person to
maintain any such insurance or monitor the adequacy of any such
insurance and shall not be responsible for any liability which may
be suffered by any person as a result of the lack of or inadequacy
of any such insurance.
16.4 No Financial Liability: Notwithstanding any other provision of this Deed
or of any other Issuer Transaction Document, nothing shall require the
Issuer Security Trustee to risk its own funds or otherwise incur any
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers or otherwise in connection with
this Deed or any other Issuer Transaction Document (including, without
limitation, forming any opinion or employing any legal, financial or
other adviser), if it shall believe that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it.
The Issuer Security Trustee shall not be responsible for exercising the
rights of any of the parties under the Issuer Transaction Documents or
considering the basis upon which the approvals or consents are granted by
any of the parties under the Issuer Transaction Documents.
16.5 Ascertaining Default: The Issuer Security Trustee shall not be
responsible or liable for:
(a) exercising any rights or powers which are assigned to it by any
party to the Issuer Transaction Documents, including, without
limitation, any servicing, administration and management functions
in relation to the Mortgage Loans and shall not be liable to any
person for the exercise or non-exercise of any such rights and
powers;
(b) ascertaining whether a default has occurred under the terms of any
of the Issuer Transaction Documents and, save where otherwise
specifically provided in the Issuer Transaction Documents, nor is
the Issuer Security Trustee responsible for taking any action in
connection with any such default or alleged default;
16.6 Rating of Issuer Notes: The Issuer Security Trustee shall have no
responsibility for the maintenance of any rating of the Issuer Notes by
the Rating Agencies or any other credit-rating agency or any other
person.
16.7 Delivery of Certificates: The Issuer Security Trustee shall have no
liability whatsoever for any loss, cost damages or expenses directly or
indirectly suffered or incurred by the Master Issuer, any Issuer Secured
Creditor or any other person as a result of the delivery by the Issuer
Security Trustee of a certificate, or the omission by it to deliver a
certificate, to the Master Issuer as to material prejudice, on the basis
of an opinion formed by it in good faith.
37
16.8 Assumption of No Default: The Issuer Security Trustee shall not be bound
to ascertain whether any Note Event of Default or Potential Note Event of
Default has happened and, until it shall have actual knowledge or express
notice to the contrary, the Issuer Security Trustee shall be entitled to
assume that no such Note Event of Default or Potential Note Event of
Default has happened and that the Master Issuer is observing and
performing all the obligations on its part under the Issuer Notes and
this Deed and no event has happened as a consequence of which any Issuer
Notes may become repayable.
16.9 Assumption of no Intercompany Loan Default: The Issuer Security Trustee
shall not be bound to ascertain whether any Funding 2 Intercompany Loan
Event of Default or Potential Funding 2 Intercompany Loan Event of
Default has happened and, until it shall have actual knowledge or express
notice to the contrary, the Issuer Security Trustee shall be entitled to
assume that no such Funding 2 Intercompany Loan Event of Default or
Potential Funding 2 Intercompany Loan Event of Default has happened and
that Funding 2 is observing and performing all the obligations on its
part;
16.10 Commercial Transactions: The Issuer Security Trustee shall not, and no
director, officer or employee of any corporation being an Issuer Security
Trustee hereof shall by reason of the fiduciary position of the Issuer
Security Trustee be in any way precluded from making any commercial
contracts or entering into any commercial transactions with any party to
the Issuer Transaction Documents, whether directly or through any
subsidiary or associated company, or from accepting the trusteeship of
any other debenture stock, debentures or securities of any party to the
Issuer Transaction Documents, and without prejudice to the generality of
these provisions, it is expressly declared that such contracts and
transactions include any contract or transaction in relation to the
placing, underwriting, purchasing, subscribing for or dealing with or
lending monies upon or making payments in respect of or any stock,
shares, debenture stock, debentures or other securities of any party to
the Issuer Transaction Documents or any contract of banking or insurance
of any party to the Issuer Transaction Documents and neither the Issuer
Security Trustee nor any such director, officer or employee shall be
accountable to any Issuer Secured Creditor or to any party to the Issuer
Transaction Documents for any profit, fees, commissions, interest,
discounts or share of brokerage earned, arising or resulting from any
such contracts or transactions, and the Issuer Security Trustee and any
such director, officer or employee shall also be at liberty to retain the
same without accounting therefor.
16.11 Disapplication: Section 1 of the Trustee Act 2000 shall not apply to the
duties of the Issuer Security Trustee in relation to the trusts
constituted by this Deed. Where there are any inconsistencies between the
Trustee Acts and the provisions of this Deed, the provisions of this Deed
shall, to the extent allowed by law, prevail and, in the case of any such
inconsistency with the Trustee ▇▇▇ ▇▇▇▇, the provisions of this Deed
shall constitute a restriction or exclusion for the purposes of that Act.
16.12 Issuer Security Trustee Liable for Negligence etc.: Notwithstanding any
other provision of this Deed, none of the provisions of this Deed shall,
in any case in which the Issuer Security Trustee has failed to show the
degree of care and diligence required of it as trustee under this Deed
having regard to the provisions of this Deed conferring on the Issuer
Security Trustee any powers, authorities or discretions, relieve the
Issuer Security Trustee from or indemnify the Issuer Security Trustee
against any liabilities which by virtue of any rule of law would
otherwise attach to it
38
in respect of any negligence, default, breach of duty or breach of trust
of which it may be guilty in relation to its duties under this Deed.
16.13 Issuer Security Trustee to act on directions: Notwithstanding any other
provision in any other Issuer Transaction Document, each of the Issuer
Secured Creditors and the Master Issuer acknowledges that when exercising
its opinion and/or when exercising the rights, benefits, power, trusts,
authorities, directions and obligations expressed to be granted by this
Deed, the other Issuer Transaction Documents or by operation of law, the
Issuer Security Trustee shall, for so long as there are any Issuer Notes
outstanding, have regard to the interests of or directions received from
the Note Trustee and shall not be responsible for any loss, costs,
damages, expenses or inconveniences that may result from the exercise or
non-exercise thereof. At any time when all Issuer Notes have been repaid
in full, the Issuer Security Trustee shall no longer be required to act
at the request or direction of the Note Trustee but instead shall act at
the request or direction of the Issuer Secured Creditor which ranks next
highest in the Issuer Post-Enforcement Priority of Payments.
17. Appointment, Removal and Retirement:
17.1 Power of Master Issuer: Subject to the provisions of this Clause 17
(Appointment, Removal and Retirement of Issuer Security Trustee), the
power of appointing a new Issuer Security Trustee in place of an existing
Issuer Security Trustee shall be vested in the Master Issuer but such
appointment or removal must (i) be approved by (save to the extent
otherwise provided in the Conditions) an Extraordinary Resolution of the
Class A Noteholders, the Class B Noteholders, the Class M Noteholders,
the Class C Noteholders and the Class D Noteholders then outstanding, and
(ii) be approved in writing by each other Issuer Secured Creditor (such
approval not be unreasonably withheld or delayed). A trust corporation
may be appointed sole trustee hereof but subject thereto there shall be
at least two trustees hereof, one at least of which shall be a trust
corporation. Any appointment of a new Issuer Security Trustee and any
retirement of an existing Issuer Security Trustee hereof shall as soon as
practicable thereafter be notified by the Master Issuer to the Issuer
Secured Creditors. Any new Issuer Security Trustee must meet the
requirements set out in Clause 17.5 (Retirement or Removal Not
Effective).
17.2 Powers of Issuer Security Trustee to appoint: Notwithstanding the
provisions of Clause 17.1 (Power of Master Issuer), the Issuer Security
Trustee may (as attorney for the Master Issuer) upon giving prior notice
to the Master Issuer but without the consent of the Master Issuer or the
Issuer Secured Creditors appoint any person established or resident in
any jurisdiction (whether a trust corporation or not) to act either as a
separate trustee or as a co-trustee jointly with the Issuer Security
Trustee:
(a) if the Issuer Security Trustee considers such appointment to be in
the interests of the Issuer Secured Creditors (or any of them); or
(b) for the purposes of conforming to any legal requirements,
restrictions or Issuer Conditions in any jurisdiction in which any
particular act or acts is or are to be performed; or
(c) for the purposes of obtaining a judgment in any jurisdiction or the
enforcement in any jurisdiction of either a judgment already
obtained or any of the
39
provisions of these presents or any of the other Issuer Transaction
Documents against the Master Issuer or any other party thereto.
The Master Issuer hereby irrevocably appoints the Issuer Security Trustee
to be its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the
provisions of these presents and any other Issuer Transaction Document to
which the Issuer Security Trustee is a party) have such trusts, powers,
authorities and discretions (not exceeding those conferred on the Issuer
Security Trustee by these presents or any of the other Issuer Transaction
Documents to which the Issuer Security Trustee is a party) and such
duties and obligations as shall be conferred or imposed on it by the
instrument of appointment. The Issuer Security Trustee shall have power
in like manner to remove any such person. Such proper remuneration as the
Issuer Security Trustee may pay to any such person, together with any
attributable costs, charges and expenses incurred by it in performing its
function as such separate trustee or co-trustee, shall for the purposes
of these presents be treated as costs, charges and expenses incurred by
the Issuer Security Trustee.
17.3 Multiple Trustees: Whenever there shall be more than two trustees hereof,
the majority of such trustees shall (provided such majority includes a
trust corporation) be competent to execute and exercise all the trusts,
powers, authorities and discretions vested by these presents and any of
the other Issuer Transaction Documents in the Issuer Security Trustee
generally.
17.4 Retirement or Removal of Issuer Security Trustee: Subject as provided in
Clause 17.5 (Retirement or Removal not Effective), any Issuer Security
Trustee for the time being of this Deed may retire at any time upon
giving not less than three months' prior notice in writing to the Master
Issuer without assigning any reason therefor and without being
responsible for any costs resulting from such retirement.
17.5 Retirement or Removal not Effective: The retirement or removal of any
Issuer Security Trustee shall not become effective unless there remains
at least one trustee hereof being a trust corporation in office upon such
retirement or removal. The Master Issuer covenants that, in the event of
a trustee (being a sole trustee or the only trust corporation) giving
notice or being removed under Clause 17.4 (Retirement or Removal of
Issuer Security Trustee) it shall use its best endeavours to procure a
new Issuer Security Trustee of these presents (being a trust corporation)
to be appointed as soon as reasonably practicable thereafter (for the
avoidance of doubt, on the same terms as these presents). If within 30
days of having given notice of its intention to retire, the Master Issuer
has failed to appoint a replacement Issuer Security Trustee, the outgoing
Issuer Security Trustee will be entitled to appoint its successor
provided that the Rating Agencies confirm that the then ratings of the
Issuer Notes shall not be either reduced, qualified or withdrawn as a
result of such appointment.
17.6 Funding 2 Security Trustee, Note Trustee and Issuer Security Trustee: If
the Issuer Security Trustee retires or is removed in accordance with the
provisions of this Clause 17 (Appointment, Removal and Retirement) then
the Funding 2 Security Trustee, each Note Trustee and each other Issuer
Security Trustee shall retire at the same time in accordance with the
provisions of the Funding 2 Deed of Charge, the applicable Issuer Trust
Deed and the applicable Issuer Deed of Charge. If the Funding 2 Security
Trustee retires or is removed in accordance with the provisions of the
Funding 2 Deed
40
of Charge, a Note Trustee retires or is removed in accordance with the
provisions of the applicable Issuer Trust Deed and/or another Issuer
Security Trustee retires or is removed in accordance with the provisions
of the applicable Issuer Deed of Charge, then the Issuer Security Trustee
shall retire at the same time in accordance with the provisions of this
Clause 17 (Appointment, Removal and Retirement). In each case the
successor Issuer Security Trustee, the Funding 2 Security Trustee, each
successor Note Trustee and each other successor Issuer Security Trustee
shall be the same person or persons.
18. Remuneration and Indemnification of Issuer Security Trustee:
18.1 Normal Remuneration: The Master Issuer shall (subject as hereinafter
provided) pay to the Issuer Security Trustee remuneration of such amount
as shall from time to time be agreed by the Master Issuer and the Issuer
Security Trustee. The rate of remuneration in force from time to time may
upon the final redemption of the whole of the Issuer Notes of any Series
be reduced by such amount as shall be agreed between the Master Issuer
and the Issuer Security Trustee, such reduced remuneration to be
calculated from such date as shall be agreed as aforesaid. Such
remuneration shall be payable in priority to payments to Noteholders and
other Issuer Secured Creditors on each Payment Date subject to and in
accordance with the relevant Issuer Priority of Payments. Such
remuneration shall accrue from day to day and be payable up to and
including the date when, all the Issuer Notes having become due for
redemption, the redemption monies and interest thereon to the date of
redemption have been paid to the Principal Paying Agent or, as the case
may be, the Issuer Security Trustee PROVIDED THAT if upon due
presentation of any Note Certificate or any cheque payment of the monies
due in respect thereof is improperly withheld or refused, remuneration
will commence again to accrue until payment to Noteholders is made.
18.2 Extra Remuneration: In the event of the occurrence of a Note Event of
Default or the Issuer Security Trustee considering it expedient or
necessary or being requested by the Master Issuer to undertake duties
which the Issuer Security Trustee and the Master Issuer agree to be of an
exceptional nature or otherwise outside the scope of the normal duties of
the Issuer Security Trustee under this Deed, the Master Issuer shall pay
to the Issuer Security Trustee such additional remuneration as shall be
agreed between them;
18.3 Failure to Agree: In the event of the Issuer Security Trustee and the
Master Issuer failing to agree:
(a) (in a case to which Clause 18.1 (Normal Remuneration) applies) upon
normal remuneration; or
(b) (in a case to which Clause 18.2 (Extra Remuneration) applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Issuer Security
Trustee under these presents, or upon such additional remuneration;
such matters shall be determined by an investment bank (acting as an
expert and not as an arbitrator) selected by the Issuer Security Trustee
and approved by the Master Issuer or, failing such approval, nominated
(on the application of the Issuer Security
41
Trustee) by the President for the time being of The Law Society of
England and Wales (the expenses involved in such nomination and the fees
of such investment bank being payable by the Master Issuer) and the
determination of any such investment bank shall be final and binding upon
the Issuer Security Trustee and the Master Issuer.
18.4 Expenses: In addition to the remuneration hereunder, the Master Issuer
shall on written request, pay all other costs, charges and expenses
(against production of invoices) which the Issuer Security Trustee may
properly incur in relation to:
(a) the negotiation, preparation and execution of, the exercise of its
powers and discretions and the performance of its duties under these
presents and any other Issuer Transaction Documents including, but
not limited to legal and travelling expenses; and
(b) any other action taken by or on behalf of the Issuer Security
Trustee to enforce the obligations of the Master Issuer under or
resolving any doubt in respect of these presents and/or any of the
other Issuer Transaction Documents.
18.5 Indemnity: The Master Issuer shall indemnify the Issuer Security Trustee
in respect of all proceedings, claims, demands, losses, costs, charges,
expenses and liabilities to which it (or any person appointed by it to
whom any trust, power, authority or discretion may be delegated by it in
the execution or purported execution of the trusts, powers, authorities
or discretions vested in it by or pursuant to these presents and any of
the other Issuer Transaction Documents) may be or become liable or which
may be properly incurred by it (or any such person as aforesaid) in the
execution or purported execution of any of its trusts, powers,
authorities and discretions hereunder or its functions under any such
appointment or in respect of any other matter or thing done or omitted in
any way relating to these presents and any of the other Issuer
Transaction Documents provided that it is expressly stated that Clause
16.12 (Issuer Security Trustee Liable for Negligence etc.) shall apply in
relation to these provisions.
18.6 Stamp Duties: The Master Issuer shall, pay all stamp duties and other
duties or taxes of a similar nature, including for the avoidance of doubt
any duty levied under the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ as amended and supplemented, (if
any) payable in the United Kingdom on or arising out of or in consequence
of:
(a) the execution and delivery of this Deed and any other Issuer
Transaction Document to which the Issuer Security Trustee is a
party; and
(b) any action in any jurisdiction taken by or on behalf of the Issuer
Security Trustee. If the Issuer Security Trustee (or any Noteholder
or Issuer Secured Creditor) where permitted under these presents or
the Issuer Trust Deed to do so) shall take any proceedings against
the Master Issuer in any other jurisdiction and if for the purpose
of any such proceedings, this Deed is taken into any such
jurisdiction and any stamp duties or other duties or taxes become
payable thereon in any such jurisdiction, the Master Issuer will pay
(or reimburse the person making payment of) such stamp duties or
other duties or taxes (including penalties).
42
18.7 VAT: The Master Issuer shall in addition pay to the Issuer Security
Trustee an amount equal to any value added tax or similar tax chargeable
in respect of its remuneration under this Deed.
18.8 Interest: Subject as provided in Clause 18.9 (Payment), all sums payable
by the Master Issuer under this Clause 18 (Remuneration and
Indemnification of Issuer Security Trustee) shall be payable on demand
or, in the case of any remuneration payable under Clause 18.1 (Normal
Remuneration) on the due date specified therein and shall carry interest
at the rate per annum, which is one per cent. per annum above the base
rate from time to time of the National Westminster Bank Plc from the date
on which they were paid, charged or incurred by the Issuer Security
Trustee or, in the case of remuneration, the due date for payment
thereof, to the date of actual payment, and in all other cases shall (if
not paid on the date specified in such demand or, if later, within three
days after such demand and, in either case, the Issuer Security Trustee
so requires) carry interest at such rate from the date specified in such
demand.
18.9 Payment: Notwithstanding the other provisions of this Deed, any amount
owing by the Master Issuer pursuant to this Clause 18 (Remuneration and
Indemnification of Issuer Security Trustee) shall only be payable by the
Master Issuer subject to and in accordance with the applicable Issuer
Priority of Payments which applies at such time.
18.10 Survival: Unless otherwise specifically stated in any discharge of this
Deed, the provisions of this Clause 18 (Remuneration and Indemnification
of Issuer Security Trustee) shall continue in full force and effect
notwithstanding such discharge.
19. Modification and Waiver
19.1 Modification: The Issuer Security Trustee may without the consent or
sanction of the Noteholders or any other Issuer Secured Creditor (other
than the Note Trustee (if it is a party to the relevant document)) at any
time and from time to time concur with any person in making any
modification to this Deed, the Issuer Notes, the Issuer Trust Deed or to
any of the other Issuer Transaction Documents which in the opinion of the
Issuer Security Trustee it may be proper to make PROVIDED THAT the Issuer
Security Trustee is of the opinion that such modification will not be
materially prejudicial to the interests of any Issuer Secured Creditors
or (ii) to this Deed, the Issuer Notes, the Issuer Trust Deed or any of
the other Issuer Transaction Documents if in the opinion of the Issuer
Security Trustee such modification is of a formal, minor or technical
nature or to correct an error established as such to the satisfaction of
the Issuer Security Trustee. For the purposes of this Clause 17.1
(Modification), a proposed modification will not materially harm the
interest of any Issuer Secured Creditors solely as a result of any
Funding 2 Issuer executing a Deed of Accession pursuant to Clause 3.11
(New Intercompany Loan) of the Funding 2 Deed of Charge or the execution
of a Deed of Accession pursuant to Clause 3.12 (Bridging Arrangements) of
the Funding 2 Deed of Charge or the execution of a Deed of Accession. Any
such modification may be made on such terms and subject to such
conditions (if any) as the Issuer Security Trustee may determine, shall
be binding upon the Master Issuer and the Issuer Secured Creditors and,
unless the Issuer Security Trustee agrees otherwise, shall be notified by
the Master Issuer to the Noteholders in accordance with the Conditions
and to the other Issuer Secured Creditors as soon as practicable
thereafter. So long as any of the Issuer Notes are
43
rated by the Rating Agencies, the Master Issuer shall notify the Rating
Agencies in writing as soon as reasonably practicable thereafter of any
modification to the provisions of this Deed, the Issuer Notes, the Issuer
Trust Deed or any of the other Issuer Transaction Documents.[Each of the
Issuer Secured Creditors agrees from time to time to do and perform such
other and further acts and execute and deliver any and all such other
instruments as may be required to carry out and effect the intent and
purpose of this Clause 19.1 (Modification and Waiver)).]
19.2 Waiver: Subject as expressly provided otherwise in the Issuer Notes or in
any other Transaction Document, the Issuer Security Trustee may from time
to time and at any time without the consent or sanction of the
Noteholders or any other Issuer Secured Creditor and without prejudice to
its rights in respect of any subsequent breach, but only if and in so far
as in its opinion the interests of the Issuer Secured Creditors shall not
be materially prejudiced thereby waive or authorise any breach or
proposed breach by the Master Issuer or any other party thereto of any of
the covenants or provisions contained in this Deed or in any of the other
Transaction Documents PROVIDED ALWAYS THAT the Issuer Security Trustee
shall not exercise any powers conferred on it by this Clause 17.2
(Waiver) in contravention of any express direction or request given in
accordance with Clause 16.9 (Assumption of no Intercompany Loan Default)
(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 Issuer Security Trustee may determine;
(b) shall be binding on the Noteholders and the other Issuer Secured
Creditors, if, but only if, the Issuer Security Trustee shall so
require; and
(c) shall be notified by the Master Issuer to the Noteholders in
accordance with the Conditions and to the other Issuer Secured
Creditors as soon as practicable thereafter.
20. Miscellaneous Provisions
20.1 Evidence of Indebtedness: In any action, proceedings or claim relating to
this Deed or the Issuer Security, a statement as to any amount due to any
Issuer Secured Creditor or of the Issuer Secured Obligations or any part
thereof or a statement of any amounts which have been notified to the
Issuer Security Trustee as being amounts due to any Issuer Secured
Creditor which is certified as being correct by an officer of the Issuer
Security Trustee or an officer of the relevant Issuer Secured Creditor
shall, save in the case of manifest error, be conclusive evidence that
such amount is in fact due and payable.
20.2 Liability: All the liabilities and obligations of the Master Issuer under
or by virtue of this Deed shall not be impaired by:
(a) any failure of this Deed to be legal, valid, binding and enforceable
as regards the Master Issuer whether as a result of a lack of
corporate powers or of directors' authority, defective execution or
for any other reason whatsoever;
44
(b) any giving of time, forbearance, indulgence or waiver as regards the
Master Issuer;
(c) a discharge or release of the Master Issuer; or
(d) any other matter or event whatsoever whether similar to the
foregoing or not which might have the effect of impairing all or any
of its liabilities or obligations except proper and valid payment or
discharge of all Issuer Secured Obligations and amounts whatsoever
which this Deed provides are to be paid by the Master Issuer or an
absolute discharge or release of the Master Issuer signed by the
Issuer Secured Creditors and the Issuer Security Trustee.
20.3 Issuer Secured Creditors: Each Issuer Secured Creditor shall be bound by
the provisions of this Deed as if it contained covenants by each Issuer
Secured Creditor in favour of the Issuer Security Trustee and every other
Issuer Secured Creditor to observe and be bound by all the provisions of
this Deed expressed to apply to the Issuer Secured Creditors.
21. Rights cumulative
The respective rights of the Note Trustee, the Issuer Security Trustee,
the Issuer Secured Creditors and any Receiver to this Deed are cumulative
and may be exercised as often as each considers appropriate and are in
addition to their respective rights under the general law. No failure on
the part of the Note Trustee, the Issuer Security Trustee, the Issuer
Secured Creditors or any Receiver to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right preclude any other
or further exercise thereof or the exercise of any other right. The
remedies in this Deed are cumulative and not exclusive of any remedies
provided by law.
22. Assignment
None of the Issuer Secured Creditors may assign, encumber or transfer all
or any part of its rights or benefits and/or transfer its obligations
under this Deed without the prior written consent of the Issuer Security
Trustee.
23. Non Petition Covenant; Corporate Obligations
23.1 [Non Petition: Each of the parties hereto hereby agrees that it shall not
institute against the Master Issuer any winding-up, administration,
insolvency or similar proceedings for so long as any sum is outstanding
under Issuer Notes or for two years plus one day since the last day on
which any such sum was outstanding provided that the Issuer Security
Trustee may prove or lodge a claim in the event of a liquidation
initiated by any other person.]
23.2 Corporate Obligations: To the extent permitted by law, no recourse under
any obligation, covenant, or agreement of any person contained in this
Deed shall be had against any shareholder, officer or director of such
person as such, by the enforcement of any assessment or by any legal
proceeding, by virtue of any statute or otherwise; it being expressly
agreed and understood that this Deed is a corporate obligation of each
person expressed to be a party hereto and no personal liability shall
attach to or be
45
incurred by the shareholders, officers, agents or directors of such
person as such, or any of them, under or by reason of any of the
obligations, covenants or agreements of such person contained in this
Deed, or implied therefrom, and that any and all personal liability for
breaches by such person of any of such obligations, covenants or
agreements, either under any applicable law or by statute or
constitution, of every such shareholder, officer, agent or director is
hereby expressly waived by each person expressed to be a party hereto as
a condition of and consideration for the execution of this Deed.
24. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Deed to any of the parties hereto shall be sufficiently
served if sent by prepaid first class post, by hand or by facsimile
transmission and shall be deemed to be given (in the case of facsimile
transmission) when despatched or (where delivered by hand) on the day of
delivery if delivered before 17.00 hours on a London Business Day or on
the next London Business Day if delivered thereafter or (in the case of
first class post) when it would be received in the ordinary course of the
post and shall be sent:
(a) in the case of the Master Issuer, to Granite Master Issuer plc,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number 020
7606 0643) for the attention of the Company Secretary with a copy to
Northern Rock plc, Northern ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇ (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, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, attention Corporate Trust
(Global Structured Finance) (facsimile number 020 7964 6399);
(c) in the case of the Issuer Security Trustee, to the Bank of New York,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, attention Corporate
Trust (Global Structured Finance) (facsimile number 020 7964 6399);
(d) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent or the Account Bank, to Citibank,
N.A., ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇;
(e) in the case of the Issuer Cash Manager to Northern Rock plc,
Northern ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(f) in the case of the U.S. Paying Agent, to Citibank, N.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, 14th Floor, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇,
▇.▇.▇. (facsimile number ▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of Agency
and Trust;
(g) in the case of the Corporate Services Provider, to Law Debenture
Corporate Services Limited, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ (facsimile number 020 7606 0643) for the attention of the
Company Secretary;
46
(h) in the case of Moody's, to ▇▇▇▇▇'▇ Investor Services, 1st Floor, ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number 020
7772 5400) for the attention of Head of Monitoring Group, Structured
Finance;
(i) in the case of S&P, to Standard & Poor's, 20 Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number 020 7176 3598) for the
attention of the Structured Finance Surveillance Group; and
(j) in the case of Fitch, to Fitch Ratings Limited, ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (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).
25. Third Party Rights
A person who is not a party to this Deed may not enforce any of its terms
under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇, but this shall
not affect any right or remedy of a third party which exists or is
available apart from that Act.
26. Execution in Counterparts; Severability
26.1 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.
26.2 Severability: Where any provision in or obligation under this Deed shall
be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations
under this Deed, or of such provision or obligation in any other
jurisdiction, shall not be affected or impaired thereby.
27. Governing Law and Jurisdiction; Appropriate Forum
27.1 Governing Law: This Deed is governed by, and shall be construed in
accordance with, English law.
27.2 Jurisdiction: Each of the parties hereto irrevocably agrees that the
courts of England shall have jurisdiction to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of
or in connection with this Deed and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
27.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and to
settle any disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
IN WITNESS of which this Deed has been executed by the parties hereto as a
deed which has been delivered on the date first appearing on page one.
47
EXECUTION PAGE
The Master Issuer
Executed by
GRANITE MASTER ISSUER PLC
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its for and on behalf of LDC
directors and by another of its directors/its Securitisation Director No. 1 Limited
secretary - Director
Name:___________________________________________
By:_____________________________________________
for and on behalf of LDC
Securitisation Director No. 2 Limited
- Director
Name:___________________________________________
The Note Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
The Issuer Security Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
48
The Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent, and the Account
Bank
Executed by
CITIBANK, N.A.
as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
The US Paying Agent
Executed by
CITIBANK, N.A.
as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duty Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
The Issuer Cash Manager
Executed by
NORTHERN ROCK PLC
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duty Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
Signature:_____________________________________
Witness
49
Full Name:__________________________________
Occupation: Solicitor
--------------------------------
Address: c/o Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
-------------------------
Wood
----
Woolgate Exchange
--------------------------------
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
--------------------------------
The Corporate Service Provider
Executed by
LAW DEBENTURE CORPORATE
SERVICES LIMITED By:_____________________________________________
as its deed as follows: Director
Signed for and on its behalf by one of its
directors and by another of its directors/its Name:___________________________________________
secretary
By:_____________________________________________
Director/Secretary
Name:___________________________________________
50
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [o] by Granite Master Issuer plc (registered
number 5250668) a private limited liability company incorporated under the
laws of England and Wales whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "Principal").
WHEREAS
(1) By virtue of a Deed (as amended, varied, supplemented or novated from
time to time the "Issuer Deed of Charge") dated [o] January 2005 between
Granite Master Issuer plc, The Bank of New York as Issuer Security
Trustee and others, provision was made for the execution by the Principal
of this Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where expressed
to the contrary) have the same meanings respectively as the words and
phrases in the Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably (within the meaning of Section 4 of the
Powers of Attorney Act 1971) and by way of security for the payment and
performance of the Issuer Secured Obligations and the covenants,
conditions, obligations and undertakings on the part of the Principal
contained in the Issuer Deed of Charge and the other Issuer Transaction
Documents to which the Principal is a party from time to time appoints
The Bank of New York and any other person or persons for the time being
the Issuer Security Trustee or Issuer Security Trustees of and under the
Issuer Deed of Charge (the "Attorney") and each and every person to whom
the Issuer Security Trustee shall from time to time have delegated the
exercise of the power of attorney conferred by this Power of Attorney
(each a "Delegate") and any receiver including any administrative
receiver and any manager (the "Receiver") and/or administrator (the
"Administrator") appointed from time to time by the Attorney or on its
behalf its true and lawful attorney for and in the Principal's name or
otherwise jointly and severally to sign, seal, execute, deliver, perfect
and do any assurance, act, matter or thing which the Attorney, Delegate,
Receiver or Administrator considers in each case to be necessary for the
protection or preservation of the Attorney's and the Issuer Secured
Creditors' interests and rights (as described in the Issuer Deed of
Charge) in and to the Issuer Charged Property or which ought to be done
by the Principal under the covenants, undertakings and provisions
contained in the Issuer Deed of Charge and the other Issuer Transaction
Documents to which the Principal is a party from time to time and
generally to in its name and on its behalf to exercise all or any of the
powers, authorities or discretions conferred by or pursuant to the Issuer
Deed of Charge on the Issuer Security Trustee and/or any Receiver whether
on or at any time after the security has become enforceable in accordance
with Clause 7.2 (Enforceable) of the Issuer Deed of Charge or in any
other circumstances where the Attorney has become entitled to take any of
the steps referred to in the Issuer Deed of Charge including (without
limitation) any or all of the following:
51
(a) to do every act or thing which the Attorney, Delegate, Receiver or
Administrator may deem to be necessary, proper or expedient for
getting in any of the Issuer Charged Property and/or fully and
effectively vesting, transferring or assigning the Issuer Charged
Property or any part thereof and/or the Principal's estate, right,
title, benefit and/or interest therein or thereto in or to the
Attorney and its successors in title or other person or persons
entitled to the benefit thereof or for carrying into effect any
other dealing with the Issuer Charged Property whatsoever permitted
under the Issuer Deed of Charge in the same manner and as fully and
effectively as the Principal could have done;
(b) the power by writing under its hand by an officer of the Attorney
(including every Receiver appointed under the Issuer Deed of Charge)
from time to time to appoint a substitute attorney (each a
"Substitute") who shall have power to act on behalf of the Principal
as if that Substitute shall have been originally appointed Attorney
by this Power of Attorney and/or to revoke any such appointment at
any time without assigning any reason therefor.
2. In favour of the Attorney, any Delegate, any Receiver and/or
Administrator and/or Substitute, or a person dealing with any of them and
the successors and assigns of such a person, all acts properly done and
documents executed or signed by the Attorney, a Delegate, a Receiver, an
Administrator or a Substitute in the purported exercise of any power
conferred by this Power of Attorney shall for all purposes be valid and
binding on the Principal and its successors and assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify the
Attorney and each Delegate, Receiver and/or Administrator and/or
Substitute appointed from time to time by the Attorney and their
respective estates (each an "Indemnified Party") against all actions,
proceedings, claims, costs, expenses and liabilities of every description
arising from the exercise, or the purported exercise, of any of the
powers conferred by this Power of Attorney, save where the same arises as
the result of the fraud, negligence or wilful default of the relevant
Indemnified Party or its officers or employees.
4. The provisions of Clause 3 (Issuer Security) of the Issuer Deed of Charge
shall continue in force after the revocation or termination, howsoever
arising, of this Power of Attorney.
5. The laws of England and Wales shall apply to this Power of Attorney and
the interpretation thereof and to all acts of the Attorney and each
Delegate, Receiver and/or Administrator and/or Substitute carried out or
purported to be carried out under the terms hereof.
6. The Principal hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorney or attorneys or any
Delegate, Receiver or Administrator or Substitute shall properly and
lawfully do or cause to be done in and concerning the Issuer Charged
Property.
IN WITNESS whereof this Power of Attorney has been executed as a deed by the
Principal the day and year first before written.
52
EXECUTED AS A DEED by )
GRANITE MASTER ISSUER PLC )
acting by: )
Director
Name:
Title:
Director/Secretary
Name:
Title:
53
SCHEDULE 2
ISSUER PRIORITY OF PAYMENTS
1. Priority of Payments for Issuer Available Revenue Receipts Prior to
Enforcement of the Issuer Security
Issuer Available Revenue Receipts will be applied, as applicable:
(a) on each Payment Date; or
(b) on each day when due in respect of amounts due to third parties
pursuant to paragraph (C) below,
in each case prior to the enforcement of the Issuer Security pursuant to
the Issuer Deed of Charge or until such time as there are no Issuer
Secured Obligations outstanding, in making such payments and provisions
in the following order of priority (in each case only if and to the
extent that payments or provisions of a higher priority have been made in
full) (the "Issuer Pre-Enforcement Revenue Priority of Payments"):
(A) first, in no order of priority among them but in proportion to the
respective amounts due, to pay amounts due to the Note Trustee and
the Issuer Security Trustee, together with interest and (to the
extent not already inclusive) VAT on those amounts, and to provide
for any amounts due or to become due during the following Interest
Period to the Note Trustee or the Issuer Security Trustee, as
applicable, under the Issuer Trust Deed, the Issuer Deed of Charge
or any other Transaction Document;
(B) second, in no order of priority among them but in proportion to the
respective amounts due, to pay amounts due to the Agent Bank, the
Paying Agents, the Transfer Agent and the Registrar together with
interest and (to the extent not already inclusive) VAT on those
amounts, and to provide for any costs, charges, liabilities and
expenses due or to become due during the following interest period
to the Agent Bank, the Paying Agents, the Transfer Agent and the
Registrar, under the Issuer Paying Agent and Agent Bank Agreement;
(C) third, to pay amounts due to any third party creditors of the Master
Issuer (other than those referred to later in this order of priority
of payments or in the Issuer Pre-Enforcement Principal Priority of
Payments), of which the Issuer Cash Manager has notice prior to the
relevant Payment Date, which amounts have been incurred without
breach by the Master Issuer of the Transaction Documents to which it
is a party and for which payment has not been provided for elsewhere
and to provide for any such amounts expected to become due and
payable during the following Interest Period by the Master Issuer
and to pay or discharge any liability of the Master Issuer for
corporation tax on any chargeable income or gain of the Master
Issuer;
(D) fourth, in no order or priority among them but in proportion to the
respective amounts due, to pay amounts due to the Issuer Cash
Manager under the Issuer Cash Management Agreement, the Corporate
Services Provider under the
54
Corporate Services Agreement and the Issuer Account Bank under the
Issuer Bank Account Agreement together with (to the extent not
already inclusive) VAT on those amounts, and to provide for any
amounts due, or to become due in the immediately succeeding Interest
Period, to the Issuer Cash Manager under the Issuer Cash Management
Agreement, to the Corporate Services Provider under the Corporate
Services Agreement and to the Issuer Account Bank under the Issuer
Bank Account Agreement;
(E) fifth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each AAA Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer Swap
Provider(s) (if any) in respect of the related Series of Class
A Notes (including any termination payment but excluding any
Issuer Swap Excluded Termination Amount) in accordance with the
terms of the relevant Issuer Swap Agreement(s);
(ii) to pay interest due and payable on the related Series of Class
A Notes;
(F) sixth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each AA Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer Swap
Provider(s) (if any) in respect of the related Series of Class
B Notes (including any termination payment but excluding any
Issuer Swap Excluded Termination Amount) in accordance with the
terms of the relevant Issuer Swap Agreement(s);
(ii) to pay interest due and payable on the related Series of Class
B Notes;
(G) seventh, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each A Loan Tranche (and, in
respect of (ii) below, the amounts, excluding principal, received
from the Issuer Swap Provider(s) under the Issuer Swap Agreement(s)
in respect of the related Series and Class of Notes):
(i) to pay the amounts due and payable to the relevant Issuer Swap
Provider(s) (if any) in respect of the related Series of Class
M Notes (including any termination payment but excluding any
Issuer Swap Excluded Termination Amount) in accordance with the
terms of the relevant Issuer Swap Agreement(s);
(ii) to pay interest due and payable on the related Series of Class
M Notes;
55
(H) eighth, from amounts (excluding principal) received by the Master
Issuer from Funding 2 in respect of each BBB Loan Tranche (and, in
respect of (ii) below, the amounts, excluding principal, received
from the Issuer Swap Provider(s) under the Issuer Swap Agreement(s)
in respect of the related Series and Class of Issuer Notes):
(i) to pay the amounts due and payable to the relevant Issuer Swap
Provider(s) (if any) in respect of the related Series of Class
C Notes (including any termination payment but excluding any
Issuer Swap Excluded Termination Amount) in accordance with the
terms of the relevant Issuer Swap Agreement(s);
(ii) to pay interest due and payable on the related Series of Class
C Notes;
(I) ninth, from amounts (excluding principal) received by the Master
Issuer From Funding 2 in respect of each BB Loan Tranche (and, in
respect of (ii) below, the amounts (if any), excluding principal,
received from the Issuer Swap Provider(s) under the Issuer Swap
Agreement(s) in respect of the related Series and Class of Issuer
Notes):
(i) to pay the amounts due and payable to the relevant Issuer Swap
Provider(s) (if any) in respect of the related Series of Class
D Notes (I including any termination payment but excluding any
Issuer Swap Excluded Termination Amount) in accordance with the
terms of the relevant Issuer Swap Agreement(s);
(ii) to pay interest due and payable on the related Series of Class
D Notes;
(J) tenth, after taking account of any replenishment of the Issuer
Reserve Fund on that Payment Date from Issuer Available Principal
Receipts, to credit the Issuer Reserve Ledger up to an amount no
less than the Issuer Reserve Required Amount;
(K) eleventh, in no order of priority among them but in proportion to
the respective amounts due, towards payment of:
(i) interest amounts due to the Start-Up Loan Provider(s); and
(ii) principal amounts due to the Start-Up Loan Provider(s) to the
extent of issuance fees received from Funding 2 under the
Global Intercompany Loan Agreement);
(L) twelfth, in no order of priority among them but in proportion to the
respective amounts due, to pay any Issuer Swap Excluded Termination
Payments to the Issuer Swap Providers;
(M) thirteenth, in no order of priority among them but in proportion to
the respective amounts due, towards payment of principal amounts due
to the Start-Up Loan Provider(s) under the Start-Up Loan
Agreement(s); and
(N) last, to pay to the Master Issuer an amount equal to 0.01% per annum
of the interest received under the Global Intercompany Loan, which
will be retained
56
by the Master Issuer as profit, less corporation tax in respect of
those profits provided for or paid at item (C) above.
2. Distribution of Issuer Available Principal Receipts Prior to Enforcement
of the Issuer Security
Prior to enforcement of the Issuer Security pursuant to the Issuer Deed
of Charge, or until such time as there are no Issuer Notes outstanding,
Issuer Available Principal Receipts will be applied in the following
manner (the "Issuer Pre-Enforcement Principal Priority of Payments"):
(A) to the extent that monies have been drawn from the Issuer Reserve
Fund to make Issuer Reserve Principal Payments, towards the
replenishment of the Issuer Reserve Fund up to the Issuer Reserve
Required Amount, such amount to be debited to the Sub-Ledger(s) of
the Series and Class(es) of Issuer Notes in respect of which such
Issuer Reserve Principal Payments were made;
(B) In respect of the Class A Notes, from principal amounts received by
the Master Issuer from Funding 2 in respect of each AAA Loan Tranche
(and, in respect of (ii) below, the principal amounts received (if
any) from the Issuer Swap Provider(s) under the relevant Issuer Swap
Agreement(s)):
(i) to pay amounts due and payable (in respect of principal) on
such Payment Date to the relevant Issuer Swap Provider(s) in
respect of the related Series of Class A Notes in accordance
with the terms of the relevant Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable (in respect of principal) on
such Payment Date on the related Series of Class A Notes;
(C) In respect of the Class B Notes, from principal amounts received by
the Master Issuer from Funding 2 in respect of each AA Loan Tranche
(and, in respect of (ii) below, the principal amounts received (if
any) from the Issuer Swap Provider(s) under the relevant Issuer Swap
Agreement(s)):
(i) to pay amounts due and payable (in respect of principal) on
such Payment Date to the relevant Issuer Swap Provider(s) in
respect of the related Series of Class B Notes in accordance
with the terms of the relevant Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable on such Payment Date on the
related Series of Class B Notes;
(D) In respect of the Class M Notes, from principal amounts received by
the Master Issuer from Funding 2 in respect of each A Loan Tranche
(and, in respect of (ii) below, the principal amounts received (if
any) from the Issuer Swap Provider(s) under the relevant Issuer Swap
Agreement(s)):
(i) to pay amounts due and payable (in respect of principal) on
such Payment Date to the relevant Issuer Swap Provider(s) in
respect of the related Series of Class M Notes in accordance
with the terms of the relevant Issuer Swap Agreement(s); and
57
(ii) to pay amounts due and payable (in respect of principal) on
such Payment Date on the related Series of Class M Notes;
(E) In respect of the Class C Notes, from principal amounts received by
the Master Issuer from Funding 2 in respect of each BBB Loan Tranche
(and, in respect of (ii) below, the principal amounts received (if
any) from the Issuer Swap Provider(s) under the relevant Issuer Swap
Agreement(s)):
(i) to pay amounts due and payable (in respect of principal) on
such Payment Date to the relevant Issuer Swap Provider(s) in
respect of the related Series of Class C Notes in accordance
with the terms of the relevant Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable (in respect of principal) on
such Payment Date on the related Series of Class C Notes;
(F) In respect of the Class D Notes, from principal amounts received by
the Master Issuer from Funding 2 in respect of each BB Loan Tranche
(and, in respect of (ii) below, the principal amounts received (if
any) from the Issuer Swap Provider(s) under the relevant Issuer Swap
Agreement(s)):
(i) to pay amounts due and payable (in respect of principal) on
such Payment Date to the relevant Issuer Swap Provider(s) in
respect of the related Series of Class D Notes in accordance
with the terms of the relevant Issuer Swap Agreement(s); and
(ii) to pay amounts due and payable (in respect of Principal) on
such Payment Date on the related Series of Class D Notes.
3. Distribution of Issuer Available Principal Receipts and Issuer Available
Revenue Receipts Following Enforcement of the Issuer Security
Following enforcement of the Issuer Security, on each Payment Date the
Issuer Security Trustee (or the Issuer Cash Manager on its behalf) will
apply amounts received or recovered as follows:
(A) first, in no order of priority among them but in proportion to the
amounts due to pay amounts due to the Note Trustee and the Issuer
Security Trustee (and any Receiver appointed by the Issuer Security
Trustee) together with the interest and VAT on those amounts and to
provide for any amounts then due or to become due and payable to the
Note Trustee and the Issuer Security Trustee, and the Receiver under
the provisions of the Issuer Trust Deed, the 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 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 Paying Agent and Agent Bank Agreement;
58
(C) third, in no order of priority among them but in proportion to the
respective amounts due, towards payment of amounts (together with
VAT on those amounts) due and payable to the Issuer Cash Manager
under the Issuer Cash Management Agreement, to the Corporate
Services Provider under the Corporate Services Agreement and to the
Issuer Account Bank under the Issuer Bank Account Agreement;
(D) fourth, subject to item (E) below, in no order of priority among
them but in proportion to the respective amounts due, to pay amounts
due to the Issuer Swap Providers for each Series of Class A Notes
(including any termination payment but excluding any Issuer Swap
Excluded Termination Amount);
(E) fifth, in no order of priority among them but in proportion to the
respective amounts due, to pay interest due or overdue on, and to
repay principal of, the applicable series of Class A Notes provided
that if the amounts available for distribution under this item (E)
(on the assumption that no amounts are due and payable under item
(D) and no amounts are received from any Issuer Swap Provider) would
be insufficient to pay the Sterling Equivalent of the amounts due
and payable on the Class A Notes, the shortfall shall be divided
amongst all Class A Notes on a pro rata basis and the amount payable
by the Master Issuer to the Issuer Swap Provider in respect of any
Series of Class A Notes under paragraph (D) above shall be reduced
by the amount of the shortfall applicable to that Series of Class A
Notes;
(F) sixth, subject to item (G) below, in no order of priority among them
but in proportion to the respective amounts due, to pay amounts due
to the Issuer Swap Providers for each Series of Class B Notes
(including any termination payment but excluding any Issuer Swap
Excluded Termination Amount);
(G) seventh, in no order of priority among them but in proportion to the
respective amounts due, to pay interest due or overdue on, and to
repay principal of, the applicable Series of Class B Notes provided
that if the amounts available for distribution under this item (G)
(on the assumption that no amounts are due and payable under item
(F) and no amounts are received from any Issuer Swap Provider) would
be insufficient to pay the Sterling Equivalent of the amounts due
and payable on the Class B Notes, the shortfall shall be divided
amongst all Class B Notes on a pro rata basis and the amount payable
by the Master Issuer to the Issuer Swap Provider in respect of the
any Series Class B Notes of under paragraph (F) above shall be
reduced by the amount of the shortfall applicable to that Series of
Class B Notes;
(H) eighth, subject to item (I) below, in no order of priority among
them but in proportion to the respective amounts due, to pay amounts
due to the Issuer Swap Providers for each Series of Class M Notes
(including any termination payment but excluding any Issuer Swap
Excluded Termination Amount);
(I) ninth, in no order of priority among them but in proportion to the
respective amounts due, to pay interest due or overdue on, and to
repay principal of, the applicable Series of Class M Notes provided
that if the amounts available for distribution under this item (I)
(on the assumption that no amounts are due and payable under item
(H) and no amounts are received from any Issuer Swap
59
Provider) would be insufficient to pay the Sterling Equivalent of
the amounts due and payable on the Class M Notes, the shortfall
shall be divided amongst all Class M Notes on a pro rata basis and
the amount payable by the Master Issuer to the Issuer Swap Provider
in respect of any Series of Class M Notes under paragraph (H) above
shall be reduced by the amount of the shortfall applicable to that
Series of Class M Notes;
(J) tenth, subject to item (K) below, in no order of priority among them
but in proportion to the respective amounts due, to pay amounts due
to the Issuer Swap Providers for each Series of Class C Notes
(including any termination payment but excluding any Issuer Swap
Excluded Termination Amount);
(K) eleventh, in no order of priority among them but in proportion to
the respective amounts due, to pay interest due or overdue on, and
to repay principal of, the applicable Series of Class C Notes
provided that if the amounts available for distribution under this
item (K) (on the assumption that no amounts are due and payable
under item (J) and no amounts are received from any Issuer Swap
Provider) would be insufficient to pay the Sterling Equivalent of
the amounts due and payable on the Class C Notes, the shortfall
shall be divided amongst all Class C Notes on a pro rata basis and
the amount payable by the Master Issuer to the Issuer Swap Provider
in respect of any Series of Class C Notes under paragraph (J) above
shall be reduced by the amount of the shortfall applicable to that
Series of Class C Notes;
(L) twelfth, subject to item (M) below, in no order of priority among
them but in proportion to the respective amounts due, to pay amounts
due to the Issuer Swap Providers for each Series of Class D Notes
(including any termination payment but excluding any Issuer Swap
Excluded Termination Amount);
(M) thirteenth, in no order of priority among them but in proportion to
the respective amounts due, to pay interest due or overdue on, and
to repay principal of, the applicable Series of Class D Notes
provided that if the amounts available for distribution under this
item (M) (on the assumption that no amounts are due and payable
under item (K) and no amounts are received from any Issuer Swap
Provider) would be insufficient to pay the Sterling Equivalent of
the amounts due and payable on the Class D Notes, the shortfall
shall be divided amongst all Class D Notes on a pro rata basis and
the amount payable by the Master Issuer to the Issuer Swap Provider
in respect of any Series of Class D Notes under paragraph (K) above
shall be reduced by the amount of the shortfall applicable to that
Series of Class D Notes;
(N) fourteenth, on the Payment Date falling in December of each year, to
pay to the Issuer Account Bank an amount equal to the amount of any
debit balance in the Issuer Transaction Account as permitted by the
Issuer Account Bank and outstanding at such Payment Date;
(O) fifteenth, in no order of priority among them but in proportion to
the respective amounts due, towards payment of:
(i) interest amounts due to the Start-Up Loan Provider(s); and
60
(ii) principal amounts due to the Start-Up Loan Provider(s) to the
extent of issuance fees received from Funding 2 under the
Global Intercompany Loan Agreement);
under the Start-Up Loan Agreement(s);
(P) sixteenth, in no order of priority among them but in proportion to
the respective amounts due, to pay any Issuer Swap Excluded
Termination Payments to the Issuer Swap Providers;
(Q) seventeenth, in no order of priority among them but in proportion to
the respective amounts due, towards payment of principal amounts due
to the Start-Up Loan Provider(s) under the Start-Up Loan Agreements;
(R) last, to pay any amount remaining following the application of
principal and revenue set forth in items (A) through (Q) above, to
the Master Issuer.
61
SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT
To: [Addressee(s)]
Granite Master Issuer plc - Assignment of rights under Issuer Transaction
Documents
[o]
Dear Sirs,
Terms and expressions used in this letter are as defined in a deed of charge
(the "Issuer Deed of Charge") between Granite Master Issuer plc (the "Master
Issuer"), The Bank of New York (the "Issuer Security Trustee") and others
dated [o].
We hereby give notice to each addressee of this letter that by assignment(s)
under or pursuant to the Issuer Deed of Charge, the Master Issuer has assigned
absolutely, by way of security for the payment and performance of certain
obligations of the Master Issuer described in the Issuer Deed of Charge (the
"Issuer Secured Obligations"), to the Issuer Security Trustee all its right,
title, benefit and interest under the [Agreement(s)] (the "Issuer Transaction
Documents") including its right, title interest and benefit in relation to
[describe property] and including, without limitation, all rights to receive
payment of any amounts which may become payable to the Master Issuer
thereunder, all payments received by the Master Issuer thereunder, all rights
to serve notices and/or make demands thereunder and/or to take such steps as
are required to cause payments to become due and payable thereunder and all
rights of action in respect of any breach thereof and all rights to receive
damages or obtain relief in respect thereof and the proceeds of any of the
foregoing, (hereinafter called "Relevant Issuer Property").
By signing the enclosed copy of this notice you acknowledge and consent to the
assignments and agree that:
(a) from the date of this notice you are obliged to and you will pay all
moneys which are or may become payable to the Master Issuer under
the aforesaid agreements to or to the order of the Issuer Security
Trustee; and
(b) you have not, at the date of this notice, received notice that any
third party has or will have any right of interest whatsoever in the
Relevant Issuer Property.
62
Notwithstanding the assignments made by the Master Issuer and referred to in
this notice, the Issuer Security Trustee hereby confirms and you further
acknowledge that:
(a) you may continue to make all payments becoming due to the Master
Issuer in respect of the Relevant Issuer Property in the manner
envisaged by the relevant Issuer Transaction Document(s); and
(b) the Master Issuer shall be entitled to exercise its rights, powers
and discretions and perform its obligations in relation to the
Relevant Issuer Property and under the Issuer Transaction Documents
in accordance with the provisions of the Issuer Transaction
Documents,
but only until such time as you receive notice from the Issuer Security
Trustee to the contrary or to the effect that the security created under the
Issuer Deed of Charge has become enforceable, in which event from receipt of
such notice you agree that you will pay all monies becoming due and payable to
the Master Issuer in respect of the Relevant Issuer Property in accordance
with any instructions received from the Issuer Security Trustee.
This letter is governed by, and shall be construed in accordance with, English
law.
Please acknowledge receipt of this notice by executing and returning the copy
of this letter attached hereto.
Yours faithfully,
EXECUTED for and on behalf of )
GRANITE MASTER ISSUER PLC )
by: )
Authorised Signatory
Name:
Title:
63
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by: )
Authorised Signatory
Name:
Title:
We acknowledge receipt of the above notice and the terms of the assignment
created by you in respect of the Relevant Issuer Property.
In respect of the [Agreement]:
For and on behalf of )
[Party to Issuer Transaction Document] )
by: )
Authorised Signatory
Name:
Title:
64
SCHEDULE 4
ISSUER RESERVE FUND
1. Utilisation of Issuer Reserves
1.1 Prior to enforcement of the Issuer Security, amounts standing to the
credit of the Issuer Reserve Fund may be utilised:
(a) through inclusion in the calculation of Issuer Available Reserve
Receipts, to help meet any deficit in Issuer Available Revenue
Receipts;
(b) to help meet expenses in connection with the issue of Issuer Notes
by the Master Issuer; and
(c) through inclusion in the calculation of Issuer Available Principal
Receipts, to help meet any deficit:
(i) prior to the occurrence of a Trigger Event, repayment of
principal due and payable in respect of the Original Bullet
Redemption Notes (which are Class A Notes); and
(ii) on or after the occurrence of a Trigger Event, repayment of
principal due and payable in respect of the Original Bullet
Redemption Notes (which are Class A Notes) on their respective
Final Maturity Dates.
1.2 Following enforcement of the Issuer Security, to the extent not applied
on a Payment Date in accordance with paragraph 1 above, amounts standing
to the credit of the Issuer Reserve Ledger shall only be applied in
making payments of principal due under the Issuer Notes on any Payment
Date.
2. Adjustment of Issuer Reserves
The Master Issuer may adjust:
(a) the Issuer Reserve Minimum Amount or the method of computing the
Issuer Reserve Minimum Amount, at any time without the consent of
any Issuer Secured Creditors, so long as it has an opinion of
counsel that for US federal income tax purposes:
(i) the change will not adversely affect the tax characterisation
as debt of any outstanding Series and Class of Issuer Notes
that were characterised as debt at the time of their issuance;
(ii) following the change, the Master Issuer will not be treated as
an association, or publicly traded partnership, taxable as a
corporation; and
(iii) such change will not cause or constitute an event in which
gain or loss would be recognised by any holder of such Issuer
Notes;
65
(b) the Programme Reserve Required Percentage or the method of computing
the Programme Reserve Required Amount, at any time without the
consent of any Issuer Secured Creditors, so long as we obtain
confirmation from the Rating Agencies that such adjustments will not
cause a reduction, qualification or withdrawal of the ratings of any
outstanding Issuer Notes.
66
SCHEDULE 5
FORM OF ACCESSION UNDERTAKING
THIS DEED is made on [o]
BETWEEN:
(1) GRANITE MASTER ISSUER PLC (registered number 5250668) a public limited
company incorporated under the laws of England and Wales whose registered
office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as Master
Issuer;
(2) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, in its capacity as (1) Issuer Security Trustee and (2) Note
Trustee;
(3) CITIBANK, N.A., acting through its office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, in its capacity as (1) Principal Paying Agent, (2) Agent Bank,
(3) Registrar, (4) Transfer Agent and (5) Account Bank;
(4) CITIBANK, N.A., acting through its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 14th Floor,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇.▇.▇., in its capacity as US
Paying Agent;
(5) NORTHERN ROCK PLC (registered number 03273685) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇, in its
capacity as (1) Issuer Cash Manager, (2) Issuer GIC Provider and (3)
Start-Up Loan Provider; and
(6) LAW DEBENTURE CORPORATE SERVICES LIMITED (registered number 3388362) a
private limited company incorporated under the laws of England and Wales
whose registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ as the Corporate Services Provider; and
(7) [o] (in its capacity as [o], the "New Issuer Secured Creditor".
NOW THIS DEED WITNESSES AS FOLLOWS
WHEREAS
(A) Pursuant to the terms of [description of agreement] (the "Agreement")
dated [o] made between the Master Issuer and the New Secured Creditor,
the Master Issuer has agreed to [description of nature of obligations of
the Master Issuer under the Agreement].
(B) The Master Issuer has agreed to provide the Issuer Security Trustee with
the benefit of the security described in the Issuer Deed of Charge to
secure the Master Issuer's obligations to the Issuer Secured Creditors.
67
(C) The terms of the Issuer Deed of Charge permit the Master Issuer to secure
its obligations to a New Secured Creditor thereunder.
(D) The New Secured Creditor has agreed to enter into this Deed to accede to
the provisions of the Issuer Deed of Charge.
(E) The Issuer Secured Creditors have agreed to enter into this Deed to,
inter alia, acknowledge and agree to such accession and to permit any
consequential changes to the Issuer Priority of Payments set out in the
Issuer Deed of Charge as are required and any other amendment as may be
required to give effect to this Accession Undertaking.
1. INTERPRETATION
The Master Definitions Schedule as amended and restated by (and appearing
as Appendix 1 to) the Master Definitions Schedule [o]th Deed of Amendment
made on [o] between others, the Seller, Funding, [Funding 2] and the
Mortgages Trustee (as the same may have been and may be amended, varied
or supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into and shall apply to this
Deed.
2. REPRESENTATIONS AND WARRANTIES
2.1 The New Secured Creditor hereby represents and warrants to the Issuer
Security Trustee and each of the Issuer Secured Creditors in respect of
itself that as of the date of this Deed:
(a) pursuant to the terms of the Agreement, the Master Issuer has agreed
to pay to the New Secured Creditor the amount (if any) [description
in relation to the Agreement]; and
(b) the Agreement expressly provides that all amounts due from the
Master Issuer thereunder are to be secured by the Issuer Deed of
Charge.
2.2 The Master Issuer hereby represents and warrants to the Issuer Security
Trustee that each of the Issuer Secured Creditors that as at the date of
this Deed, the conditions to issuing further Issuer Notes set out in the
Programme Agreement are satisfied;
3. ACCESSION
In consideration of the New Secured Creditor being accepted as an Issuer
Secured Creditor for the purposes of the Issuer Deed of Charge by the
parties thereto as form the date of this Deed, the New Secured Creditor:
(a) confirms that as from [o], it intends to be a party to the Issuer
Deed of Charge as an Issuer Secured Creditor;
(b) undertakes to comply with and be bound by all of the provisions of
the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule [o]th
Deed of Amendment (as the same
68
may have been and may be amended, varied or supplemented from time
to time) and the Issuer Deed of Charge in its capacity as an Issuer
Secured Creditor, as if it had been an original party thereto.
(c) undertakes to perform, comply with and be bound by all of the
provisions of the Issuer Deed of Charge in its capacity as a Issuer
Secured Creditor, as if it had been an original party thereto as
provided in [relevant clauses relating to Issuer Priority of
Payment]; and
(d) agrees that the Issuer Security Trustee shall be the Issuer Security
Trustee of the Deed of Charge for all Issuer Secured Creditors upon
and subject to the terms set out in the Issuer Deed of Charge.
4. SCOPE OF THE DEED OF CHARGE
The Master Issuer, the New Secured Creditor and the Issuer Security
Trustee hereby agree that for the relevant purposes under the Issuer Deed
of Charge and the Master Definitions Schedule as amended and restated by
(and appearing as Appendix 1 to) the Master Definitions Schedule [o]th
Deed of Amendment:
(a) the Agreement shall be treated as an Issuer [Transaction Document];
and
(b) the New Secured Creditor shall be treated as an Issuer Secured
Creditor.
5. AMENDMENT TO THE ISSUER PRIORITY OF PAYMENTS
To the extent necessary, the Issuer Secured Creditors agree to amend and
restate the Issuer Priority of Payments set out in this Deed.
6. APPLICATION
Prior to and following enforcement of the Security all amounts at any
time held by the Master Issuer, the Issuer Cash Manager or the Issuer
Security Trustee in respect of the security created under or pursuant to
this Deed shall be held and/or applied by such person subject to and in
accordance with the relevant provisions of the Issuer Cash Management
Agreement and the Issuer Deed of Charge.
7. NOTICES
Any notice or communication under or in connection with this Deed, the
Issuer Deed of Charge or the Master Definitions Schedule shall be given
in the manner and at the times set out in Clause 22 (Notices) of the
Issuer Deed of Charge to the addresses given in this Clause or at such
other address as the recipient may have notified to the other parties
hereto and/or thereto in writing.
The address referred to in this Clause 7 for the New Secured Creditor is:
[o]
For the attention of: [o]
Telephone: [o]
Facsimile: [o]
69
or such other address and/or numbers as the New Secured Creditor may
notify to the parties to the Deed of Charge in accordance with the
provisions thereof.
8. GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with,
English law.
DULY EXECUTED AND DELIVERED AS A DEED by each of the parties hereto on its
behalf on the date appearing on page 1.
New Secured Creditor
Executed by
[o]
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its Director
directors and by another of its directors/its
secretary
Name:___________________________________________
By:_____________________________________________
Director/Secretary
Name:___________________________________________
The Master Issuer
Executed by
GRANITE MASTER ISSUER PLC
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its for and on behalf of LDC
directors and by another of its directors/its Securitisation Director No. 1 Limited
secretary - Director
Name:___________________________________________
By:_____________________________________________
for and on behalf of LDC
Securitisation Director No. 2 Limited
- Director
Name:___________________________________________
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The Note Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
The Issuer Security Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
The Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent, and the Account
Bank
Executed by
CITIBANK, N.A.
as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duly Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
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The US Paying Agent
Executed by
CITIBANK, N.A.
as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duty Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
The Issuer Cash Manager
Executed by
NORTHERN ROCK PLC
as its deed as follows: By:_____________________________________________
Signed for and on its behalf by one of its duly Duty Authorised Attorney/Signatory
authorised attorneys/signatories
Name:___________________________________________
Signature:_____________________________________
Witness
Full Name:__________________________________
Occupation: Solicitor
--------------------------------
Address: c/o Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ &
-------------------------
Wood
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Woolgate Exchange
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▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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The Corporate Service Provider
Executed by
LAW DEBENTURE CORPORATE
SERVICES LIMITED By:_____________________________________________
as its deed as follows: Director
Signed for and on its behalf by one of its
directors and by another of its directors/its Name:___________________________________________
secretary
By:_____________________________________________
Director/Secretary
Name:___________________________________________
72