AMENDED AND RESTATED MASTER INTERCOMPANY EXHIBIT 4.1.1
LOAN AGREEMENT
21 NOVEMBER 2007
PERMANENT FUNDING (NO. 2) LIMITED
AS FUNDING 2
PERMANENT MASTER ISSUER PLC
AS MASTER ISSUER
THE BANK OF NEW YORK
AS FUNDING 2 SECURITY TRUSTEE
AND
CITIBANK, N.A.
AS AGENT BANK
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................1
2. The Facility.........................................................2
3. Conditions Precedent.................................................2
4. Purpose..............................................................3
5. Limited Recourse.....................................................4
6. Advance of Loan Tranches.............................................5
7. Interest.............................................................6
8. Repayment...........................................................10
9. Prepayment..........................................................11
10. Taxes...............................................................12
11. Illegality..........................................................13
12. Mitigation..........................................................13
13. Representations and Warranties of Funding.2.........................13
14. Covenants...........................................................15
15. Default.............................................................18
16. Default Interest and Indemnity......................................19
17. Payments............................................................20
18. Entrenched Provisions...............................................21
19. Further Provisions..................................................21
20. Redenomination......................................................22
21. Notices.............................................................23
22. Governing Law and Submission to Jurisdiction........................23
SCHEDULE
1. Condi tions Precedent...............................................24
2. Form of Loan Tranche Notice.........................................26
3. Form of Loan Tranche Supplement.....................................27
4. Solvency Certificate................................................33
Signatories..................................................................35
THIS AMENDED AND RESTATED MASTER INTERCOMPANY LOAN AGREEMENT (this AGREEMENT)
is made as a deed on 21 November 2007
BETWEEN:
(1) PERMANENT FUNDING (NO. 2) LIMITED (registered number 4441772), a
private limited company incorporated under the laws of England and
Wales whose registered office is at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ (FUNDING 2);
(2) PERMANENT MASTER ISSUER PLC (registered number 5922774), a public
limited company incorporated under the laws of England and Wales whose
registered office is at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
MASTER ISSUER);
(3) THE BANK OF NEW YORK, a national association acting through its office
at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its capacity as the
FUNDING 2 SECURITY TRUSTEE, which expression shall include such
company and all other persons or companies for the time being acting
as security trustee (or co-trustee) pursuant to the terms of the
Funding 2 Deed of Charge); and
(4) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its capacity as the
AGENT BANK).
WHEREAS:
(A) From time to time, the Master Issuer has issued and will issue Notes
pursuant to the Programme.
(B) From time to time after the date hereof, the Master Issuer
Subordinated Loan Provider will make Master Issuer Subordinated Loans
to the Master Issuer pursuant to the Master Issuer Subordinated Loan
Agreements.
(C) From time to time after the date hereof, the Master Issuer Start-up
Loan Provider will advance Master Issuer Start-up Loans to the Master
Issuer pursuant to the Master Issuer Start-up Loan Agreements.
(D) The Master Issuer has agreed that it will lend the proceeds (or, as
applicable, the sterling equivalent thereof) of any issue of Notes,
any borrowings under the Master Issuer Subordinated Loan Agreements
and any borrowings under the Master Issuer Start-up Loan Agreements to
Funding 2.
(E) The Master Intercompany Loan Agreement sets out the terms and
conditions with respect to lending by the Master Issuer of the
proceeds of the issue of Notes.
(F) The parties to the Master Intercompany Loan Agreement have agreed to
further amend and restate the terms of the Master Intercompany Loan
Agreement as set out herein including to set out the terms and
conditions with respect to lending by the Master Issuer of the
proceeds of the borrowings under the Master Issuer Subordinated Loan
Agreements and the Master Issuer Start-up Loan Agreements to Funding
2.
1. DEFINITIONS AND INTERPRETATION
1.1 The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated 21
November 2007 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) is expressly and
specifically incorporated into this Agreement and, accordingly, the
expressions defined in the Master Definitions and Construction
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Schedule (as so amended, varied or supplemented from time to time)
shall, except where the context otherwise requires and save where
otherwise defined herein, have the same meanings in this Agreement
(including the Recitals hereto) and this Agreement shall be construed
in accordance with the interpretation provisions set out in Clause 3
of the Master Definitions and Construction Schedule.
1.2 This Agreement amends and restates the Master Intercompany Loan
Agreement made on 17 October 2006 as amended and restated on 1 March
2007 (the PRINCIPAL AGREEMENT). As of the date of this Agreement, any
future rights or obligations (excluding such obligations accrued to
the date of this Agreement) of a party under the Principal Agreement
shall be extinguished and shall instead be governed by this Agreement.
2. THE FACILITY
Subject to the terms of this Agreement, the Master Issuer agrees to
make available to Funding 2 a facility (the MASTER INTERCOMPANY LOAN
FACILITY). On the London Business Day prior to each Closing Date
and/or each Advance Date (as applicable), the Master Issuer shall
offer Loan Tranches to Funding 2 under the Master Intercompany Loan
Facility that correspond to:
(a) each Series and Class of Notes to be issued by the Master
Issuer on the relevant Closing Date;
(b) each Master Issuer Subordinated Loan to be advanced to the
Master Issuer on the relevant Advance Date; and/or
(c) each Master Issuer Start-Up Loan to be advanced to the Master
Issuer on the relevant Advance Date.
Each Loan Tranche shall be denominated in Sterling. Subject to the
terms of this Agreement, on each Closing Date and/or each Advance Date
(as applicable), Funding 2 shall accept the offer.
3. CONDITIONS PRECEDENT
Save as the Master Issuer, Funding 2 and the Funding 2 Security
Trustee may otherwise agree, each Loan Tranche will not be available
for utilisation on the relevant Closing Date and/or Advance Date (as
applicable) unless:
(a) (with respect to all Rated Loan Tranches) the related Series
and Class of Notes has been issued by the Master Issuer on the
relevant Closing Date and the subscription proceeds thereof
have been received by or on behalf of the Master Issuer;
(b) (with respect to all Subordinated Loan Tranches) the related
Master Issuer Subordinated Loan has been advanced by the
Master Issuer Subordinated Loan Provider to the Master Issuer
on the relevant Advance Date and the proceeds thereof have
been received by or on behalf of the Master Issuer;
(c) (with respect to all Start-Up Loan Tranches) the related
Master Issuer Start-Up Loan has been advanced by the Master
Issuer Start-Up Loan Provider to the Master Issuer on the
relevant Advance Date and the proceeds thereof have been
received by or on behalf of the Master Issuer;
(d) the Funding 2 Security Trustee has confirmed to Funding 2 that
it or its advisers have received all the information and
documents listed in Schedule 1 hereto (Conditions Precedent)
in form and substance satisfactory to the Funding 2 Security
Trustee;
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(e) Funding 2 and the Master Issuer have signed a Loan Tranche
Supplement (substantially in the form set out in Schedule 3
hereto (Form of Loan Tranche Supplement));
(f) Funding 2 has confirmed in the applicable Loan Tranche
Supplement that:
(i) no Master Intercompany Loan Event of Default has
occurred and is continuing unremedied (if capable of
remedy) or unwaived or would result from the making of
such Loan Tranche;
(ii) the representations set out in Clause 13 are true on
and as of the relevant Closing Date by reference to
the facts and circumstances then existing; and
(iii) there will be no debit balance on the Funding 2
Principal Deficiency Ledger after the application of
the Funding 2 Available Revenue Receipts on the next
Funding 2 Interest Payment Date;
(g) Funding 2 has delivered a solvency certificate substantially
in the form set out in Schedule 4 hereto;
(h) the Master Issuer has confirmed in the applicable Loan Tranche
Supplement that no Note Event of Default has occurred and is
continuing unremedied (if capable of remedy) or unwaived or
would result from the making of such Loan Tranche;
(i) each of the Rating Agencies has confirmed in writing to the
Master Issuer Security Trustee and/or the Funding 2 Security
Trustee that there will not, as a result of the Master Issuer
issuing any Notes on the Closing Date, be any reduction,
qualification or withdrawal of the then current ratings by the
Rating Agencies of any then outstanding Notes of the Master
Issuer;
(j) one or more Deeds of Accession relating to the Funding 2 Deed
of Charge have been executed by any additional Funding 2
Secured Creditors and the parties to the Funding 2 Deed of
Charge; and
(k) all other conditions precedent as may be specified in the
applicable Loan Tranche Supplement have been satisfied.
4. PURPOSE
4.1 PURPOSE AND APPLICATION OF RATED LOAN TRANCHES AND SUBORDINATED LOAN
TRANCHES
(a) The proceeds of each Loan Tranche (excluding any Start-Up Loan
Tranche) may only be used by Funding 2:
(i) to pay the Seller the Purchase Price for the sale of any New
Portfolio to the Mortgages Trustee on the relevant Closing
Date (which payment shall increase the Funding 2 Share of the
Trust Property in accordance with the terms of the Mortgages
Trust Deed);
(ii) to acquire part of the Funding 1 Share and/or the Seller Share
of the Trust Property (such payment to be made to Funding 1
and/or the Seller, as the case may be, which shall increase
the Funding 2 Share of the Trust Property in accordance with
the terms of the Mortgages Trust Deed);
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(iii) (in the case of Rated Loan Tranches only) to refinance the
existing debt of Funding 2, including any existing Loan
Tranche or of any New Issuer or New Beneficiary in order to
refinance a New Intercompany Loan (in whole or in part);
and/or
(iv) to fund or partly fund or replenish the Funding 2 General
Reserve Fund and/or (if any) the Funding 2 Liquidity Reserve
Fund (in whole or in part).
(b) The proceeds of each Start-Up Loan Tranche may only be used by Funding
2 either:
(i) to fund the Funding 2 General Reserve Fund and/or (if any) the
Funding 2 Liquidity Reserve Fund (in whole or in part);
(ii) to fund the payment of the fees, costs and expenses incurred
by or on behalf of Funding 2 in connection with the payment to
the Seller of part of the consideration for Loans (together
with their Related Security) sold to the Mortgages Trustee
and/or the acquisition of part of the Funding 1 Share of the
Trust Property and/or Seller Share of the Trust Property on
the relevant Closing Date and/or Advance Date; and/or
(iii) to fund the payment of the fees, costs and expenses payable or
incurred by or on behalf of Funding 2 under the Master
Intercompany Loan Agreement which relate to the costs of
issuance of the Notes on the relevant Closing Date and/or the
advance of a Master Issuer Subordinated Loan on the relevant
Advance Date.
4.2 APPLICATION OF AMOUNTS
Without prejudice to the obligations of Funding 2 under this Clause 4,
neither the Funding 2 Security Trustee nor any of the Funding 2
Secured Creditors shall be obliged to concern themselves as to the
application of amounts raised by Funding 2 under a Loan Tranche.
5. LIMITED RECOURSE
5.1 RECOURSE LIMITED TO AVAILABLE FUNDS
Subject to Clause 5.2 but notwithstanding the terms of any other
provision in this Agreement or any other Transaction Document, each of
the Master Issuer and the Funding 2 Security Trustee agree that the
liability of Funding 2 in respect of its obligations to repay
principal and pay interest or any other amounts due under this
Agreement or for any breach of any representation, warranty, covenant
or undertaking of Funding 2 under this Agreement shall be limited to
amounts standing to the credit of the Funding 2 GIC Account and the
Funding 2 Transaction Account from time to time (including, for the
avoidance of doubt, amounts received by Funding 2 in respect of the
Funding 2 Share of the Trust Property and from the Funding 2 Swap
Provider) provided that the application of such amounts to the
discharge of Funding 2's obligations under this Agreement shall be
subject to the terms of the Funding 2 Deed of Charge and the relevant
Funding 2 Priority of Payments in all cases.
5.2 SHORTFALL ON FINAL REPAYMENT DATE
To the extent that on the Final Repayment Date of any Loan Tranche
advanced under this Agreement there is a shortfall between all amounts
(including interest and principal) payable on that Loan Tranche under
this Agreement and the amounts available therefor, that shortfall
shall not be due and payable to the Master Issuer until the time, if
ever, when Funding 2 has enough money available to pay the shortfall
on that Loan Tranche after making any other payments due that rank
higher in priority to that Loan Tranche. Following enforcement of the
Funding 2 Security and distribution of all enforcement proceeds in
accordance with the Funding 2 Deed of Charge, all
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outstanding claims that the Master Issuer and the Funding 2 Security
Trustee may otherwise have against Funding 2 will be extinguished.
6. ADVANCE OF LOAN TRANCHES
6.1 NOTICE TO FUNDING 2
Not later than 2:00 p.m. (London time) on the relevant Closing Date
(or such later time as may be agreed in writing by Funding 2, the
Master Issuer and the Funding 2 Security Trustee), Funding 2 shall
give to the Master Issuer (copied to the Funding 2 Security Trustee) a
Loan Tranche Notice (substantially in the form set out in Schedule 1
hereto (Form of Loan Tranche Notice)) which shall request the drawing
of a Loan Tranche and delivery of which shall (subject to the terms of
this Agreement and (in the case of Rated Loan Tranches) to the issue
of the relevant Series and Class of Notes by the Master Issuer, (in
the case of Subordinated Loan Tranches) to the advance by the Master
Issuer Subordinated Loan Provider of the relevant Master Issuer
Subordinated Loan to the Master Issuer and (in the case of Start-Up
Loan Tranches) to the advance by the Master Issuer Start-Up Loan
Provider of the relevant Master Issuer Start-Up Loan to the Master
Issuer) oblige Funding 2 to borrow the whole amount stated in the Loan
Tranche Notice on the relevant Closing Date upon the terms and subject
to the conditions contained in this Agreement and such Loan Tranche
Notice will set out, inter alia:
(a) the amount and currency or currencies of the proposed issue of
each Series and Class of Notes under the Programme;
(b) (in the case of Rated Loan Tranches only) the Specified
Currency Exchange Rate(s) at which the Master Issuer will swap
the proceeds of each Series and Class of Notes that is not
denominated in Sterling into Sterling; and
(c) the principal amount of each Loan Tranche available for
drawing under the Master Intercompany Loan Facility on such
Closing Date.
6.2 LOAN TRANCHES CORRESPOND TO SERIES AND CLASSES OF NOTES, MASTER ISSUER
SUBORDINATED LOAN OR MASTER ISSUER START-UP LOAN
Each Loan Tranche shall be identified by reference to the relevant
Series and Class of Notes, the Master Issuer Subordinated Loan or the
Master Issuer Start-Up Loan that is used to fund it, as set out in the
applicable Loan Tranche Supplement.
6.3 LOAN TRANCHE SUPPLEMENT
The Loan Tranche Supplement to be signed on each Closing Date in
accordance with Clause 3(e) shall record, amongst other things, the
amount of each Loan Tranche to be made on such Closing Date or Advance
Date (as applicable), which shall correspond to the principal amount
of such Loan Tranche that is available for drawing which is notified
to the Master Issuer in the applicable Loan Tranche Notice.
6.4 SINGLE DRAWING OF THE LOAN TRANCHE
On satisfaction of the conditions set out in Clause 3 the Master
Issuer shall make the applicable Loan Tranches available to Funding 2
on the relevant Closing Date. Each Loan Tranche to be made on the
relevant Closing Date or Advance Date (as applicable) will only be
available for drawing by Funding 2 on the relevant Closing Date and
will not be available for drawing on a later date.
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6.5 REDEMPTION/PAYMENT BASIS
Each Rated Loan Tranche may be a Bullet Loan Tranche, a Scheduled
Amortisation Loan Tranche, a Pass-Through Loan Tranche or a
combination of any of the foregoing, depending upon the
Redemption/Payment Basis shown in the applicable Loan Tranche
Supplement.
7. INTEREST
7.1 LOAN TRANCHE INTEREST PERIODS
(a) The first Loan Tranche Interest Period in respect of a Loan Tranche
will commence on (and include) the Loan Tranche Interest Commencement
Date relating to that Loan Tranche and end on (but exclude) the first
Funding 2 Interest Payment Date falling thereafter. Each subsequent
Loan Tranche Interest Period shall commence on (and include) a Funding
2 Interest Payment Date and end on (but exclude) the next following
Funding 2 Interest Payment Date.
(b) Whenever it is necessary to compute an amount of interest in respect
of a Loan Tranche for any period (including any Loan Tranche Interest
Period), such interest shall be calculated on the basis of actual days
elapsed in a 365 day year.
7.2 DETERMINATION OF LOAN TRANCHE INTEREST AMOUNT
In relation to any Loan Tranche, the rate of interest payable (the
LOAN TRANCHE RATE OF INTEREST) and the relevant Sterling interest
amount (each a LOAN TRANCHE INTEREST AMOUNT) in respect of such Loan
Tranche shall be determined on the basis of the provisions set out
below:
(a) On the Loan Tranche Interest Determination Date in relation to
such Loan Tranche, the Agent Bank will determine the Relevant
Screen Rate in respect of such Loan Tranche at or about 11.00
am London time. If the Relevant Screen Rate is unavailable,
the Agent Bank will request the principal London office of
each of the Reference Banks to provide the Agent Bank with its
offered quotation to leading banks for three-month Sterling
deposits of [POUND]10,000,000 in the London inter-bank market
as at or about 11.00 a.m. London time on such Loan Tranche
Interest Determination Date.
(b) The Loan Tranche Rate of Interest for such Loan Tranche for
the Loan Tranche Interest Period relating to such Loan Tranche
shall be the aggregate of:
(i) the Relevant Margin in respect of such Loan Tranche;
and
(ii) the Relevant Screen Rate in respect of such Loan
Tranche or, if the Relevant Screen Rate is
unavailable, the arithmetic mean (or, in the case of
the initial Loan Tranche Interest Determination Date
for such Loan Tranche, the linear interpolation of the
arithmetic mean) of such offered quotations by the
Reference Banks (rounded upwards, if necessary, to
five decimal places).
(c) If on any Loan Tranche Interest Determination Date in relation
to such Loan Tranche, the Relevant Screen Rate in respect of
such Loan Tranche is unavailable and only two or three of the
Reference Banks provide offered quotations, the Loan Tranche
Rate of Interest for such Loan Tranche for the relevant Loan
Tranche Interest Period shall be determined in accordance with
the provisions of subparagraph (a) above on the basis of the
offered quotations of those Reference Banks providing such
quotations.
(d) If, on any such Loan Tranche Interest Determination Date, only
one or none of the Reference Banks provides the Agent Bank
with such an offered quotation, the Agent Bank
6
shall forthwith consult with the Funding 2 Security Trustee
for the purposes of agreeing two banks (or, where one only of
the Reference Banks provided such a quotation, one additional
bank) to provide such a quotation or quotations to the Agent
Bank (which bank or banks are in the opinion of the Funding 2
Security Trustee suitable for such purpose) and the Loan
Tranche Rate of Interest for such Loan Tranche for the Loan
Tranche Interest Period in question shall be determined, as
aforesaid, on the basis of the offered quotations of such
banks as so agreed (or, as the case may be, the offered
quotations of such bank as so agreed and the relevant
Reference Bank).
(e) If no such bank or banks is or are so agreed or such bank or
banks as so agreed does or do not provide such a quotation or
quotations, then the Loan Tranche Rate of Interest for such
Loan Tranche for the relevant Loan Tranche Interest Periods
shall be the Loan Tranche Rate of Interest in relation to such
Loan Tranche in effect for the immediately preceding Loan
Tranche Interest Period to which subparagraph (a) above shall
have applied but taking account of any change in the Relevant
Margin in relation to such Loan Tranche.
(f) There will be no minimum or maximum Loan Tranche Rate of
Interest for such Loan Tranche.
(g) The Agent Bank shall as soon as practicable after 11:00 a.m.
(London time) on each Loan Tranche Interest Determination
Date, determine and notify the Master Issuer, Funding 2, the
Cash Manager and the Funding 2 Security Trustee of: (i) the
Loan Tranche Rate of Interest applicable to such Loan Tranche
for the relevant Loan Tranche Interest Period and (ii) the
Loan Tranche Interest Amount payable in respect of each Rated
Loan Tranche for the relevant Loan Tranche Interest Period.
The Cash Manager shall determine the Loan Tranche Interest
Amount payable in respect of each Subordinated Loan Tranche
and each Start-Up Loan Tranche for the relevant Loan Tranche
Interest Period.
(h) The Loan Tranche Interest Amount for such Loan Tranche shall
be determined by applying the relevant Loan Tranche Rate of
Interest to the Outstanding Principal Balance of such Loan
Tranche, multiplying the sum by the day count fraction
described in Clause 7.1 and rounding the resultant figure to
the nearest ▇▇▇▇▇ (half a ▇▇▇▇▇ being rounded upwards).
(i) If the Agent Bank does not at any time for any reason
determine the Loan Tranche Rate of Interest for any Loan
Tranche and the Loan Tranche Interest Amount for any Rated
Loan Tranche in accordance with paragraphs 7.2(a) to (g)
above, the Funding 2 Security Trustee shall (subject to it
being indemnified to its satisfaction) determine the Loan
Tranche Rate of Interest for each Loan Tranche and Loan
Tranche Interest Amount for each Rated Loan Tranche and any
such determination shall be deemed to have been made by the
Agent Bank.
(j) All notifications, opinions, determinations, certificates,
calculations and decisions given, expressed, made or obtained
for the purposes of this Clause 7, whether by the Agent Bank
or the Funding 2 Security Trustee, shall (in the absence of
wilful default, bad faith or manifest error) be binding on
Funding 2, the Master Issuer, the Cash Manager, the Agent
Bank, the Funding 2 Security Trustee and (in such absence as
aforesaid) no liability to Funding 2 shall attach to the
Master Issuer, the Agent Bank, the Funding 2 Security Trustee
or the Cash Manager in connection with the exercise or
non-exercise by them or any of them of their powers, duties
and discretions hereunder.
7.3 PAYMENT ON FUNDING 2 INTEREST PAYMENT DATES
Subject to Clause 5.1, Funding 2 shall pay interest in respect of each
Loan Tranche on the Funding 2 Interest Payment Dates specified in the
applicable Loan Tranche Supplement.
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7.4 DEFERRED INTEREST
Subject to Clause 5.2, to the extent that there are insufficient funds
available to pay interest on a Loan Tranche on any Funding 2 Interest
Payment Date, the shortfall in the interest amount payable will not
then fall due but will instead be due on the following Funding 2
Interest Payment Date on which sufficient funds are available to pay
such interest, and pending such payment, will accrue interest at the
rate specified for such Loan Tranche in the applicable Loan Tranche
Supplement.
7.5 CERTAIN FEES
In addition to the interest and principal payments to be made by
Funding 2 in respect of each Loan Tranche under this Clause 7 and
Clause 8, respectively, on each Funding 2 Interest Payment Date or on
any other date on which the Master Issuer notifies Funding 2, but
subject to Clause 5.1, Funding 2 shall pay to the Master Issuer for
same day value to the Master Issuer Transaction Account a fee for the
provision of the Master Intercompany Loan Facility (except that in the
case of payments due under paragraphs (b), (d), (e) and (j) below,
such payments shall be paid when due by the Master Issuer). Such fee
shall be an amount or amounts in the aggregate equal to the following:
(a) the fees, costs, charges, liabilities and expenses and any
other amounts due and payable to the Note Trustee and the
Funding 2 Security Trustee pursuant to the Master Issuer Trust
Deed, the Master Issuer Deed of Charge or any other
Transaction Document, together with interest thereon as
provided therein;
(b) the reasonable fees and expenses of any legal advisers,
accountants and auditors appointed by the Master Issuer and
properly incurred in their performance of their functions
under the Transaction Documents which have fallen due;
(c) the fees, costs and expenses due and payable to the Paying
Agents, the Agent Bank, the Transfer Agent and the Registrar
pursuant to the Master Issuer Paying Agent and Agent Bank
Agreement;
(d) any amounts due and payable by the Master Issuer to HM Revenue
and Customs in respect of the Master Issuer's liability to
United Kingdom corporation tax (insofar as payment is not or
will not be capable of being satisfied by the surrender of
group relief or out of the profits, income or gains of the
Master Issuer and subject to the terms of the Master Issuer
Deed of Charge) or any other Taxes payable by the Master
Issuer;
(e) the fees, costs, charges, liabilities and expenses due and
payable to the Master Issuer Account Bank pursuant to the
Master Issuer Bank Account Agreement (if any);
(f) the fees, costs, charges, liabilities and expenses due and
payable to the Master Issuer Cash Manager pursuant to the
Master Issuer Cash Management Agreement;
(g) the fees, costs, charges, liabilities and expenses due and
payable to the Master Issuer Corporate Services Provider
pursuant to the Master Issuer Corporate Services Agreement;
(h) any termination payment due and payable by the Master Issuer
to a Master Issuer Swap Provider pursuant to a Master Issuer
Swap Agreement (which amount received by the Master Issuer
from Funding 2 by way of the Senior Fee, and any amount
received by the Master Issuer in consideration of it entering
into an agreement in replacement of such Master Issuer Swap
Agreement, shall be deemed to be received by the Master Issuer
in respect of the Loan Tranche corresponding to the Series and
Class of Notes to which such Master Issuer Swap Agreement
relates);
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(i) an amount equal to 0.01% of the interest amounts paid by
Funding 2 to the Master Issuer on the Loan Tranches on Funding
2 Interest Payment Date, provided that the amount payable by
Funding 2 to the Master Issuer pursuant to this paragraph
(i)together with the amount payable by Funding 2 to the Master
Issuer pursuant to paragraph (d) above, in respect of each
accounting period of the Master Issuer, shall in aggregate not
exceed an amount equal to 0.01% of the interest amounts paid
by Funding 2 to the Master Issuer in respect of the Loan
Tranches in that accounting period; and
(j) any other amounts due or overdue by the Master Issuer to third
parties including the Rating Agencies and the amounts paid by
the Master Issuer under the Programme Agreement, each
Subscription Agreement, each Underwriting Agreement and in
consideration of the Master Issuer entering into any
replacement Master Issuer Swap Agreement to the extent not
paid or payable using any early termination amount received or
receivable by the Master Issuer pursuant to the Master Issuer
Swap Agreement it replaces and excluding, for the avoidance of
doubt, any amounts specified in paragraphs (d) to (i) above
and any amounts owing to the Noteholders,
together with, (i) in respect of taxable supplies made to the Master
Issuer, an amount in respect of any VAT or similar tax payable in
respect thereof against production of a valid tax invoice; and (ii) in
respect of taxable supplies made to a person other than the Master
Issuer, any amount in respect of any VAT or Irrecoverable VAT or
similar tax (as the case may be) payable in respect thereof as
provided in the relevant agreement (against production of a copy of
the relevant tax invoice), and to be applied subject to and in
accordance with the provisions of the Master Issuer Pre-Enforcement
Revenue Priority of Payments in the Master Issuer Cash Management
Agreement. The parties acknowledge that the amount payable by Funding
2 to the Master Issuer pursuant to this Clause 7.5 shall be paid in
accordance with the Funding 2 Deed of Charge and the relevant Funding
2 Priority of Payments (which prior to service of a Master
Intercompany Loan Acceleration Notice shall be paragraph (a)(ii) of
the Funding 2 Pre-Enforcement Revenue Priority of Payments in the case
of the amount payable pursuant to paragraphs (a) to (g) and (j) above
and paragraph (s)(ii) of the Funding 2 Pre-Enforcement Revenue
Priority of Payments in the case of the amount payable pursuant to
paragraphs (h) and (i) above) and (in each case) subject to the
provisions of Clause 5.1 such that in the event of a shortfall
resulting in any such amount not being paid on a Funding 2 Interest
Payment Date then such amount shall not be paid until the next Funding
2 Interest Payment Date (if any) on which Funding 2 has sufficient
amounts standing to the credit of the Funding 2 GIC Account and the
Funding 2 Transaction Account to pay such amount in accordance with
the Funding 2 Deed of Charge and the relevant Funding 2 Priority of
Payments.
7.6 SET-OFF
Funding 2 and each of the other parties to this Agreement agree that
the Master Issuer shall be entitled to set-off those amounts due and
payable by Funding 2 pursuant to Clause 7.5 on the Closing Date for a
Loan Tranche against the amount to be advanced by the Master Issuer to
Funding 2 under such Loan Tranche on such Closing Date.
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8. REPAYMENT
8.1 REPAYMENT OF RATED LOAN TRANCHES
Subject to Clause 5, on each Loan Payment Date, other than a Loan
Payment Date on which a Rated Loan Tranche is to be repaid under
Clause 9, Funding 2 shall repay principal in respect of such Rated
Loan Tranche in an amount equal to:
(a) prior to the occurrence of a Trigger Event, service on Funding
2 of a Master Intercompany Loan Acceleration Notice or the
service on the Master Issuer of a Note Acceleration Notice,
the lower of:
(i) the amount due to be paid on such Loan Payment Date as
specified for such Rated Loan Tranche in the
applicable Loan Tranche Supplement; and
(ii) the amount which is available, under the terms of the
Funding 2 Deed of Charge and the Cash Management
Agreement, to repay principal in respect of such Rated
Loan Tranche as set out in Part 2 of Schedule 4 of the
Funding 2 Deed of Charge,
provided that, in the case of any Pass-Through Loan Tranche,
the amount of principal to be repaid by Funding 2 in respect
of such Rated Loan Tranche on any applicable Loan Payment Date
occurring on or following its Step-Up Date shall be calculated
in accordance with subparagraph (ii) above; or
(b) following the occurrence of a Non-Asset Trigger Event but
prior to the occurrence of an Asset Trigger Event, service on
Funding 2 of a Master Intercompany Loan Acceleration Notice or
service on the Master Issuer of a Note Acceleration Notice,
the amount which is available under the terms of the Funding 2
Deed of Charge and the Cash Management Agreement to repay
principal in respect of such Loan Tranche in such
circumstances as set out in Part 2 of Schedule 4 of the
Funding 2 Deed of Charge; or
(c) following the occurrence of an Asset Trigger Event but prior
to service on Funding 2 of a Master Intercompany Loan
Acceleration Notice or service on the Master Issuer of a Note
Acceleration Notice, the amount which is available under the
terms of the Funding 2 Deed of Charge and the Cash Management
Agreement to repay principal in respect of such Rated Loan
Tranche in such circumstances as set out in Part 2 of Schedule
4 of the Funding 2 Deed of Charge; or
(d) following service on Funding 2 of a Master Intercompany Loan
Acceleration Notice but prior to service on the Master Issuer
of a Note Acceleration Notice, the amount which is available
under the terms of the Funding 2 Deed of Charge and the Cash
Management Agreement to repay principal in respect of such
Rated Loan Tranche in such circumstances as set out in Part 2
of Schedule 4 of the Funding 2 Deed of Charge; or
(e) following service on the Master Issuer of a Note Acceleration
Notice, the amount which is available under the terms of the
Funding 2 Deed of Charge and the Cash Management Agreement to
repay principal in respect of such Loan Tranche in such
circumstances as set out in Part 3 of Schedule 4 of the
Funding 2 Deed of Charge.
8.2 REPAYMENT OF SUBORDINATED LOAN TRANCHES
(a) Funding 2 shall make repayments of all or any part of a Subordinated
Loan Tranche on each Funding 2 Interest Payment Date if, and to the
extent that, there are Funding 2 Available Principal Receipts
available therefor after making the payments and provisions referred
to in paragraphs (a) to (p) of the
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Funding 2 Pre-Enforcement Principal Priority of Payments, until such
Subordinated Loan Tranche has been reduced to the Required
Subordinated Loan Principal Outstanding Amount.
8.3 REPAYMENT OF START-UP LOAN TRANCHES
(a) Funding 2 shall make repayments of all or any part of a Start-Up Loan
Tranche on each Funding 2 Interest Payment Date if, and to the extent
that, there are Funding 2 Available Revenue Receipts available
therefor after making the payments and provisions referred to in
paragraphs (a) to (t) of the Funding 2 Pre-Enforcement Revenue
Priority of Payments, until such Start-Up Loan Tranche and any accrued
but unpaid interest thereon has been fully repaid.
8.4 DEFERRAL OF PRINCIPAL ON LOAN TRANCHES
To the extent that there are insufficient funds available to Funding 2
to repay the amount due to be paid on such Loan Payment Date, Funding
2 will be required to repay the shortfall, to the extent that it
receives funds therefor (and subject to the terms of the Funding 2
Deed of Charge and the Cash Management Agreement) on subsequent
Funding 2 Payment Dates in respect of such Loan Tranche.
8.5 RATED LOAN TRANCHE RATINGS
Unless otherwise specified for any Rated Loan Tranche in the
applicable Loan Tranche Supplement, such Rated Loan Tranche shall be
repaid (as to both interest and principal) in the priority according
to the Loan Tranche Rating of that Rated Loan Tranche. The Loan
Tranche Rating for a Rated Loan Tranche will be specified for such
Rated Loan Tranche in the applicable Loan Tranche Supplement.
8.6 SUBORDINATION OF SUBORDINATED LOAN TRANCHES AND START-UP LOAN TRANCHES
TO RATED LOAN TRANCHES
Each Rated Loan Tranche shall be paid (as to interest) and repaid (as
to principal) in priority to each Subordinated Loan Tranche and each
Start-Up Loan Tranche.
8.7 SUBORDINATION OF START-UP LOAN TRANCHES TO SUBORDINATED LOAN TRANCHES
Each Subordinated Loan Tranche shall be paid (as to interest) and
repaid (as to principal) in priority to each Start-Up Loan Tranche.
8.8 PAYMENT SUBJECT TO TERMS OF THE FUNDING 2 DEED OF CHARGE
The terms and conditions of Clause 7 and this Clause 8 are to be read
in conjunction with the provisions of the Funding 2 Deed of Charge, as
the same may be amended or varied from time to time in accordance with
the provisions thereof.
9. PREPAYMENT
9.1 PREPAYMENT FOR TAXATION OR OTHER REASONS
If:
(a) Funding 2 is required to withhold or deduct from any payment
of principal or interest in respect of any Loan Tranche any
amount for or on account of Tax; or
(b) the Master Issuer is required to withhold or deduct from any
payment of principal, interest or premium in respect of its
Notes any amount for or on account of Tax; or
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(c) the Master Issuer or Funding 2, as the case may be, falls
within the Securitisation Tax Regime but subsequently ceases
to fall within the Securitisation Tax Regime; or
(d) a Loan Tranche becomes illegal as described in Clause 11,
then, without prejudice to the obligations of Funding 2 under Clause
11 and subject to Clause 12, Funding 2 may prepay, in the case of (a)
to (c) above, subject to the Master Issuer satisfying the requirements
of Condition 5(E) of the related Notes, on any Funding 2 Interest
Payment Date, having given not more than 60 days' and not less than 30
days' (or such shorter period as may be required by any relevant law
in the case of any Loan Tranche which becomes illegal pursuant to
Clause 11) prior written notice to the Master Issuer and the Note
Trustee (or on or before the latest date permitted by the relevant law
in the case of Clause 11) so long as the relevant circumstances
continue, the applicable Loan Tranches (which in the case of (c)
above, shall include all outstanding Loan Tranches) without penalty or
premium but subject to Clause 16, provided that (in the case of a
Rated Loan Tranche) the Master Issuer is able to repay the related
Notes used to fund such Rated Loan Tranche on such Funding 2 Interest
Payment Date from funds received from repayment of such Rated Loan
Tranche.
9.2 PREPAYMENT AT OPTION OF MASTER ISSUER
The Master Issuer, at its option, may require Funding 2 to prepay the
outstanding principal amount of a Rated Loan Tranche (together with
any accrued interest) on any Funding 2 Interest Payment Date on which
the Master Issuer has decided to exercise its option, if any, to
redeem in full the Notes used to fund such Rated Loan Tranche. The
Master Issuer shall give Funding 2 not more than 60 days' and not less
than 30 days' prior written notice of the Master Issuer's decision to
exercise its option to require Funding 2 to prepay the relevant Loan
Tranche. Any prepayment by Funding 2 will be made without penalty or
premium but will be subject to Clause 16.
9.3 APPLICATION OF MONIES
(a) The Master Issuer hereby agrees to apply any amounts received by way
of prepayment of a Rated Loan Tranche pursuant to Clause 9.1 or Clause
9.2 in making prepayments under the relevant Series and Class of
Notes.
(b) The Master Issuer hereby agrees to apply any amounts received by way
of prepayment of a Subordinated Loan Tranche pursuant to Clause 9.1 in
making prepayments under the relevant Master Issuer Subordinated Loan
Agreement.
(c) The Master Issuer hereby agrees to apply any amounts received by way
of prepayment of a Start-Up Loan Tranche pursuant to Clause 9.1 in
making prepayments under the relevant Master Issuer Start-Up Loan
Agreement.
10. TAXES
10.1 NO GROSS UP
All payments by Funding 2 under this Agreement shall be made without
any deduction or withholding for or on account of, and free and clear
of, any Taxes, except to the extent that Funding 2 is required by law
to make payment subject to such deduction or withholding.
10.2 TAX RECEIPTS
All Taxes required by law to be deducted or withheld by Funding 2 from
any amounts paid or payable under this Agreement shall be paid by
Funding 2 when due and Funding 2 shall, within 30
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days of the payment being made, deliver to the Master Issuer evidence
satisfactory to the Master Issuer (including all relevant Tax
receipts) that the payment has been duly remitted to the appropriate
authority.
11. ILLEGALITY
If, at any time, it is unlawful for the Master Issuer to make, fund or
allow to remain outstanding a Loan Tranche made by it under this
Agreement, then the Master Issuer shall, promptly after becoming aware
of the same, deliver to Funding 2, the Funding 2 Security Trustee and
the Rating Agencies a legal opinion to that effect from reputable
counsel and if the Master Issuer so requires, Funding 2 shall promptly
to the extent necessary to cure such illegality prepay such Loan
Tranche subject to and in accordance with the provisions of Clause
9.1.
12. MITIGATION
If circumstances arise in respect of the Master Issuer which would, or
would upon the giving of notice, result in:
(a) the prepayment of the Loan Tranches pursuant to Clause 11; or
(b) a withholding or deduction from the amount to be paid by
Funding 2 for or on account of Taxes pursuant to Clause 10,
then, without in any way limiting, reducing or otherwise qualifying
the obligations of Funding 2 under this Agreement, the Master Issuer
shall:
(i) promptly upon becoming aware of the circumstances, notify the
Funding 2 Security Trustee, Funding 2 and the Rating Agencies;
and
(ii) upon written request from Funding 2, take such reasonable
steps as may be practical to mitigate the effects of those
circumstances including (without limitation) the assignment of
the Master Issuer's rights under this Agreement to, and
assumption of all the Master Issuer's obligations under this
Agreement by, another company satisfactory to the Funding 2
Security Trustee, which is willing to participate in the Loan
Tranches in its place and which is not subject to (a) and/or
(b) above,
provided that no such transfer or assignment and transfer of such
rights and obligations may be permitted unless the Rating Agencies
confirm in writing to Funding 2 and the Funding 2 Security Trustee
that there will be no downgrading of the then current rating of the
Notes issued by the Master Issuer as a result and Funding 2
indemnifies the Master Issuer for any reasonable costs and expenses
properly incurred as a result of such transfer or assignment.
13. QREPRESENTATIONS AND WARRANTIES OF FUNDING 2
13.1 REPRESENTATIONS AND WARRANTIES
Funding 2 makes the representations and warranties set out in this
Clause 13 to the Master Issuer and the Funding 2 Security Trustee (as
trustee for each of the Funding 2 Secured Creditors).
13.2 STATUS
(a) It is a limited liability company duly incorporated, validly
existing and registered under the laws of the jurisdiction in
which it is incorporated, capable of being sued in its own
right and not subject to any immunity from any proceedings;
and
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(b) it has the power to own its property and assets and to carry
on its business as it is being conducted.
13.3 POWERS AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary corporate and other action to authorise the execution,
delivery and performance by it of, each of the Transaction Documents
to which it is a party.
13.4 LEGAL VALIDITY
Each Transaction Document to which it is or will be a party
constitutes or when executed in accordance with its terms will
constitute, a legal, valid and binding obligation of Funding 2.
13.5 NON-CONFLICT
The execution by it of each of the Transaction Documents to which it
is a party and the exercise by it of its rights and the performance of
its obligations under such Transaction Documents including, without
limitation, borrowing pursuant to the terms of this Agreement or
granting any security contemplated by the Transaction Documents will
not:
(a) result in the existence or imposition of, nor oblige it to
create, any Security Interest in favour of any person (other
than the Funding 2 Secured Creditors or as otherwise
contemplated in the Transaction Documents) over all or any of
its present or future revenues or assets;
(b) conflict with any document which is binding upon it or any of
its assets;
(c) conflict with its constitutional documents; or
(d) conflict with any law, regulation or official or judicial
order of any government, governmental body or court, domestic
or foreign, having jurisdiction over it.
13.6 NO LITIGATION
No litigation, arbitration or administrative proceedings are current
or, to its knowledge, pending or threatened.
13.7 NO DEFAULT
No Master Intercompany Loan Event of Default is continuing unremedied
(if capable of remedy) or unwaived or would result from the making of
any Loan Tranche.
13.8 AUTHORISATIONS
All consents, licences, approvals, notices and authorisations required
or desirable in connection with the entry into, performance, validity
and enforceability of, and the transactions contemplated by, the
Transaction Documents have been obtained or effected (as appropriate)
and are in full force and effect.
13.9 REGISTRATION REQUIREMENTS
Except for due registration of the Funding 2 Deed of Charge under
Section 395 of the Companies ▇▇▇ ▇▇▇▇, it is not necessary that the
Funding 2 Deed of Charge or this Agreement be filed, recorded or
enrolled with any authority or that, except for registration fees
payable to the Registrar of
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Companies in respect of the Funding 2 Deed of Charge, any stamp,
registration or similar tax be paid on or in respect thereof.
13.10 RANKING OF SECURITY
The security conferred by the Funding 2 Deed of Charge constitutes a
first priority security interest of the type described, and over the
security assets referred to, in the Funding 2 Deed of Charge and the
Funding 2 Charged Property is not subject to any prior or pari passu
Security Interests.
13.11 NO OTHER BUSINESS
(a) It has not traded or carried on any business since its date of
incorporation or engaged in any activity whatsoever that is not
incidental to or necessary in connection with any of the activities in
which the Transaction Documents provide or envisage that it will
engage; and
(b) it is not party to any material agreements other than the Transaction
Documents.
13.12 OWNERSHIP
(a) Its entire issued share capital is legally and beneficially owned and
controlled by Holdings; and
(b) its shares are fully paid.
13.13 GOOD TITLE AS TO ASSETS
Subject to the Security Interests created under the Funding 2 Deed of
Charge, it is and will remain the absolute beneficial owner of the
Funding 2 Share and absolute legal and beneficial owner of all other
assets charged or assigned by the Funding 2 Deed of Charge to which it
is a party.
13.14 TAX
(a) It is a resident for tax purposes and legally domiciled in its
jurisdiction of incorporation;
(b) it has no branch, business establishment or other fixed establishment
outside the United Kingdom; and
(c) no part of its purpose or objects in being party to the Transaction
Documents and the transactions contemplated by them has been, is or
will be an 'unallowable purpose' within the meaning of paragraph 13 of
Schedule 9 to the Finance ▇▇▇ ▇▇▇▇, paragraph 23 of Schedule 26 to the
Finance ▇▇▇ ▇▇▇▇ or Regulation 12 of the Taxation of Securitisation
Companies Regulations 2006.
13.15 REPETITION
The representations in this Clause 13 shall survive the execution of
this Agreement and the making of each Loan Tranche under this
Agreement, and shall be repeated by Funding 2 on each Closing Date
relating to the making of each Loan Tranche by reference to the facts
and circumstances then existing.
14. COVENANTS
14.1 DURATION
The undertakings in this Clause 14 shall remain in force from the date
of this Agreement for so long as any amount is or may be outstanding
under this Agreement.
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14.2 INFORMATION
Funding 2 shall supply to the Funding 2 Security Trustee and the
Rating Agencies:
(a) as soon as the same are available its audited accounts for
that Financial Year; and
(b) promptly, such other information in connection with the
matters contemplated by the Transaction Documents, as the
Funding 2 Security Trustee or the Rating Agencies may
reasonably request.
14.3 NOTIFICATION OF DEFAULT
Funding 2 shall notify the Master Issuer and the Funding 2 Security
Trustee of any Master Intercompany Loan Event of Default (and the
steps, if any, being taken to remedy it) promptly upon Funding 2
becoming aware of its occurrence.
14.4 AUTHORISATIONS
Funding 2 shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) upon request, supply certified copies to the Master Issuer and
the Funding 2 Security Trustee of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability
of, any Transaction Document to which it is a party.
14.5 PARI PASSU RANKING
Funding 2 shall procure that its obligations under the Transaction
Documents do and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations
mandatorily preferred by law.
14.6 NEGATIVE PLEDGE
Funding 2 shall not create or permit to subsist any Security Interest
over or in respect of any of its assets (unless arising by operation
of law) other than as provided pursuant to the Transaction Documents.
14.7 DISPOSALS
Funding 2 shall not, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily, sell, lend, assign, transfer, lease, part with or
otherwise dispose of or grant any option over all or any part of its
assets, properties or undertakings or any interest, estate, right,
title or benefit therein, other than as provided for pursuant to the
Transaction Documents.
14.8 MERGERS AND ACQUISITIONS
(a) Funding 2 shall not enter into any amalgamation, demerger, merger or
reconstruction.
(b) Funding 2 shall not acquire any assets or business or make any
investments other than as contemplated in the Transaction Documents.
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14.9 LENDING AND BORROWING
(a) Except as provided or contemplated under the Transaction Documents,
Funding 2 shall not make any loans or provide any other form of credit
to any person.
(b) Funding 2 shall not give any guarantee or indemnity to or for the
benefit of any person in respect of any obligation of any other person
or enter into any document under which Funding 2 assumes any liability
of any other person.
(c) Funding 2 shall not incur any indebtedness in respect of any borrowed
money other than under the Transaction Documents.
14.10 SHARES AND DIVIDENDS
Funding 2 shall not:
(a) declare or pay any dividend or make any other distribution in
respect of any of its shares other than in accordance with the
Funding 2 Deed of Charge;
(b) issue any further shares or alter any rights attaching to its
issued shares as at the date hereof; or
(c) repay or redeem any of its share capital.
14.11 CHANGE OF BUSINESS
(a) Funding 2 shall not carry on any business or engage in any activity
other than as contemplated by the Transaction Documents or which is
not incidental to or necessary in connection with any of the
activities in which the Transaction Documents provide or envisage that
Funding 2 will engage.
(b) Funding 2 shall not have any subsidiaries or subsidiary undertakings
as defined in the Companies ▇▇▇ ▇▇▇▇, as amended.
(c) Funding 2 shall not have any employees or own any premises.
14.12 TAX
(a) Funding 2 shall not apply to become part of any group for the purposes
of sections 43A-D of the Value Added Tax Act 1994 (including any other
legislative provisions supplementing the same) with the Master Issuer
unless required to do so by law.
(b) If Funding 2 falls within the Securitisation Tax Regime, Funding 2
shall take reasonable steps to ensure that it does not fall outside
the Securitisation Tax Regime.
14.13 UNITED STATES ACTIVITIES
Funding 2 will not engage in any activities in the United States
(directly or through agents), will not derive any income from United
States sources as determined under United States income tax principles
and will not hold any property if doing so would cause it to be
engaged or deemed to be engaged in a trade or business within the
United States as determined under United States tax principles.
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15. DEFAULT
15.1 MASTER INTERCOMPANY LOAN EVENTS OF DEFAULT
Each of the events set out in Clause 15.2 to Clause 15.8 (inclusive)
is a MASTER INTERCOMPANY LOAN EVENT OF DEFAULT (whether or not caused
by any reason whatsoever outside the control of Funding 2 or any other
person).
15.2 NON-PAYMENT
Subject to Clause 5.1, Funding 2 does not pay on the due date or such
failure to pay continues for a period of three London Business Days
after such due date any amount payable by it under this Agreement or
any other loan agreement entered into by Funding 2 at the place at and
in the currency in which it is expressed to be payable.
15.3 BREACH OF OTHER OBLIGATIONS
Funding 2 does not comply in any material respect (in the opinion of
the Funding 2 Security Trustee) with any of its obligations under the
Transaction Documents to which it is a party (other than those
referred to in Clause 15.2) and such non-compliance, if capable of
remedy, is not remedied promptly and in any event within twenty London
Business Days of Funding 2 becoming aware of the non-compliance or
receipt of a written notice from the Funding 2 Security Trustee
requiring Funding 2's non-compliance to be remedied.
15.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Transaction Document or in any document delivered
by or on behalf of Funding 2 under or in connection with any
Transaction Document is incorrect in any material respect (in the
opinion of the Funding 2 Security Trustee) when made or deemed to be
made or repeated.
15.5 INSOLVENCY
Any corporate action is taken by Funding 2, or any legal proceedings
are started, for the winding-up, dissolution, administration or
appointment of a liquidator, receiver, administrator, administrative
receiver, trustee or similar officer of Funding 2 or of any or all of
Funding 2's revenues and assets or any application is made or petition
is lodged for the making of an administration order in relation to
Funding 2.
15.6 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset
of Funding 2 and is not discharged within twenty London Business Days.
15.7 UNLAWFULNESS
It is or becomes unlawful for Funding 2 to perform any of its
obligations under any Transaction Document.
15.8 THE FUNDING 2 DEED OF CHARGE
The Funding 2 Deed of Charge is no longer binding on or enforceable
against Funding 2 or effective to create the security intended to be
created by it.
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15.9 OWNERSHIP
The entire issued share capital of Funding 2 ceases to be legally and
beneficially owned and controlled by Holdings.
15.10 ACCELERATION OF MASTER INTERCOMPANY LOAN
Upon the occurrence of a Master Intercompany Loan Event of Default
which is continuing unremedied and/or has not been waived, the Funding
2 Security Trustee may by written notice to Funding 2 (a MASTER
INTERCOMPANY LOAN ACCELERATION NOTICE) which is copied to each of the
Funding 2 Secured Creditors and the Mortgages Trustee:
(a) declare all Loan Tranches made under this Agreement to be
immediately due and payable, whereupon the same shall, subject
to Clause 15.11, become so payable together with accrued
interest thereon and any other sums then owed by Funding 2
under this Agreement; and/or
(b) declare the Loan Tranches to be due and payable on demand of
the Funding 2 Security Trustee.
15.11 REPAYMENT OF MASTER INTERCOMPANY LOAN ON ACCELERATION
Upon the Funding 2 Security Trustee declaring the Loan Tranches to be
immediately due and payable pursuant to Clause 15.10, the amount due
and payable in respect of each Loan Tranche shall be paid by Funding 2
without penalty or premium but subject to Clause 16.
16. DEFAULT INTEREST AND INDEMNITY
16.1 DEFAULT LOAN INTEREST PERIODS
If any sum due and payable by Funding 2 under this Agreement is not
paid on the due date for payment in accordance with this Agreement or
if any sum due and payable by Funding 2 under any judgment or decree
of any court in connection with this Agreement is not paid on the date
of such judgment or decree, the period beginning on such due date or,
as the case may be, the date of such judgment or decree and ending on
the date upon which the obligation of Funding 2 to pay such sum (the
balance thereof for the time being unpaid being herein referred to as
an UNPAID SUM) is discharged shall be divided into successive periods,
each of which (other than the first) shall start on (and include) a
Funding 2 Interest Payment Date and end on (but exclude) the next
Funding 2 Interest Payment Date unless the Funding 2 Security Trustee
otherwise provides having regard to when such unpaid sum is likely to
be paid.
16.2 DEFAULT INTEREST
During each such period relating to an unpaid sum as is mentioned in
this Clause 16 an unpaid sum shall bear interest at the rate per annum
which the Master Issuer, acting reasonably, determines and certifies
to Funding 2 and the Funding 2 Security Trustee will be sufficient to
enable it to pay interest and other costs and indemnities on or in
respect of any amount which the Master Issuer does not pay as a result
of Funding 2's non-payment under this Agreement, as a result of such
unpaid sum not being paid to it.
16.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 16.2 in respect of
an unpaid sum shall be due and payable and shall be paid by Funding 2
at the end of the period by reference to which it is calculated.
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16.4 BROKEN PERIODS
Funding 2 shall forthwith on demand indemnify the Master Issuer
against any loss or liability that the Master Issuer incurs as a
consequence of any payment of principal being received from any source
otherwise than on a Funding 2 Interest Payment Date or an overdue
amount being received otherwise than on its due date.
16.5 FUNDING 2'S PAYMENT INDEMNITY
Funding 2 undertakes to indemnify the Master Issuer:
(a) against any cost, claim, loss, expense (including legal fees)
or liability together with any amount in respect of
Irrecoverable VAT thereon (other than by reason of the
negligence or wilful default by the Master Issuer) which it
may sustain or incur as a consequence of the occurrence of any
Master Intercompany Loan Event of Default or any default by
Funding 2 in the performance of any of the obligations
expressed to be assumed by it in any of the Transaction
Documents (other than by reason of negligence or wilful
default on the part of the Master Issuer or prior breach by
the Master Issuer of the terms of any of the Transaction
Documents to which it is a party);
(b) against any loss it may suffer as a result of its funding a
Loan Tranche requested by Funding 2 under the Master
Intercompany Loan Agreement but not made; and
(c) against any other loss or liability (other than by reason of
the negligence or default of the Master Issuer or breach by
the Master Issuer of the terms of any of the Transaction
Documents to which it is a party (except where such breach is
caused by the prior breach of Funding 2) or loss of profit) it
may suffer by reason of having made a Loan Tranche available
or entering into this Agreement or enforcing any security
granted pursuant to the Funding 2 Deed of Charge.
17. PAYMENTS
17.1 PAYMENT
(a) Subject to Clause 5, all amounts of interest and principal to be paid
to the Master Issuer under this Agreement shall be paid in Sterling
for value by Funding 2 to the Master Issuer Transaction Account.
(b) On each date on which this Agreement requires any amount other than
the amounts specified in Clause 17.1 to be paid by Funding 2, Funding
2 shall, save as provided otherwise herein, make the same available to
the Master Issuer by payment in Sterling in immediately available,
freely transferable, cleared funds to the Master Issuer Transaction
Account.
17.2 ALTERNATIVE PAYMENT ARRANGEMENTS
If, at any time, it shall become impracticable (by reason of any
action of any governmental authority or any change in law, exchange
control regulations or any similar event) for Funding 2 to make any
payments under this Agreement in the manner specified in Clause 17.1,
then Funding 2 shall make such alternative arrangements for the
payment direct to the Master Issuer of amounts due under this
Agreement as are acceptable to the Funding 2 Security Trustee.
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17.3 NO SET-OFF
All payments required to be made by Funding 2 under this Agreement
shall be calculated without reference to any set-off or counterclaim
and shall be made free and clear of, and without any deduction for or
on account of, any set-off or counterclaim.
18. ENTRENCHED PROVISIONS
Each of Funding 2, the Master Issuer and the Funding 2 Security
Trustee acknowledge and agree that Funding 2 may from time to time
enter into New Funding 2 Loan Agreements and that the obligation of
Funding 2 to repay the Loan Tranches made under this Agreement will
rank pari passu with the obligations of Funding 2 to repay any such
other loans made under such New Funding 2 Loan Agreements. If Funding
2 intends to enter into a New Funding 2 Loan Agreement then the
provisions of this Agreement may be varied (with the consent of the
parties to this Agreement to the extent necessary to reflect the terms
of such New Funding 2 Loan Agreement) in accordance with Clause 18 of
the Funding 2 Deed of Charge PROVIDED THAT no variation shall be made
to any of the following terms without the prior written consent of the
Funding 2 Secured Creditors and the Rating Agencies:
(a) the determination of the Loan Tranche Rates of Interest;
(b) Clause 5 (Limited Recourse);
(c) Clause 10 (Taxes); and
(d) Clause 19.5 (Funding 2 Security Trustee).
19. FURTHER PROVISIONS
19.1 EVIDENCE OF INDEBTEDNESS
In any proceeding, action or claim relating to a Loan Tranche a
statement as to any amount due to the Master Issuer under such Loan
Tranche which is certified as being correct by an officer of the
Funding 2 Security Trustee shall, unless otherwise provided in this
Agreement, be prima facie evidence that such amount is in fact due and
payable.
19.2 ENTIRE AGREEMENT, AMENDMENTS AND WAIVER AND RIGHTS CUMULATIVE
(a) This Agreement sets out the entire agreement and understanding between
the parties with respect to the subject matter of this Agreement
superseding all prior oral or written understandings other than the
other Transaction Documents.
(b) Subject to Clause 18, no amendment or waiver of any provision of this
Agreement nor consent to any departure by any of the parties therefrom
shall in any event be effective unless the same shall be in writing
and signed by each of the parties hereto. In the case of a waiver or
consent, such waiver or consent shall be effective only in the
specific instance and as against the party or parties giving it for
the specific purpose for which it is given.
(c) The respective rights of each of the parties to this Agreement are
cumulative and may be exercised as often as they consider appropriate.
No failure on the part of any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right.
The remedies in this Agreement are cumulative and not exclusive of any
remedies provided by law.
21
19.3 ASSIGNMENT
Neither the Master Issuer nor Funding 2 may assign or transfer any of
its respective rights and obligations under this Agreement PROVIDED
THAT:
(a) the Master Issuer may assign its rights, title, interest or
benefit hereunder to the Master Issuer Security Trustee
pursuant to the Master Issuer Deed of Charge; and
(b) Funding 2 may assign its rights hereunder to the Funding 2
Security Trustee pursuant to the Funding 2 Deed of Charge.
19.4 SEVERABILITY
If a provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any
other provision of this Agreement; or
(b) the validity or enforceability in other jurisdictions of that
or any other provision of this Agreement.
19.5 FUNDING 2 SECURITY TRUSTEE
The Funding 2 Security Trustee shall have no responsibility for any of
the obligations of the Master Issuer or any other party to this
Agreement (other than itself). For the avoidance of doubt, the parties
to this Agreement acknowledge that the rights and obligations of the
Funding 2 Security Trustee under this Agreement are governed by the
Funding 2 Deed of Charge.
19.6 COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and
the same instrument.
19.7 THIRD PARTY RIGHTS
A person who is not a party to this Agreement may not enforce any of
its terms under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇, but
this shall not affect any right or remedy of a third party which
exists or is available apart from that Act.
20. REDENOMINATION
Each obligation under this Agreement which has been denominated in
Sterling shall be redenominated in Euro in accordance with applicable
legislation passed by the European Monetary Union upon such
redenomination of the Notes.
22
21. NOTICES
Any notices to be given pursuant to this Agreement to any of the
parties hereto shall be sufficiently served if sent by prepaid first
class post, by hand or facsimile transmission and shall be deemed to
be given (in the case of facsimile transmission) when despatched,
(where delivered by hand) on the day of delivery if delivered before
5.00 p.m. 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 Permanent Master Issuer
PLC, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the Secretary with a
copy to Bank of Scotland plc, Treasury Division, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇)
for the attention of Head of Mortgage Securitisation and
Covered Bonds;
(b) in the case of Funding 2: to Permanent Funding (No. 2)
Limited, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the Secretary
with a copy to Bank of Scotland plc, Treasury Division, ▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (0)20 7574
8303) for the attention of Head of Mortgage Securitisation and
Covered Bonds;
(c) in the case of the Funding 2 Security Trustee: to the Bank of
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇), for the attention of Corporate Trust
Administration - ABS/MBS); and
(d) in the case of Agent Bank, to Citibank, N.A., Citigroup
Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇,
(facsimile number 020 7508 3881) for the attention of Rate
Fixing,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by
any party to the others by written notice in accordance with the
provisions of this Clause 21. All notices served under this Agreement
shall be simultaneously copied to the Funding 2 Security Trustee by
the person serving the same.
22. GOVERNING LAW AND SUBMISSION TO JURISDICTION
22.1 This Agreement is governed by the laws of England.
22.2 Each party to this Agreement hereby irrevocably submits to the
exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English courts are an
inconvenient forum for the maintenance or hearing of such action or
proceeding.
IN WITNESS WHEREOF the parties have executed and delivered this Agreement as a
deed on the day and year first before written.
23
SCHEDULE 1
CONDITIONS PRECEDENT
1. AUTHORISATIONS
1.1 A copy of the memorandum and articles of association and certificate
of incorporation of Funding 2.
1.2 A copy of a resolution of the board of directors of Funding 2
authorising the entry into, execution and performance of the Loan
Tranche Supplement and each of the relevant Transaction Documents
related to the relevant Loan Tranche Supplement to which Funding 2 is
a party and authorising specified persons to execute those on its
behalf.
1.3 A certificate of a director of Funding 2 certifying:
(a) that each document delivered under this paragraph 1 of
Schedule 1 is correct, complete and in full force and effect
as at a date no later than the date of the Loan Tranche
Supplement and undertaking to notify the Funding 2 Security
Trustee if that position should change prior to the relevant
Closing Date; and
(b) as to the identity and specimen signatures of the directors
and signatories of Funding 2.
2. LEGAL OPINION
Legal opinions of:
(a) ▇▇▇▇▇ & ▇▇▇▇▇ LLP, English and U.S. legal advisers to the
Seller, the Master Issuer and Funding 2, addressed to the
Funding 2 Security Trustee; and
(b) Shepherd and Wedderburn LLP, Scottish legal advisers to the
Seller, the Master Issuer and Funding 2, addressed to the
Funding 2 Security Trustee.
3. TRANSACTION DOCUMENTS
Duly executed copies of:
3.1 Bank Account Agreement;
3.2 Cash Management Agreement;
3.3 Controlling Beneficiary Deed;
3.4 Corporate Services Agreement;
3.5 Data Processor Agreement;
3.6 Funding 2 Deed of Charge;
3.7 Funding 2 Guaranteed Investment Contract;
3.8 Funding 2 Start-Up Loan Agreements (if applicable);
3.9 Funding 2 Swap Agreement;
24
3.10 Master Definitions and Construction Schedule;
3.11 Master Intercompany Loan Agreement;
3.12 Master Issuer Bank Account Agreement;
3.13 Master Issuer Cash Management Agreement;
3.14 Master Issuer Corporate Services Agreement;
3.15 Master Issuer Deed of Charge;
3.16 Master Issuer Master Definitions Schedule;
3.17 Master Issuer Paying Agent and Agent Bank Agreement;
3.18 Master Issuer Post-Enforcement Call Option Agreement;
3.19 Master Issuer Start-up Loan Agreement (dated the relevant Closing
Date) (if applicable);
3.20 Master Issuer Subordinated Loan Agreement (dated the relevant Advance
Date) (if applicable);
3.21 Master Issuer Swap Agreements;
3.22 Master Issuer Trust Deed;
3.23 Mortgage Sale Agreement;
3.24 Mortgages Trust Deed;
3.25 Mortgages Trustee Guaranteed Investment Contract;
3.26 Seller Mortgages Trust Assignment Agreement; and
3.27 Servicing Agreement.
25
SCHEDULE 2
FORM OF LOAN TRANCHE NOTICE
From: Permanent Funding (No. 2) Limited (FUNDING 2)
To: Permanent Master Issuer plc (the MASTER ISSUER)
Copy: The Bank of New York (the FUNDING 2 SECURITY TRUSTEE)
Dear Sirs,
1. We refer to the agreement between, inter alios, ourselves, the Master
Issuer and the Funding 2 Security Trustee (as from time to time
amended, varied, novated or supplemented (the MASTER INTERCOMPANY LOAN
AGREEMENT)) dated 17 October 2006 whereby a Master Intercompany Loan
Facility was made available to us. Terms defined in the Master
Intercompany Loan Agreement shall have the same meaning in this
notice.
2. We hereby give you notice that, pursuant to the Master Intercompany
Loan Agreement and upon the terms and subject to the conditions
contained therein, we wish the following Loan Tranches to be made
available to us on [specify Closing Date]:
(a) Issue [*] [*] [AAA/AA/A/BBB/BB/Subordinated/Start-Up] Loan
Tranche to be funded by the Series [*] [Class [*] Notes/Master
Issuer Subordinated Loan/Master Issuer Start-Up Loan on the
[Closing Date:/Advance Date]
(i) principal amount and currency of [*];
(ii) specified Currency Exchange Rate of GBP 1.00/[*];
(iii) Principal amount (in Sterling) available to be drawn
in respect of such Loan Tranche of [POUND][*];
[repeat for all applicable Loan Tranches]
3. The interest rate(s) applicable to each Loan Tranche will be as
follows:
(a) Issue [*] [*] [AAA/AA/A/BBB/BB/Master Issuer
Subordinated/Master Issuer Start-Up] Loan Tranche: [*] [Set
out relevant interest rate(s)]
[repeat for all applicable Loan Tranches]
Yours faithfully,
For and on behalf of
PERMANENT FUNDING (NO. 2) LIMITED
26
SCHEDULE 3
FORM OF LOAN TRANCHE SUPPLEMENT
FORM OF LOAN TRANCHE SUPPLEMENT
[*] - [*]
PERMANENT FUNDING (NO. 2) LIMITED
as Funding 2
PERMANENT MASTER ISSUER PLC
as Master Issuer
THE BANK OF NEW YORK
as Funding 2 Security Trustee
and
CITIBANK, N.A.
as Agent Bank
27
THIS LOAN TRANCHE SUPPLEMENT is dated [*]
BETWEEN:
(1) PERMANENT FUNDING (NO. 2) LIMITED (registered number 4441772), a
private limited company incorporated under the laws of England and
Wales whose registered office is at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ (as FUNDING 2);
(2) PERMANENT MASTER ISSUER PLC (registered number 5922774), a public
limited company incorporated under the laws of England and Wales whose
registered office is at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (as
MASTER ISSUER);
(3) THE BANK OF NEW YORK, acting through its office at One Canada Square,
London E14 5AL (in its capacity as FUNDING 2 SECURITY TRUSTEE which,
expression shall include such company and all other persons or
companies for the time being acting as security trustee (or
co-trustee) pursuant to the terms of the Funding 2 Deed of Charge);
and
(4) CITIBANK, N.A., acting through its office at Citigroup Centre, Canada
Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as AGENT BANK).
This document constitutes the Loan Tranche Supplement relating to the Loan
Tranches described herein. Terms used herein shall be deemed to be defined as
such for the purposes of the Master Intercompany Loan Agreement entered into
between the parties hereto on 17 October 2006 as amended and restated on 1
March 2007 and [*] November 2007. This Loan Tranche Supplement contains the
final terms of the Loan Tranches identified and described herein, is
supplemental to and must be read in conjunction with the Master Intercompany
Loan Agreement.
[TO BE REPEATED FOR EACH LOAN TRANCHE FUNDED BY A SERIES AND CLASS OF NOTES A
MASTER ISSUER SUBORDINATED LOAN AND/OR A START-UP LOAN DATED THE SAME CLOSING
DATE AND/OR ADVANCE DATE]
LOAN TRANCHE: The Series [*] [Class [*] Notes/Master Issuer Subordinated Loan
Advance/Master Issuer Start-Up Loan] will fund the [[*]-[*]
[AAA/AA/A/BBB/BB/Master Issuer Subordinated/Master Issuer Start-Up]] Loan
Tranche which shall have the following terms:
1. Borrower: Permanent Funding (No. 2) Limited
2. Lender: Permanent Master Issuer plc
3. (a) Loan Tranche Rating: [Not Applicable/l]
(b) Series Number: [*]
4. Initial Outstanding Principal
Balance: [*]
5. (a) [Closing Date/Advance
Date]: [*]
(b) Loan Tranche Interest
Commencement Date: [*]
(c) Loan Tranche Interest
Determination Dates: [*]
6. Final Repayment Date: [*]
28
7. Loan Payment Dates: [*]
8. Relevant Margin: [*]
9. Relevant Screen Rate: [*]
10. Call Option Date: [Not Applicable/The Funding 2
Payment Date occurring in (specify
date)]
11. Step-Up Date: [Not Applicable/The Funding 2
Payment Date occurring in [specify
date]]
12. Relevant Margin following
Step-Up Date: [Not Applicable/[*]]
13. Redemption/Payment Basis: [Bullet Redemption]
[Scheduled Amortisation]
[Pass-through]
[Not Applicable]
14. Change of Redemption/Payment
Basis: [Specify details of any provision
for change of Loan Tranches into
another Redemption/Payment Basis
15. Details relating to Bullet
Loan Tranche: [Applicable/Not Applicable]
[if not applicable, delete the
remaining subparagraphs of this
paragraph]
(a) Relevant Accumulation
Amount: [*]
(b) Bullet Redemption
Date: [*]
16. Details relating to Scheduled [Applicable/Not Applicable]
Amortisation Loan Tranche:
[if the Scheduled Amortisation
Loan Tranche is applicable,
specify the Scheduled Amortisation
Dates and Scheduled Amortisation
Instalments below]
[if not applicable, delete the
remaining subparagraphs of this
paragraph]
(a) Scheduled
Amortisation Dates: Funding 2 Payment Dates occurring
in [*]
(b) Relevant Accumulation
Amounts: [*]
17. Details relating to [Applicable/Not Applicable]
Pass-through Loan Tranches:
[If the Pass-through Loan Tranche
is applicable, specify the Funding
2 Interest Payment Date following
which the Pass-Through Loan
Tranches will be due]
29
18. Other terms and special
conditions: [Not Applicable/give details]
30
CONFIRMATIONS:
Funding 2 confirms that:
(a) no Master Intercompany Loan Event of Default has occurred and is
continuing which has not been waived, or would result from the making
of such Loan Tranche;
(b) the representations and warranties set out in Clause 13 of the Master
Intercompany Loan Agreement are true on and as of the Closing Date
specified in this Loan Tranche Supplement by reference to the facts
and circumstances then existing; and
(c) as of the Closing Date specified in this Loan Tranche Supplement,
there will be no debit balance on the Funding 2 Principal Deficiency
Ledger after the application of the Funding 2 Available Revenue
Receipts on the next Funding 2 Interest Payment Date.
The Master Issuer confirms that no Note Event of Default has occurred and is
continuing which has not been waived, or would result from the making of such
Loan Tranche.
31
EXECUTION PAGE
FOR LOAN TRANCHE SUPPLEMENT
FUNDING 2
EXECUTED as a DEED by )
PERMANENT FUNDING (NO. 2) LIMITED )
acting by two directors )
MASTER ISSUER
EXECUTED as a DEED by )
PERMANENT MASTER ISSUER PLC )
acting by two directors )
FUNDING 2 SECURITY TRUSTEE
EXECUTED as a DEED for and on behalf of: )
)
THE BANK OF NEW YORK )
by its authorised signatory )
Authorised Signatory )
Witness's signature )
Name:
Address:
AGENT BANK
EXECUTED as a DEED by an authorised
signatory for )
and on behalf of: )
CITIBANK, N.A. )
Authorised Signatory )
Witness's signature )
Name:
Address:
32
SCHEDULE 4
SOLVENCY CERTIFICATE
PERMANENT FUNDING (NO. 2) LIMITED (THE COMPANY)
To: Permanent Master Issuer plc (the MASTER ISSUER)
Copy: The Bank of New York (the FUNDING 2 SECURITY TRUSTEE)
We the undersigned HEREBY CERTIFY, that (i) having made all appropriate
searches and investigations of the Company's books and records and the
Company's accounts (both management and those required by law); and (ii) the
officers of the Company having duly considered the provisions of the insolvency
laws of the United Kingdom (including, without limitation, the provisions of
sections 123 and 238 to 243 and 423 of the Insolvency ▇▇▇ ▇▇▇▇, as amended (the
ACT) and the provisions of the equivalent common law of Scotland regarding
gratuitous alienations and fraudulent preferences) we have determined that:
(a) the Company is not unable to pay its debts within the meaning of
section 123 of the Act and would not become unable to do so in
consequence of entering into the Transaction Documents to which it is
a party or making any drawing or granting any security under the
Transaction Documents to which it is a party, and the Company's assets
currently exceed its liabilities (taking into account its actual,
contingent and prospective liabilities) and will continue to do so
notwithstanding the entry into by it of the Transaction Documents and
the making of any drawing or the granting of any security under the
Transaction Documents to which it is a party;
(b) no execution or other process issued on a judgment, decree or order of
any court in favour of a creditor of the Company remains unsatisfied
in whole or in part;
(c) to the best of our knowledge and belief no corporate action has been
taken or is pending, no other steps have been taken and no legal
proceedings have been commenced or are threatened or are pending for
(i) the winding-up, liquidation, dissolution, administration or
reorganisation of the Company; or (ii) the Company to enter into any
composition or arrangement with its creditors generally; or (iii) the
appointment of a receiver, administrator, administrative receiver,
trustee or similar officer in respect of the Company or any of its
property, undertaking or assets. No event equivalent to any of the
foregoing has occurred in or under the laws of any relevant
jurisdiction;
(d) neither the entry into of the Transaction Documents to which it is a
party nor the making of any drawing nor granting of security under the
Transaction Documents to which it is a party would be a transaction at
an undervalue within the meaning of section 238 of the Act, since the
value of any consideration received by the Company as a result of such
drawing and/or grant of security would not be significantly less than
the value of any consideration provided by the Company under the
Transaction Documents to which it is a party;
(e) the entry into of the Transaction Documents to which it is a party,
any drawing made by the Company under or pursuant to the Transaction
Documents to which it is a party, and any security granted by the
Company under or pursuant to the Transaction Documents to which it is
a party will be entered into or made, as the case may be, by the
Company, in good faith and for the purpose of carrying on its
business, and there are reasonable grounds for believing that such
entry into of such Transaction Documents, such drawings and grants of
security would benefit the Company;
(f) neither the entry into the Transaction Documents to which it is a
party nor the making of any drawing nor the granting of any security
under the Transaction Documents to which it is a party
33
would be a gratuitous alienation under section 242 of the Act (and
equivalent provisions of common law of Scotland), since such drawing
and/or grant of security was made for adequate consideration;
(g) in entering into the Transaction Documents to which it is a party,
making a drawing under or pursuant to the Transaction Documents to
which it is a party and/or granting security under or pursuant to the
Transaction Documents to which it is a party the Company has no desire
to give a preference to any person as contemplated by section 239 of
the Act nor is it the purpose of the Company to put assets beyond the
reach of a person who is making, or may at some time make, a claim
against the Company or of otherwise prejudicing the interests of such
a person in relation to the claim which he is making or may make;
(h) in entering into the Transaction Documents to which it is a party,
making a drawing under or pursuant to the Transaction Documents to
which it is a party and/or granting security under or pursuant to the
Transaction Documents to which it is a party, the Company has not and
will not breach any provision or exceed any powers contained in its
Memorandum and Articles of Association; and
(i) the transaction contemplated by the Transaction Documents constitute
reciprocal obligations of the Company with the other parties thereto
for the purposes of section 243 of the Act (and equivalent provisions
of common law of Scotland) and neither the entry into the Transaction
Documents to which it is a party nor the making of any drawing nor the
granting of any security under or pursuant to the Transaction
Documents to which it is a party is or will be collusive for the
purposes of prejudicing the general body of creditors of the Company.
Terms defined in the amended and restated master definitions and construction
schedule signed by, amongst others, the Master Issuer and the Funding 2
Security Trustee and dated [*] November 2007 (as the same may be amended,
varied or supplemented from time to time) shall have the same respective
meanings when used in this Certificate.
DATED [*]
Signed for and on behalf of Permanent Funding (No. 2) Limited
.......................................
Director
.......................................
Director/Secretary
34
SIGNATORIES
FUNDING 2
EXECUTED as a DEED by ) /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
PERMANENT FUNDING (NO. 2) LIMITED )
acting by two directors ) /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MASTER ISSUER
EXECUTED as a DEED by ) /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
PERMANENT MASTER ISSUER PLC )
acting by two directors ) /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FUNDING 2 SECURITY TRUSTEE
EXECUTED as a DEED for and on behalf of: ) /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
THE BANK OF NEW YORK )
by its authorised signatory )
Authorised Signatory )
Witness's signature /S/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address: ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
AGENT BANK
EXECUTED as a DEED by an authorised
signatory for )
and on behalf of:
CITIBANK, N.A. )
Authorised Signatory ) /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Witness's signature /S/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address: ▇▇▇▇▇ & OVERY LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
35