EXHIBIT 4.4
Dated [22] September 2004
GRANITE MORTGAGES 04-3 PLC
as Current Issuer
THE BANK OF NEW YORK
as Note Trustee
- and -
OTHERS
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ISSUER DEED OF CHARGE
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SIDLEY AUSTIN BROWN & WOOD
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
CONTENTS
1. Interpretation....................................................................2
2. Covenant to Pay and to Perform....................................................3
3. Current Issuer Security...........................................................4
4. Release of Current Issuer Charged Property........................................9
5. Declaration of Trust.............................................................10
6. Restrictions on Exercise of Certain Rights.......................................10
7. Enforcement......................................................................14
8. Upon Enforcement.................................................................16
9. Receiver.........................................................................19
10. Further Assurance and Power of Attorney..........................................22
11. Crystallisation..................................................................23
12. Provisions relating to the Security..............................................25
13. Protection of Third Parties......................................................26
14. Set-Off..........................................................................27
15. Representations and Covenants....................................................27
16. Note Trustee Provisions..........................................................32
17. Modification and Waiver..........................................................33
18. Miscellaneous Provisions.........................................................34
19. Rights cumulative................................................................35
20. Assignment.......................................................................35
21. Non Petition Covenant; Corporate Obligations.....................................35
22. Notices..........................................................................36
23. Third Party Rights...............................................................37
24. Execution in Counterparts; Severability..........................................37
25. Governing Law and Jurisdiction; Appropriate Forum................................38
EXECUTION PAGE...........................................................................39
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SCHEDULE 1...............................................................................42
SCHEDULE 2...............................................................................45
SCHEDULE 3...............................................................................51
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THIS DEED OF CHARGE is made on [22] September 2004
BETWEEN:
(1) GRANITE MORTGAGES 04-3 PLC (registered number 5168395) a public limited
company incorporated under the laws of England and Wales whose
registered office is at Fifth Floor, 100 Wood Street, London EC2V 7EX as
Current Issuer;
(2) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 48th Floor, One Canada Square, London E14 5AL, United
Kingdom, in its capacity as Note Trustee;
(3) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA, in its capacity as Principal Paying Agent;
(4) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA, in its capacity as Agent Bank;
(5) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA, in its capacity as Registrar;
(6) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA, in its capacity as Transfer Agent;
(7) CITIBANK, N.A., acting through its office at 5 Carmelite Street, London
EC4Y 0PA, in its capacity as Account Bank;
(8) CITIBANK, N.A., acting through its office at 111 Wall Street, 14th
Floor, Zone 3, New York, N.Y. 10043, U.S.A., in its capacity as US
Paying Agent;
(9) NORTHERN ROCK PLC (registered number 03273685) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL, in its
capacity as Current Issuer Cash Manager;
(10) NORTHERN ROCK PLC (registered number 03273685) a public limited company
incorporated under the laws of England and Wales whose registered office
is at Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL, in its
capacity as Basis Rate Swap Provider;
(11) [o] acting through its office at [o] in its capacity as Dollar Currency
Swap Provider;
(12) [o] acting through its office at [o], in its capacity as Euro Currency
Swap Provider;
(13) [o] acting through its office at [o], in its capacity as Interest Rate
Swap Provider; and
(14) 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 Fifth Floor, 100 Wood Street, London EC2V
7EX as the Corporate Services Provider.
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WHEREAS:
(A) This Deed secures and will secure, inter alia, the Current Issuer
Secured Obligations.
(B) The Current Issuer will on the date of this Current Issuer Deed of
Charge issue the Current Issuer Notes pursuant to the Current Issuer
Trust Deed.
(C) The Paying Agents, the Agent Bank, the Registrar and the Transfer Agent
have agreed to provide certain agency services on behalf of the Current
Issuer for the benefit of the Noteholders on the terms set out in the
Current Issuer Paying Agent and Agent Bank Agreement.
(D) The Current Issuer Cash Manager has agreed to act as cash manager and to
provide certain administration and cash management services to the
Current Issuer on the terms set out in the Current Issuer Cash
Management Agreement.
(E) The Account Bank has agreed to provide certain bank account services to
the Current Issuer on the terms set out in the Current Issuer Bank
Account Agreement.
(F) The Dollar Currency Swap Provider has agreed to enter into
dollar/sterling currency swaps with the Current Issuer in relation to
Dollar Notes on the terms set out in the Current Issuer Dollar Currency
Swap Agreements.
(G) The Euro Currency Swap Provider has agreed to enter into euro/sterling
currency swaps with the Current Issuer in relation to the Euro Notes on
the terms set out in the Current Issuer Euro Currency Swap Agreements.
(H) The Basis Rate Swap Provider has agreed to enter into an interest rate
swap with the Current Issuer on the terms set out in the Current Issuer
Basis Rate Swap Agreement.
(I) The Interest Rate Swap Provider has agreed to enter into an Interest
Rate Swap with the Current Issuer on the terms set out in the Current
Issuer Interest Rate Swap Agreement.
(J) The Corporate Services Provider has agreed to act as corporate services
provider to, inter alios, the Current Issuer on the terms set out in the
Current Issuer Corporate Services Agreement.
(K) This Current Issuer Deed of Charge is supplemental to the Current Issuer
Trust Deed of even date herewith and made between the Current Issuer and
the Note Trustee relating to the issuance of the Current Issuer Notes.
NOW THIS DEED WITNESSES AS FOLLOWS:
1. Interpretation
1.1 Definitions: The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing as Appendix 1 to) the Master Definitions Schedule Ninth
Amendment Deed made on [22] September between, among others, the
Seller, Funding and the Mortgages Trustee, and
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(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen & Overy LLP
on [22] September 2004,
(as the same have been and may be amended, varied or supplemented from
time to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Agreement.
The Issuer Master Definitions Schedule specified above shall prevail to
the extent that it conflicts with the Master Definitions Schedule.
1.2 Construction: In this Current Issuer Deed of Charge, except where the
context otherwise requires:
(a) the terms of the Current Issuer Trust Deed and of any agreement in
existence at the date hereof between the parties hereto are
incorporated in this Current Issuer Deed of Charge but (unless
otherwise expressly provided for herein) only to the extent
required to ensure that any proposed disposition of the Current
Issuer Charged Property contained in this Current Issuer Deed of
Charge is a valid disposition in accordance with Section 2(1) of
the Law of Property (Miscellaneous Provisions) Act 1989;
(b) a reference in this Current Issuer Deed of Charge to any property,
assets, undertakings or rights includes, unless the context
otherwise requires, present and future property, assets,
undertakings or rights; and
(c) "this Current Issuer Deed of Charge" means this Current Issuer
Deed of Charge and all the Schedules hereto (as from time to time
modified and/or supplemented in accordance with the provisions set
out herein) and each other document or deed entered into pursuant
hereto (as from time to time modified/and or supplemented as
aforesaid) and expressed to be supplemental hereto.
2. Covenant to Pay and to Perform
Subject to the provisions of the Current Issuer Transaction Documents
(including, in the case of the Current Issuer Notes, to Clause 2
(Covenant to Repay etc.) of the Current Issuer Trust Deed), the Current
Issuer covenants with and undertakes to the Note Trustee for itself and
as trustee for the Current Issuer Secured Creditors that it will:
(a) duly and punctually pay and discharge all monies and liabilities
whatsoever which now are or at any time hereafter may (whether
before or after demand) become due and payable by the Current
Issuer to the Note Trustee (whether for its own account or as
trustee for the Current Issuer Secured Creditors) or to any of the
other Current Issuer Secured Creditors, whether actually or
contingently, under this Current Issuer Deed of Charge and/or any
of the other Current Issuer Transaction Documents (including
without limitation the Current Issuer Notes); and
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(b) observe, perform and satisfy all its other obligations and
liabilities under this Current Issuer Deed of Charge and/or any of
the other Current Issuer Transaction Documents (including without
limitation the Current Issuer Notes),
PROVIDED THAT every payment in respect of any Current Issuer Transaction
Document made to the relevant Current Issuer Secured Creditor in the
manner provided in such Current Issuer Transaction Document shall
operate in satisfaction pro tanto of the relative covenant and
undertaking by the Current Issuer in this Clause 2 (Covenant to Pay and
Perform).
3. Current Issuer Security
3.1 Funding Charged Property:
(a) The Current Issuer, by way of first fixed security for the payment
or discharge of the Current Issuer Secured Obligations, subject to
Clause 4 (Release of Current Issuer Charged Property), hereby
assigns to the Note Trustee, save to the extent that any of the
Current Issuer's rights and claims in respect thereof derive from
property which is situated in Jersey at any relevant time, all of
its right, title, benefit and interest and all claims, present and
future, in and to, the security and all property, assets and
rights and claims held on trust by the Security Trustee for the
payment or discharge of the relevant Funding Secured Obligations
pursuant to the Funding Deed of Charge including all rights to
receive payment of any amount which may become payable to the
Current Issuer thereunder and all rights to serve notices and/or
make demands thereunder and/or to take such steps as are required
to cause payments to become due and payable thereunder and all
rights of action in respect of any breach thereof and all rights
to receive damages or obtain relief in respect thereof and the
proceeds of any of the foregoing, TO HOLD the same unto the Note
Trustee absolutely; and
(b) To the intent that the Note Trustee shall have a security interest
in accordance with the Security Interests (Jersey) Law 1983 (the
"Jersey Security Law") (and as secured party for the purposes of
such law) for payment or discharge of the Current Issuer Secured
Obligations, subject to Clause 4 (Release of Current Issuer
Charged Property), the Current Issuer (as debtor for the purposes
of the Jersey Security Law) hereby assigns to the extent that the
same may be situate in Jersey at any relevant time to the Note
Trustee all of its right, title, benefit and interest and all
claims, present and future, in and to, the security and all
property, assets and rights and claims held on trust by the
Security Trustee for the payment or discharge of the relevant
Funding Secured Obligations pursuant to the Funding Deed of Charge
including all rights to receive payment of any amount which may
become payable to the Current Issuer thereunder and all rights to
serve notices and/or make demands thereunder and/or to take such
steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain relief in
respect thereof and the proceeds of any of the foregoing, TO HOLD
the same unto the Note Trustee absolutely.
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3.2 Contractual rights:
(a) The Current Issuer, by way of first fixed security for the payment
or discharge of the Current Issuer Secured Obligations, subject to
Clause 4 (Release of Current Issuer Charged Property), hereby
assigns to the Note Trustee, save to the extent that any of the
Current Issuer's rights and claims in respect thereof derive from
property which is situated in Jersey at any relevant time, all of
its right, title, benefit and interest, present and future, in, to
and under:
(i) the Current Issuer Intercompany Loan Agreement;
(ii) (to the extent not assigned pursuant to Clause 3.1(a)) the
Funding Deed of Charge (including, for the avoidance of
doubt, the Current Issuer Deed of Accession);
(iii) the Current Issuer Swap Agreements;
(iv) the Current Issuer Bank Account Agreement;
(v) the Current Issuer Cash Management Agreement;
(vi) the Current Issuer Paying Agent and Agent Bank Agreement;
(vii) the Current Issuer Trust Deed;
(viii) the Current Issuer Notes;
(ix) the Current Issuer Underwriting Agreement;
(x) the Current Issuer Subscription Agreement;
(xi) the Current Issuer Post-Enforcement Call Option Agreement;
(xii) the Current Issuer Corporate Services Agreement;
(xiii) any Swap Collateral Ancillary Document; and
(xiv) each other Current Issuer Transaction Document (other than
this Current Issuer Deed of Charge) entered into or to be
entered into by the Current Issuer pursuant to or in
connection with any of the documents set out in paragraphs
(i) through (xii) above (including any agreement entered
into by the Current Issuer as a replacement of any of the
above agreements upon the termination of such agreement),
including, without limitation, all rights to receive payment of
any amounts which may become payable to the Current Issuer
thereunder and all payments received by the Current Issuer
thereunder including, without limitation, all rights to serve
notices and/or make demands thereunder and/or to take such steps
as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain relief in
respect thereof and the proceeds of any of the foregoing, TO HOLD
the same unto the Note Trustee absolutely.
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(b) To the intent that the Note Trustee shall have a security interest
in accordance with the Jersey Security Law (and as secured party
for the purposes of such law) for payment or discharge of the
Current Issuer Secured Obligations, subject to Clause 4 (Release
of Current Issuer Charged Property), the Current Issuer (as debtor
for the purposes of the Jersey Security Law) hereby assigns to the
extent that the same may be situate in Jersey at any relevant time
to the Note Trustee all of its right, title, benefit and interest,
present and future, in, to and under:
(i) the Current Issuer Intercompany Loan Agreement;
(ii) (to the extent not assigned pursuant to Clause 3.1(a)) the
Funding Deed of Charge (including, for the avoidance of
doubt, the Current Issuer Deed of Accession);
(iii) the Current Issuer Swap Agreements;
(iv) the Current Issuer Bank Account Agreement;
(v) the Current Issuer Cash Management Agreement;
(vi) the Current Issuer Paying Agent and Agent Bank Agreement;
(vii) the Current Issuer Trust Deed;
(viii) the Current Issuer Notes;
(ix) the Current Issuer Underwriting Agreement;
(x) the Current Issuer Subscription Agreement;
(xi) the Current Issuer Post-Enforcement Call Option Agreement;
(xii) the Current Issuer Corporate Services Agreement;
(xiii) any Swap Collateral Ancillary Document; and
(xiv) each other Current Issuer Transaction Document (other than
this Current Issuer Deed of Charge) entered into or to be
entered into by the Current Issuer pursuant to or in
connection with any of the documents set out in paragraphs
(i) through (xii) above (including any agreement entered
into by the Current Issuer as a replacement of any of the
above agreements upon the termination of such agreement),
including, without limitation, all rights to receive payment of
any amounts which may become payable to the Current Issuer
thereunder and all payments received by the Current Issuer
thereunder including, without limitation, all rights to serve
notices and/or make demands thereunder and/or to take such steps
as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach
thereof and all rights to receive damages or obtain relief in
respect thereof and the proceeds of any of the foregoing, TO HOLD
the same unto the Note Trustee absolutely.
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3.3 Accounts: The Current Issuer, by way of first fixed security for the
payment or discharge of the Current Issuer Secured Obligations, subject
to Clause 4 (Release of Current Issuer Charged Property), hereby assigns
in favour of the Note Trustee all of its rights, title, benefit and
interest, present and future, in and to:
(a) the Current Issuer Transaction Accounts;
(b) any Swap Collateral Accounts; and
(c) each other account (if any) in which the Current Issuer may at any
time have or acquire any right, title, benefit or interest,
and all monies or securities now or at any time hereafter standing to
the credit thereof and the debts represented by them together with all
rights and claims relating or attached thereto including, without
limitation, the right to interest or other income or distributions and
the proceeds of any of the foregoing, TO HOLD the same unto the Note
Trustee absolutely.
3.4 Authorised Investments and Swap Collateral: The Current Issuer, by way
of first fixed charge for the payment or discharge of the Current Issuer
Secured Obligations, subject to Clause 4 (Release of Current Issuer
Charged Property), hereby charges in favour of the Note Trustee all of
its right, title, benefit and interest, present and future in, to and
under:
(a) any Authorised Investment purchased using monies standing to the
credit of any Current Issuer Bank Account; and
(b) any Swap Collateral in the form of securities,
for the time being owned by it and all rights in respect of or ancillary
to such Authorised Investments and such Swap Collateral, including the
right to income and distributions and the proceeds of any of the
foregoing, TO HOLD the same unto the Note Trustee absolutely.
3.5 Floating Charge: The Current Issuer, by way of first floating charge for
the payment or discharge of the Current Issuer Secured Obligations,
subject to Clause 4 (Release of Current Issuer Charged Property), hereby
charges in favour of the Note Trustee the whole of its undertaking and
all its property, assets and rights, whatsoever and wheresoever, both
present and future, including without limitation its uncalled capital,
other than any property or assets for the time being the subject of a
fixed charge or effectively assigned pursuant to any of the foregoing
provisions of this Clause 3 (Current Issuer Security).
3.6 Title Guarantee: Each of the dispositions of, assignments of and charges
over property effected in or pursuant to this Clause 3 (Current Issuer
Security) is made with full title guarantee.
3.7 Further Acquired Items: For the avoidance of doubt, it is hereby
confirmed that the Security Interests (including the Jersey Security
Interests) created under or pursuant to Clauses 3.1 (Funding Charged
Property) to Clause 3.4 (Authorised Investments and Swap Collateral)
(inclusive) are intended to be specific and fixed assignments, or
specific and fixed charges over (as the case may be) the property and
assets to which
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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
Current Issuer Deed of Charge, it is hereby agreed that dispositions of
property effected in or pursuant to this Clause 3 (Current Issuer
Security) do not transfer obligations, and nothing herein shall be
construed as a transfer of obligations to, the Note Trustee.
3.9 Notice and Acknowledgement:
(a) The execution of this Current Issuer Deed of Charge by any Current
Issuer Secured Creditor shall constitute express notice to such
Current Issuer Secured Creditor of the assignments, charges and
Security Interests (including the Jersey Security Interests) made
by the Current Issuer pursuant to this Clause 3 (Current Issuer
Security).
(b) By its execution of this Current Issuer Deed of Charge each
Current Issuer Secured Creditor acknowledges and consents to the
assignments, charges and Security Interests (including the Jersey
Security Interests) made or granted by the Current Issuer under
this Clause 3 (Current Issuer Security) and also acknowledges that
as at the date hereof it has not received from any other person
notice of any assignment or charge of any property the subject of
such Security Interests.
(c) Notwithstanding the assignments, charges and Security Interests
granted under or pursuant to this Clause 3 (Current Issuer
Security) and subject as provided otherwise in this Current Issuer
Deed of Charge, each of the parties hereto acknowledges that:
(i) each Current Issuer Secured Creditor and each other party to
any Current Issuer Transaction Document may continue to make
all payments becoming due to the Current Issuer under any
Current Issuer Transaction Document in the manner envisaged
by such Current Issuer Transaction Document until the
receipt of written notice from the Note Trustee or any
Receiver requiring payments to be made otherwise; and
(ii) until the Current Issuer Security becomes enforceable in
accordance with Clause 7.2 (Enforceable), the Current Issuer
shall be entitled to exercise its rights, powers and
discretions and perform its obligations in relation to the
Current Issuer Charged Property and under the Current Issuer
Transaction Documents in accordance with the provisions of
the Current Issuer Transaction Documents.
3.10 Note Trustee's Discretion in relation to Current Issuer Charged
Property:
Without prejudice to any other rights of the Note Trustee after the
security created under this Current Issuer Deed of Charge has become
enforceable and subject to the terms of the Current Issuer Transaction
Documents, the Note Trustee may from time to time at any time after any
part or parts of the Current Issuer Security becomes enforceable:
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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 Current Issuer Charged Property as
it may think expedient;
(b) exercise or refrain from exercising, in such manner as in its
absolute discretion the Note Trustee shall think fit, all or any
of the rights, powers, authorities, discretions or remedies of the
Current Issuer under or in relation to the Current Issuer Charged
Property or incidental to the ownership thereof and, in particular
but without limiting the generality of the foregoing, exercise all
rights to vote or to give any consent or notification or make any
declaration in relation to such Current Issuer Charged Property.
For the avoidance of doubt, the Note Trustee shall not be required
to have regard to the interests of the Current Issuer in the
exercise or non-exercise of any such rights, powers, authorities,
discretions and remedies or to comply with any direction given by
the Current Issuer in relation thereto; and
(c) demand, sue for and take any advice or institute any proceedings
to recover or obtain payment of any amounts which may then be due
and payable to the Current Issuer but which remains unpaid under
or in respect of the Current Issuer Charged Property or any part
thereof either in its own name or in the name of the Current
Issuer.
4. Release of Current Issuer Charged Property
4.1 Release, Reassignment or Discharge: Upon the irrevocable and
unconditional payment in full or discharge (or any combination of the
foregoing) of all the Current Issuer Secured Obligations and upon the
Note Trustee being satisfied that the Current Issuer is under no further
actual or contingent obligation under this Current Issuer Deed of Charge
or any other Current Issuer Transaction Document, the Note Trustee
shall, at the request and cost of the Current Issuer, release, reassign
and/or discharge from the Security Interests (including the Jersey
Security Interests) all of the Current Issuer Charged Property to, or to
the order of, the Current Issuer; provided that where any such release,
re-assignment or discharge is made in whole or in part on the faith of
any payment, security or other disposition which is avoided or which
must be repaid on bankruptcy, liquidation or otherwise, the security
constituted by this Current Issuer Deed of Charge and the liability of
the Current Issuer hereunder shall continue as if there had been no such
release, re-assignment or discharge.
4.2 Disposal of Authorised Investments and Swap Collateral: On the making at
any time by the Current Issuer Cash Manager on behalf of the Current
Issuer of a disposal of any Authorised Investment or Swap Collateral in
the form of securities charged pursuant to Clause 3.4 (Authorised
Investments and Swap Collateral), the Note Trustee shall, if so
requested by and at the sole cost and expense of the Current Issuer, but
without the Note Trustee being responsible for any loss, costs, claims
or liabilities whatsoever occasioned by so acting upon such request,
release, reassign or discharge from the Security Interests constituted
by or pursuant to this Current Issuer Deed of Charge the relevant
Authorised Investments or Swap Collateral, provided that in the case of
a disposal of an Authorised Investment, the proceeds of such disposal
are paid by the Current Issuer into the Current Issuer Bank Accounts
from which the monies to
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make such Authorised Investment were originally drawn and, that in the
case of Swap Collateral, the proceeds of such disposal are paid by the
Current Issuer into the relevant Swap Collateral Cash Account or Current
Issuer Bank Account (as appropriate in accordance with the Cash
Management Agreement) subject to and in accordance with the provisions
of this Current Issuer Deed of Charge and the Current Issuer Transaction
Documents.
4.3 Withdrawals from Current Issuer Bank Accounts and Swap Collateral
Accounts: Subject to and in accordance with this Current Issuer Deed of
Charge and the other Current Issuer Transaction Documents, the Current
Issuer Cash Manager, on behalf of the Current Issuer and the Note
Trustee, is permitted pursuant to Clause 6 (Restrictions on Exercise of
Certain Rights) from time to time to withdraw amounts from the Current
Issuer Bank Accounts in order to apply such amounts in accordance with
the relevant Current Issuer Priority of Payments and from time to time
to withdraw amounts or securities from the Swap Collateral Accounts in
order to apply such amounts or securities in accordance with the Current
Issuer Cash Management Agreement. Any amount or securities so withdrawn
shall be released from the Security Interests (including the Jersey
Security Interests) created under this Current Issuer Deed of Charge
provided that any amount withdrawn from the Current Issuer Bank Accounts
is applied in accordance with and subject to the relevant Current Issuer
Priority of Payments.
5. Declaration of Trust
Each of the Current Issuer Secured Creditors declares the Note Trustee
as trustee of, and the Note Trustee hereby declares that it holds on
trust for the Current Issuer Secured Creditors, upon and subject to the
terms and conditions of this Current Issuer Deed of Charge, all of the
covenants, undertakings and representations made to the Note Trustee
under this Current Issuer Deed of Charge and any other Current Issuer
Transaction Document and all of the charges, assignments, security and
Security Interests made or given to the Note Trustee or to be made or
given to it for the purpose of securing the Current Issuer Secured
Obligations under or pursuant to this Current Issuer Deed of Charge or
any other Current Issuer Transaction Document.
6. Restrictions on Exercise of Certain Rights
6.1 Payments to Current Issuer Bank Accounts and Swap Collateral Accounts:
At all times prior to the release, re-assignment and/or discharge of the
Current Issuer Security pursuant to Clause 4 (Release of the Current
Issuer Charged Property), the Current Issuer shall save as otherwise
provided in the Current Issuer Transaction Documents or unless the Note
Trustee otherwise agrees in writing (and then only on such terms and in
such manner as the Note Trustee may require) procure that:
(a) the Current Issuer Bank Accounts shall from time to time be
credited with all amounts (excluding Swap Collateral Excluded
Amounts) received by the Current Issuer under or in respect of the
Current Issuer Transaction Documents, including without limitation
the following payments:
(i) amounts received by the Current Issuer from or on behalf of
Funding pursuant to the provisions of the Current Issuer
Intercompany Loan Agreement;
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(ii) interest received on the Current Issuer Bank Accounts;
(iii) amounts received by the Current Issuer from the Basis Rate
Swap Provider under the Current Issuer Basis Rate Swap
Agreement and any Swap Collateral Available Revenue Amounts
and Swap Collateral Available Principal Amounts;
(iv) amounts received by the Current Issuer from the Dollar
Currency Swap Provider under the Current Issuer Dollar
Currency Swap Agreements and any Swap Collateral Available
Revenue Amounts and Swap Collateral Available Principal
Amounts;
(v) amounts received by the Current Issuer from the Euro
Currency Swap Provider under the Current Issuer Euro
Currency Swap Agreements and any Swap Collateral Available
Revenue Amounts and Swap Collateral Available Principal
Amounts;
(vi) amounts received by the Current Issuer from the Interest
Rate Swap Provider under the Current Issuer Interest Rate
Swap Agreement and any Swap Collateral Available Revenue
Amounts and Swap Collateral Available Principal Amounts;
(vii) income received by the Current Issuer in respect of the
proceeds of any Authorised Investments;
(viii) amounts received by the Current Issuer from the Security
Trustee or a Receiver following the service of an
Intercompany Loan Enforcement Notice;
(ix) such other payments received by the Current Issuer as are,
or ought in accordance with this Current Issuer Deed of
Charge to be, comprised in the Current Issuer Charged
Property; and
(b) any Swap Collateral Accounts shall from time to time be credited
with any Swap Collateral Excluded Amounts received by the Current
Issuer pursuant to the relevant Current Issuer Swap Agreement.
6.2 No withdrawal from Current Issuer Bank Accounts and Swap Collateral
Accounts: At all times during the subsistence of the Current Issuer
Security, the Current Issuer shall not be entitled to withdraw or
transfer from any Current Issuer Bank Account or Swap Collateral Account
any monies or securities standing to the credit thereof or direct any
payment to be made therefrom to any person save to the extent expressly
permitted under this Current Issuer Deed of Charge without the Note
Trustee's prior written consent.
6.3 Permitted Withdrawals from Current Issuer Bank Accounts and Swap
Collateral Accounts; Authorised Investments:
(a) The Current Issuer covenants with the Note Trustee that the
amounts standing to the credit of the Current Issuer Bank Accounts
and any Swap Collateral standing to the credit of a Swap
Collateral Account may only be withdrawn in accordance with this
Clause 6.3 or otherwise with the Note Trustee's prior written
consent.
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(b) On any day during an Interest Period prior to the security
becoming enforceable pursuant to Clause 7.2 (Enforceable), the
Current Issuer and the Note Trustee hereby authorise the Current
Issuer Cash Manager to withdraw such monies from the Current
Issuer Transaction Accounts as are to be applied on such date to
meet any amounts then due and payable by the Current Issuer to
third parties in accordance with item (C) of the Current Issuer
Pre-Enforcement Revenue Priority of Payments provided that such
monies are applied in making such payments on behalf of the
Current Issuer. For the purpose of this paragraph (b), the
remaining provisions of this Clause 6.3, Clause 6.4 (Current
Issuer Pre-Enforcement Revenue Priority of Payments) and Clause
6.5 (Current Issuer Pre-Enforcement Principal Priority of
Payments), the Current Issuer Cash Manager shall be entitled to
assume that the Current Issuer Security is not enforceable
pursuant to Clause 7.2 (Enforceable) unless it has received notice
from the Current Issuer or the Note Trustee or is otherwise aware
that the Current Issuer Security has become so enforceable and
shall not be liable to the Note Trustee, the Current Issuer or any
other Current Issuer Secured Creditor for making payments based on
this assumption.
(c) The Note Trustee hereby authorises the Current Issuer Cash
Manager, prior to the security becoming enforceable pursuant to
Clause 7.2 (Enforceable), to make withdrawals from:
(i) the relevant Current Issuer Bank Account for the purposes of
acquiring Authorised Investments provided that all amounts
received in respect of the Authorised Investments (including
earnings thereon) shall be deposited into the relevant
Current Issuer Bank Account from which they were originally
drawn; and
(ii) the relevant Swap Collateral Account for the purpose of (1)
transferring or paying Swap Collateral to a Current Issuer
Swap Provider pursuant to the terms of the relevant Current
Issuer Swap Agreement; or (2) transferring Swap Collateral
Available Revenue Amounts and/or Swap Collateral Available
Principal Amounts to the relevant Current Issuer Transaction
Account.
6.4 Current Issuer Pre-Enforcement Revenue Priority of Payments: On each
Payment Date, prior to the Current Issuer Security becoming enforceable
pursuant to Clause 7.2 (Enforceable), the Note Trustee hereby authorises
the Current Issuer or the Current Issuer Cash Manager in its place to
withdraw Current Issuer Available Revenue Receipts standing to the
credit of the Current Issuer Transaction Accounts and to apply such
monies in accordance with the provisions and the order of priority of
the Current Issuer Pre-Enforcement Revenue Priority of Payments (as the
same may be amended or varied from time to time) as set out in Schedule
2 (Cash Management and Maintenance of Ledgers) to the Current Issuer
Cash Management Agreement.
6.5 Current Issuer Pre-Enforcement Principal Priority of Payments: On each
Payment Date prior to the Current Issuer Security becoming enforceable
pursuant to Clause 7.2 (Enforceable), the Note Trustee hereby authorises
the Current Issuer or the Current Issuer Cash Manager in its place to
withdraw Current Issuer Available Principal
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Receipts standing to the credit of the Current Issuer Transaction
Accounts and to apply such monies in accordance with the order of
priority of the Current Issuer Pre-Enforcement Principal Priority of
Payments (as the same may be amended or varied from time to time) as set
out in Schedule 2 (Cash Management and Maintenance of Ledgers) to the
Current Issuer Cash Management Agreement.
6.6 No Enforcement by Current Issuer Secured Creditors: Each of the Current
Issuer Secured Creditors (other than the Note Trustee acting on behalf
of the Noteholders and any Receiver) hereby agrees with the Current
Issuer and the Note Trustee that:
(a) only the Note Trustee may enforce the security created in favour
of the Note Trustee by this Current Issuer Deed of Charge in
accordance with the provisions hereof;
(b) notwithstanding any other provision of this Current Issuer Deed of
Charge or any other Current Issuer Transaction Document no sum due
or owing to any Current Issuer Secured Creditor or to the Note
Trustee (whether for itself or on behalf of the Current Issuer
Secured Creditors) from or by the Current Issuer under this
Current Issuer Deed of Charge or any other Current Issuer
Transaction Document shall be payable by the Current Issuer except
to the extent that the Current Issuer or (following enforcement of
the Current Issuer Security) the Note Trustee has sufficient funds
available to it (and, in the case of the Note Trustee, as a result
of the realisation of that security) to pay such sum subject to
and in accordance with the relevant Current Issuer Priority of
Payments and provided that all liabilities of the Current Issuer
required to be paid in priority thereto or pari passu therewith
pursuant to such Current Issuer Priority of Payments have been
paid, discharged and/or otherwise provided for in full PROVIDED
THAT this paragraph (b) shall not apply to and shall not limit the
obligations of the Current Issuer to the Noteholders under the
Current Issuer Notes and this Current Issuer Deed of Charge; and
(c) it shall not take any steps for the purpose of recovering any of
the Current Issuer Secured Obligations (including, without
limitation, by exercising any rights of set-off) or enforcing any
rights arising out of the Current Issuer Transaction Documents
against the Current Issuer and it shall not take any steps or
legal proceedings for the winding-up, dissolution or
reorganisation of, or the institution of insolvency proceedings
against, the Current Issuer or for the appointment of a receiver,
administrator, administrative receiver, liquidator or similar
officer of the Current Issuer in respect of any or all of its
revenues and assets,
PROVIDED THAT
(i) in the case of any Noteholder, this provision shall be
subject to Clause 7.2 (Only Note Trustee to Enforce) of the
Current Issuer Trust Deed; and
(ii) in the case of any other Current Issuer Secured Creditor and
subject to there being no Current Issuer Note then
outstanding, if the Note Trustee having become bound to do
so subject to and in accordance with the terms of this
Current Issuer Deed of Charge and the Current
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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 Current Issuer Secured Creditor shall be
entitled to take such steps and proceedings to enforce its
rights arising out of the relevant Current 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 Current
Issuer or the appointment of an administrator or liquidator
of the Current Issuer.
6.7 Acknowledgement of Note Trustee: The Note Trustee hereby acknowledges
and agrees that save with respect to the obligations of the Current
Issuer to the Noteholders under the Current Issuer Notes and this
Current Issuer Deed of Charge which are not limited under paragraph (b)
of Clause 6.6 (No Enforcement by Current Issuer Secured Creditors) or
under this Clause 6.7 (Acknowledgement of Note Trustee) and
notwithstanding any other provision of this Current Issuer Deed of
Charge or any other Current Issuer Transaction Document, no sum due or
owing to any Current Issuer Secured Creditor or to the Note Trustee
(whether for itself or on behalf of the Current Issuer Secured
Creditors) from or by the Current Issuer under this Current Issuer Deed
of Charge or any other Current Issuer Transaction Document shall be
payable by the Current Issuer except to the extent that the Current
Issuer has sufficient funds available or (following enforcement of the
Current Issuer Security) the Note Trustee has realised sufficient funds
from the Current Issuer Security to pay such sum subject to and in
accordance with the relevant Current Issuer Priority of Payments and
provided that all liabilities of the Current Issuer required to be paid
in priority thereto or pari passu therewith pursuant to such Current
Issuer Priority of Payments have been paid, discharged and/or otherwise
provided for in full.
7. Enforcement
7.1 Notification: The Note Trustee shall, if practicable, give prior
notification to the Seller, Funding, the Cash Manager and the Current
Issuer Cash Manager of the Note Trustee's intention to enforce the
security created by this Current Issuer Deed of Charge. However, the
failure of the Note Trustee to provide such notification shall not in
any way prejudice the ability of the Note Trustee to enforce the
security created by this Current Issuer Deed of Charge.
7.2 Enforceable:
(a) Without prejudice to the provisions of Clause 9 (Receiver) the
security created under this Current Issuer Deed of Charge shall
become immediately enforceable and the power of sale and other
powers conferred by Section 101 of the 1925 Act, as varied or
amended by this Current Issuer Deed of Charge, shall be
exercisable by the Note Trustee:
(i) at any time when any Current Issuer Note remains
outstanding, in accordance with and subject to, Clause 6
(Enforcement) and Clause 7 (Proceedings, Action and
Indemnification) of the Current Issuer Trust Deed which
shall, as necessary, be incorporated in and apply, mutatis
mutandis, to this Current Issuer Deed of Charge (and for
that purpose
14
references therein to "this Trust Deed" or "these presents"
shall be construed as references to this Current Issuer Deed
of Charge); or
(ii) if there are no Current Issuer Notes outstanding, following
a default in payment of any other Current Issuer Secured
Obligations on its due date or within any applicable grace
period following such due date stated in the relevant
Current Issuer Transaction Document but subject always to
any limited recourse provisions stated therein and to Clause
6.6 (No Enforcement by Current Issuer Secured Creditors)
hereof; or
(iii) upon the service on Funding by the Security Trustee of an
Intercompany Loan Enforcement Notice.
(b) For the purposes of the Jersey Security Interests, upon the
occurrence of any of the events specified in Clause 7.2 (a) (i),
(ii) or (iii) (which shall constitute events of default for the
purposes of the Jersey Security Interests in accordance with the
Jersey Security Law) the Note Trustee shall have the right to give
notice (the "Current Issuer Jersey Enforcement Notice") to the
Current Issuer in accordance with the Jersey Security Law and the
power of sale of the Current Issuer Jersey Secured Property shall
become exercisable without the order of the Jersey court in
accordance with the Jersey Security Law so that the Jersey
Security Interests shall be enforceable in accordance with the
provisions of the Jersey Security Law.
7.3 Power of Sale:
(a) Notwithstanding any other provision of this Current Issuer Deed of
Charge, the Current Issuer Secured Obligations shall be deemed to
have become due and payable for the purposes of Section 101 of the
1925 Act and Article 8 of the Jersey Security Law and (to the
extent applicable) the statutory power of sale and of appointing a
receiver and other powers which are conferred on mortgagees under
the 1925 Act as varied or extended by this Current Issuer Deed of
Charge shall be deemed to arise immediately after execution of
this Current Issuer Deed of Charge.
(b) Section 103 of the 1925 Act shall not apply to this Current Issuer
Deed of Charge and forthwith after the security has become
enforceable in accordance with Clause 7.2 (Enforceable) the
statutory power of sale, as extended by this Current Issuer Deed
of Charge, and all other powers shall become immediately
exercisable without notice to the Current Issuer and the
provisions of the 1925 Act regulating the power of sale shall, so
far as they relate to the Current Issuer Charged Property, be
varied and extended accordingly.
7.4 Law of Property Act 1925: Subject, in the case of the Current Issuer
Jersey Secured Property, to the provisions of the Jersey Security Law,
the provisions of the 1925 Act relating to the power of sale and the
other powers conferred by Section 101(1) and (2) are hereby extended in
relation to the Current Issuer as if such extensions were contained in
the 1925 Act such that at any time after the security constituted by
this Current Issuer Deed of Charge has become enforceable in accordance
with Clause 7.2 (Enforceable) above, the Note Trustee may in its
absolute discretion:
15
(a) make demand in the name of the Current Issuer Secured Creditors or
in its own right for any monies and liabilities in respect of the
Current Issuer Charged Property;
(b) enforce any rights it may have in respect of the whole or any part
of the Current Issuer Charged Property in such manner and upon
such terms as the Note Trustee shall think fit;
(c) take possession of, get in and collect the Current Issuer Charged
Property and perfect interests comprised therein;
(d) (subject to any restrictions under or in respect of the relevant
Current Issuer Charged Property) sell, transfer, convey, dispose
of, vary or otherwise deal with, and also grant any option to
purchase, and effect exchanges of, the whole or any part of
Current Issuer Charged Property or any interest therein in such
manner, for such consideration (if any) and generally upon such
terms (including by deferred payment or payment by instalments) as
it may think fit and/or to concur in any of the foregoing (and
nothing shall preclude any such disposal being made to a Current
Issuer Secured Creditor);
(e) carry out any transaction, scheme or arrangement which the Note
Trustee may, in its absolute discretion, consider appropriate with
a view to or in connection with the sale of the Current Issuer
Charged Property;
(f) do all or any of the things or exercise all or any of the powers,
authorities and discretions conferred expressly or by implication
on any Receiver under Clause 9.6 (Powers of the Receiver) or
otherwise under this Current Issuer Deed of Charge; and/or
(g) exercise all or any of the powers conferred on mortgagees by the
1925 Act as varied or extended by this Current Issuer Deed of
Charge and any other rights and remedies that may be conferred by
statute or common law or in equity on mortgagees or receivers.
8. Upon Enforcement
8.1 Service of a Current Issuer Note Enforcement Notice: Without prejudice
to the effectiveness of any service of a Current Issuer Note Enforcement
Notice, the Note Trustee shall as soon as is practicable notify each of
the following parties of the enforcement of the Current Issuer Security
(whether by service of a copy of any Current Issuer Note Enforcement
Notice or otherwise):
(a) the Seller;
(b) Funding;
(c) the Account Bank, the Cash Manager and the Current Issuer Cash
Manager;
(d) the Paying Agents and the other Agents under the Current Issuer
Paying Agent and Agent Bank Agreement;
(e) the Current Issuer Swap Providers;
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(f) the Corporate Services Provider; and
(g) each other Current Issuer Secured Creditor.
8.2 Crystallisation: From and including the date when the Note Trustee
serves a Current Issuer Note Enforcement Notice (which has not been
withdrawn) on the Current Issuer:
(a) notwithstanding any provision hereof or of any other Current
Issuer Transaction Document no amount may be withdrawn from the
Current Issuer Bank Accounts except with the prior written consent
of the Note Trustee; and
(b) if not already crystallised, any charge created by this Current
Issuer Deed of Charge which is a floating charge shall
crystallise, provided that the floating charge created by this
Current Issuer Deed of Charge shall not be crystallised solely as
a result of obtaining a moratorium (or anything done with a view
to obtaining a moratorium) under the Insolvency Act 2000 except
with leave of the court.
8.3 Current Issuer Post-Enforcement Priority of Payments: At any time after
the security created by this Current Issuer Deed of Charge has become
enforceable in accordance with Clause 7.2 (Enforceable) and provided
that the relevant Current Issuer Note Event of Default has not been
waived in accordance with the provisions of this Current Issuer Deed of
Charge, Current Issuer Available Revenue Receipts, Current Issuer
Available Principal Receipts and all other monies (excluding Swap
Collateral Excluded Amounts) paid to or received or recovered by or on
behalf of the Current Issuer or the Note Trustee or any Receiver
appointed on its behalf, including all proceeds following any sale,
realisation or enforcement of the security created under this Current
Issuer Deed of Charge and all amounts (excluding Swap Collateral
Excluded Amounts) not previously distributed and/or standing to the
credit of any Current Issuer Bank Account and Swap Collateral Account
shall (if not already received by the Note Trustee) be paid to and held
by the Note Trustee on trust to apply the same (save to the extent
otherwise required by applicable law) in accordance with the order of
priority of the Current Issuer Post-Enforcement Priority of Payments (as
the same may be amended or varied from time to time) as set out on the
date hereof in Schedule 2 (Current Issuer Post-Enforcement Priority of
Payments) to this Current Issuer Deed of Charge.
8.4 Certification of Amounts:
(a) The Note Trustee shall be entitled to rely on (and to accept as
conclusive evidence save in the case of manifest error) a certificate
from each Current Issuer Secured Creditor as to the amounts owed to such
Current Issuer Secured Creditor under the Current Issuer Transaction
Documents. The Note Trustee shall not take into account for the purpose
of the application of moneys in accordance with the Current Issuer
Post-Enforcement Priority of Payments any amounts of which it has not
been notified by the intended recipient on or prior to the date in
question.
(b) Each Current Issuer Secured Creditor will, at all times, promptly
provide the Note Trustee and/or any Receiver on request with a
certificate setting out detailed information as to the amount of the
Current Issuer Secured Obligations to which such
17
Current Issuer Secured Creditor is entitled and such other information
as the Note Trustee and/or any Receiver may require to enable or
facilitate the Note Trustee and/or any Receiver to perform its functions
hereunder or under any of the Current Issuer Transaction Documents, such
certificate to be in a form required by the Note Trustee and/or any
Receiver. In determining the respective entitlements of the Current
Issuer Secured Creditors hereunder, such certificates shall be binding
on all of the Current Issuer Secured Creditors.
8.5 Retention Account: If the Note Trustee enforces the security created
under this Current Issuer Deed of Charge at a time when either no
amounts or not all amounts owing in respect of the Current Issuer
Secured Obligations have become due and payable or any of the Current
Issuer Secured Obligations are at such time contingent or future, the
Note Trustee or a Receiver may, for so long as no such amounts or not
all such amounts have become due and payable or any of the Current
Issuer Secured Obligations are at such time contingent or future, pay
any monies referred to in Clause 8.3 (Current Issuer Post-Enforcement
Priority of Payments), as the case may be, into, and retain such monies
in, an interest-bearing account (a "retention account") to be held by it
as security and applied by it in accordance with Clause 8.3 (Current
Issuer Post-Enforcement Priority of Payments) as and when any of the
amounts referred to therein become due and payable.
8.6 Note Trustee Rights upon Enforcement: In addition to any other rights
expressly provided herein, for the period commencing upon the service of
a Current Issuer Note Enforcement Notice and terminating upon the
notification to the Current Issuer Secured Creditors by the Note Trustee
that all Current Issuer Secured Obligations have been satisfied in full:
(a) (provided such Current Issuer Secured Creditor has received a copy
of, or other notice of the service on the Current Issuer of, any
such Current Issuer Note Enforcement Notice) each Current Issuer
Secured Creditor agrees that it will pay to the Note Trustee or
the Receiver, as the case may be, all monies received or recovered
by such Current Issuer Secured Creditor (whether by way of set-off
or otherwise) in order that such amounts may be applied by the
Note Trustee in accordance with Clause 8.3 (Current Issuer
Post-Enforcement Priority of Payments);
(b) save as otherwise expressly provided in this Current Issuer Deed
of Charge or as required by the Note Trustee, all payments under
or arising from this Current Issuer Deed of Charge and all amounts
payable to the Current Issuer by any party to this Current Issuer
Deed of Charge under any Current Issuer Transaction Document shall
be paid to the Note Trustee or to its order;
(c) save as otherwise expressly provided in this Current Issuer Deed
of Charge, all rights or remedies provided for by this Current
Issuer Deed of Charge or available at law or in equity to the
Current Issuer Secured Creditors are exercisable by the Note
Trustee;
(d) save as otherwise expressly provided in this Current Issuer Deed
of Charge, all rights to compel performance of the Current Issuer
Transaction Documents are exercisable by the Note Trustee; and
18
(e) all payments in respect of the Current Issuer Secured Obligations
shall operate in satisfaction pro tanto of the Current Issuer's
covenants to the relevant Current Issuer Secured Creditors.
9. Receiver
9.1 Appointment: At any time after the security constituted hereunder
becomes enforceable, and whether or not the Note Trustee has taken
possession of the Current Issuer Charged Property, the Note Trustee may
appoint, by writing or by deed, such person or persons (including an
officer or officers of the Note Trustee) as the Note Trustee thinks fit
to be a receiver, a receiver and manager or an administrative receiver
of the Current Issuer Charged Property or any part thereof (each a
"Receiver") and, in the case of an appointment of more than one person,
to act together or independently of the other or others.
9.2 Removal and Replacement: Except as otherwise required by statute, the
Note Trustee may by writing or by deed remove a Receiver and appoint
another in its place or to act with a Receiver and the Note Trustee may
apply to the court for an order removing an administrative receiver.
9.3 Extension of Appointment: The exclusion of any part of the Current
Issuer Charged Property from the appointment of the Receiver shall not
preclude the Note Trustee from subsequently extending its appointment
(or that of the Receiver replacing it) to that part of the Current
Issuer Charged Property or appointing another Receiver over any other
part of the Current Issuer Charged Property.
9.4 Agent of Current Issuer: The Receiver shall, so far as the law permits,
be the agent of the Current Issuer and the Current Issuer alone shall be
responsible for the Receiver's contracts, engagements, acts, omissions,
misconduct, negligence or default and for liabilities incurred by it;
and in no circumstances whatsoever shall the Note Trustee or any Current
Issuer Secured Creditor be in any way responsible for or incur any
liability in connection with its contracts, engagements, acts,
omissions, misconduct, negligence or default, and if a liquidator of the
Current Issuer shall be appointed, the Receiver shall act as principal
and not as agent for the Note Trustee. Notwithstanding the generality of
the foregoing, such Receiver shall in the exercise of its powers,
authorities and discretions conform to the regulations or directions (if
any) from time to time made and given by the Note Trustee.
9.5 Remuneration: Subject as provided otherwise by applicable law, the
remuneration of the Receiver shall be fixed by the Note Trustee and may
be or include a commission calculated by reference to the gross amount
of all monies received or otherwise. Such remuneration and such
commission (if any) shall be payable hereunder by the Current Issuer
alone subject always to Clause 8.3 (Current Issuer Post-Enforcement
Priority of Payments) and the amount of such remuneration shall form
part of the Current Issuer Secured Obligations and shall accordingly be
secured on the Current Issuer Charged Property under the security
created by this Current Issuer Deed of Charge.
9.6 Powers of the Receiver: Subject, in the case of the Current Issuer
Jersey Secured Property, to the provisions of the Jersey Security Law,
the Receiver of the Current Issuer, in addition to any powers conferred
on an administrative receiver, receiver, manager or receiver and manager
by statute or common law, shall have the power to:
19
(a) take possession of, get in and collect the Current Issuer Charged
Property;
(b) (subject to any restrictions under or in respect of relevant
Current Issuer Charged Property) sell, transfer, convey, license,
release or otherwise dispose of vary or deal with, and also grant
any option to purchase, and effect exchanges of, the whole or any
part of the Current Issuer Charged Property or any interest
therein and grant or accept surrenders, disclaimers and variations
in relation to or otherwise affecting the Current Issuer Charged
Property in each case in such manner, for such consideration (if
any) and generally upon such terms (including by deferred payment
of payment by instalments) as it may think fit and/or concur in
any of the foregoing (and nothing shall preclude any such disposal
being made to a Current Issuer Secured Creditor);
(c) carry out any transaction, scheme or arrangement which it may, in
its absolute discretion, consider appropriate with a view to or in
connection with the sale of the Current Issuer Charged Property;
(d) insure the Current Issuer Charged Property against such risks and
for such amounts as it may consider prudent and obtain bonds and
performance guarantees;
(e) otherwise protect, maintain or improve, the Current Issuer Charged
Property or any part thereof in any manner and for any purpose
whatsoever as it shall think fit;
(f) transfer all or any of the Current Issuer Charged Property and/or
any of the liabilities to any other company or body corporate,
whether or not formed or acquired for the purpose (and whether or
not a subsidiary or associated company of the Note Trustee or any
other party to the Current Issuer Transaction Documents) and to
form a subsidiary or subsidiaries of the Current Issuer;
(g) carry on and manage or concur in managing or appoint a manager of,
the whole or any part of the business of the Current Issuer in
such manner as it shall in its absolute discretion think fit
including the power to enter into any contract and to perform,
repudiate, rescind or vary any contract to which the Current
Issuer is a party;
(h) sell or concur in selling the whole or any part of the Current
Issuer's business whether as a going concern or otherwise;
(i) appoint, dismiss, engage or vary the terms of employment of any
employees, managers, agents or advisers of the Current Issuer upon
such terms as to remuneration and otherwise for such periods as it
may in its absolute discretion think fit;
(j) in connection with the exercise or proposed exercise of any of its
powers or in order to obtain payment of its remuneration or
reimbursement of its expenses (in each case, whether or not
already due), borrow or raise money from any person, without
security or on the security of the Current Issuer Charged Property
(either in priority to the security constituted by this Current
Issuer
20
Deed of Charge or otherwise) and generally in such manner and on
such terms as it may think fit;
(k) bring, defend, submit to arbitration, negotiate, compromise,
enforce, abandon and settle actions, suits, claims and proceedings
concerning or affecting the Current Issuer Charged Property or the
security created under this Current Issuer Deed of Charge;
(l) exercise any powers, discretions, voting, conversion or other
rights or entitlements in relation to any of the Current Issuer
Charged Property or incidental to the ownership of or rights in or
to any of the Current Issuer Charged Property and to complete or
effect any transaction entered into by the Current Issuer or
disclaim, abandon or modify all or any of the outstanding
contracts or arrangements of the Current Issuer relating to or
affecting the Current Issuer Charged Property;
(m) generally carry out, or cause to be carried out any transaction or
scheme or arrangement whatsoever, whether similar or not to any of
the foregoing, in relation to the Current Issuer Charged Property
which it may consider expedient as effectual as if it were solely
and absolutely entitled to the Current Issuer Charged Property;
(n) in connection with the exercise of any of its powers, execute or
do, or cause or authorise to be executed or done, on behalf of or
in the name of the Current Issuer or otherwise, as it may think
fit, all documents, acts or things which it may consider
appropriate;
(o) redeem, discharge or compromise any security whether or not having
priority to the security created hereunder;
(p) enter into covenants, guarantees, commitments, indemnities and
other obligations or liabilities as it shall think fit;
(q) pay and discharge out of the profits and income of the Current
Issuer Charged Property and the monies to be made by it carrying
on any such business as aforesaid the expenses in and about the
carrying on and management of such business or in the exercise of
any of the powers conferred by Clause 9 (Receivers) or otherwise
in respect of the Current Issuer Charged Property and all
outgoings which it shall think fit to pay and to apply the residue
of the said profits, income or monies in the manner provided by
Clause 8.3 (Current Issuer Post-Enforcement Priority of Payments);
and
(r) exercise any other powers, rights and/or remedies that may be
available at law or in equity including the powers referred to in
Section 1 of the Insolvency Act 1986.
9.7 Security: The Note Trustee may from time to time and at any time require
any such Receiver to give security for the due performance of its duties
and may fix the nature and amount of the security to be so given but the
Note Trustee shall not be bound in any such case to require any such
security.
21
9.8 Application by Receiver: Save so far as otherwise directed by the Note
Trustee, all monies from time to time received by such Receiver shall be
paid over to the Note Trustee to be held by it on the trusts declared
under this Current Issuer Deed of Charge and to be distributed in
accordance with Clause 8.3 (Current Issuer Post-Enforcement Priority of
Payments).
9.9 Payment to Receiver: The Note Trustee may pay over to such Receiver any
monies constituting part of the Current Issuer Charged Property for the
same to be applied for the purposes of this Current Issuer Deed of
Charge by such Receiver and the Note Trustee may from time to time
determine what funds the Receiver shall be at liberty to keep in hand
with a view to the performance of its duties as such Receiver.
9.10 No Restrictions: None of the restrictions imposed by the 1925 Act in
relation to the appointment of receivers or the giving of notice or
otherwise shall apply in relation to the Receiver.
9.11 Administration:
(a) Upon presentation of an application or a petition to a court of
competent jurisdiction for an administration order or 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 Current Issuer or other order
having substantially the same effect to be made on application by
a creditor or creditors of the Current Issuer, the Note Trustee
shall, subject to it being indemnified to its satisfaction, as
soon as practicable appoint a Receiver in accordance with this
Current Issuer Deed of Charge (who shall, to the extent permitted
by law, be an "administrative receiver" under Section 29 (2) of
the Insolvency Act 1986) of the whole of the Current Issuer
Charged Property and, in the case of any application to the court
or petition the Note Trustee shall instruct the Receiver to attend
at the hearing of the application or petition and take such steps
as are necessary to prevent the appointment of an administrator.
The Current Issuer Secured Creditors shall co-operate and do all
acts and enter into such further documents, deeds or agreements as
the Note Trustee may deem necessary or desirable to ensure that an
administration order is not made and that an administrative
receiver is appointed.
(b) Paragraph 14 of Schedule B1 to the Insolvency Act 1986 applies to
the floating charge created hereunder.
10. Further Assurance and Power of Attorney
10.1 Further Assurance: The Current Issuer covenants with and undertakes to
the Note Trustee from time to time (notwithstanding that the security
may not have become enforceable and the Note Trustee may not have served
any Current Issuer Note Enforcement Notice) upon demand:
(a) to execute, at the Current Issuer's cost, any document or do any
act or thing which the Note Trustee or any Receiver may specify
(including executing such Security Interests over its rights in
and over the Current Issuer Charged Property and any other assets
of the Current Issuer in such form as the Note Trustee and/or any
Receiver may require) with a view to:
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(i) registering, perfecting, protecting or improving any charge
or security or Security Interest (including any Jersey
Security Interest) created or intended to be created by or
pursuant to this Current Issuer Deed of Charge (including
any act or document which may be required or desirable under
the laws of any jurisdiction in which any property or assets
may be located in order to confer on the Note Trustee
security over such property and assets equivalent or similar
to the security intended to be conferred by or pursuant to
this Current Issuer Deed of Charge) and in such form as the
Note Trustee or the Receiver may specify; and/or
(ii) facilitating the realisation of or enforcement of rights of,
all or any part of the Current Issuer Charged Property
(including any Current Issuer Jersey Secured Property) or
the exercise, or proposed exercise, of any of the powers,
duties or discretions vested or intended to be vested in the
Note Trustee or such Receiver by or pursuant to this Current
Issuer Deed of Charge or doing any act or thing deemed
necessary by the Note Trustee or the Receiver;
(b) to give or join in giving or procure the giving of any notices to
any persons and obtain or procure that there is obtained any
necessary acknowledgements in relation to such notices, all in
such form, as the Note Trustee or the Receiver may require at the
cost of the Current Issuer,
and for the purpose of this Clause 10.1 (Further Assurance) a
certificate in writing signed by the Note Trustee to the effect that any
particular assurance or thing is required by it shall be conclusive
evidence of that fact provided that the Current Issuer shall not be
obliged to execute any such documentation or take any other action or
steps to the extent that it would breach a restriction in any agreement
to which it is a party or conflict with any applicable law.
10.2 Execution of Power of Attorney: Immediately upon execution of this
Current Issuer Deed of Charge, the Current Issuer shall execute and
deliver to the Note Trustee the power of attorney in or substantially in
the form set out in Schedule 1 (Form of Security Power of Attorney).
10.3 Current Issuer Charged Property on Trust: To the extent permitted to do
so under the Current Issuer Transaction Documents, for the purpose of
giving effect to this Current Issuer Deed of Charge, the Current Issuer
hereby declares that, after service of a Current Issuer Note Enforcement
Notice, it will hold all the Current Issuer Charged Property (subject to
the right of redemption) upon trust to convey, assign or otherwise deal
with such Current Issuer Charged Property in such manner and to such
person as the Note Trustee shall direct pursuant to this Current Issuer
Deed of Charge, and declares that it shall be lawful for the Note
Trustee to appoint a new trustee or trustees of the Current Issuer
Charged Property in place of the Current Issuer.
11. Crystallisation
11.1 Notice: In addition and without prejudice to any other event resulting
in a crystallisation of the floating charge created by this Current
Issuer Deed of Charge or any other right the Note Trustee may have, the
Note Trustee may, by notice in writing
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to the Current 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 Current Issuer as the Note
Trustee may specify in such notice at any time if:
(a) a Current Issuer Note Event of Default or a Current Issuer
Potential Note Event of Default has occurred; or
(b) the Note Trustee believes that the Current Issuer Charged Property
or any part thereof is in danger of being seized or sold under any
form of distress, execution or diligence levied or is otherwise in
jeopardy; or
(c) the Note Trustee considers that it is desirable in order to
protect the priority of the security created by this Current
Issuer Deed of Charge,
provided that the floating charge created by this Current Issuer Deed of
Charge 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 Act 2000 without the leave
of the court.
11.2 Automatic Crystallisation: In addition and without prejudice to any
other event resulting in a crystallisation of the floating charge
contained herein and without prejudice to any rule of law which may have
a similar effect, the floating charge created under this Current Issuer
Deed of Charge shall automatically and without notice be converted with
immediate effect into a fixed charge as regards:
(a) all property, assets or undertaking of the Current Issuer subject
to the floating charge, upon:
(i) the presentation of a petition for or the making of an
application for the compulsory winding-up of the Current
Issuer;
(ii) the convening of a meeting for the passing of a resolution
for the voluntary winding-up of the Current Issuer;
(iii) the presentation of a petition for or the making of an
application for an administration order or the filing of
documents with the court for the appointment of an
administrator or the service of a notice of intention to
appoint an administrator in relation to the Current Issuer;
(iv) the presentation or making of an application for a warrant
of execution, writ of fieri facias, garnishee order or
charging order in respect of any of the assets of the
Current Issuer subject to the floating charge;
(v) the occurrence of a Current Issuer Note Event of Default;
and/or
(b) any property, assets or undertaking of the Current Issuer, which
become subject to an Encumbrance in favour of any person other
than the Note Trustee or which is/are the subject of a sale,
transfer or other disposition, in either case, contrary to the
covenants and undertakings contained in the Current Issuer
Transaction Documents, immediately prior to such Encumbrance
arising or such sale, transfer or other disposition being made,
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provided that the floating charge created by this Current Issuer Deed of
Charge 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 Act 2000 without the leave
of the court.
12. Provisions relating to the Security
12.1 Continuing Security: The security created under or pursuant to this
Current Issuer Deed of Charge shall be:
(a) in addition to and independent of and shall not operate so as to
prejudice or affect or merge in any other security, right of
recourse or other right whatsoever which may be held by any of the
Current Issuer Secured Creditors or the Note Trustee on their
behalf in respect of the whole or any part of the Current Issuer
Secured Obligations and shall not be affected by any release,
reassignment or discharge of such other security; and
(b) a continuing security for the Current Issuer Secured Obligations
and shall remain in force as continuing security for the Current
Issuer Secured Creditors and shall not be considered as satisfied
or discharged by any intermediate payment or settlement of the
whole or any part of the Current Issuer Secured Obligations or the
existence at any time of a credit balance on any current or other
account or any other matter or thing whatsoever.
12.2 Consolidation: Section 93 of the 1925 Act shall not apply in relation to
any of the charges contained in this Current Issuer Deed of Charge.
12.3 Ruling Off: If the Note Trustee receives notice of any Encumbrance
affecting the whole or any part of the Current Issuer Charged Property
or any security granted hereunder in contravention of the provisions
hereof:
(a) the Note Trustee may open a new account in the name of the Current
Issuer and, if it does not, it shall nevertheless be deemed to
have done so at the time it received such notice; and
(b) all payments made by the Current Issuer to the Note Trustee after
the Note Trustee receives such notice shall be credited or deemed
to have been credited to the new account, and in no circumstances
whatsoever shall operate to reduce the Current Issuer Secured
Obligations as at the time the Note Trustee received such notice.
12.4 Avoidance of Payments: Any settlement, discharge or release between (a)
the Current Issuer and (b) the Note Trustee or any Receiver (the
"Relevant Person(s)") shall be conditional upon no security or payment
granted or made to the Relevant Person(s) by the Current Issuer or any
other person being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency or liquidation for the
time being in force and, in the event of such security or payment being
so avoided or reduced, the Relevant Person(s) shall be entitled to
recover the value or amount of such security or payment from the Current
Issuer and from the security subsequently as if such settlement,
discharge or release had not occurred.
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12.5 Retention of Charges: If the Note Trustee shall have reasonable grounds
for believing that the Current Issuer may be insolvent or deemed to be
insolvent pursuant to the provisions of the Insolvency Act 1986 (and
production of a solvency certificate of a duly authorised officer of the
Current Issuer shall be prima facie evidence of the solvency of the
Current Issuer) as at the date of any payment made by the Current Issuer
to the Note Trustee and that as a result, such payment may be capable of
being avoided or clawed back, the Note Trustee shall be at liberty to
retain the charges contained in or created pursuant to this Current
Issuer Deed of Charge until the expiry of a period of one month plus
such statutory period within which any assurance, security, guarantee or
payment can be avoided or invalidated after the payment and discharge in
full of all Current Issuer Secured Obligations notwithstanding any
release, settlement, discharge or arrangement which may be given or made
by the Note Trustee on, or as a consequence of, such payment or
discharge of liability provided that, if at any time within such period,
a petition 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 Current Issuer, or if the Current Issuer shall commence
to be wound up or to go into administration or any analogous proceedings
shall be commenced by or against the Current Issuer, as the case may be,
the Note Trustee shall be at liberty to continue to retain such security
for such further period as the Note Trustee may determine and such
security shall be deemed to continue to have been held as security for
the payment and discharge to the Note Trustee of all Current Issuer
Secured Obligations.
12.6 Possession: Entry into possession of the Current Issuer Charged Property
or any part thereof shall not render the Note Trustee or any Receiver of
the Current Issuer liable to account as mortgagee or creditor in
possession for anything except actual receipts. If and whenever the Note
Trustee or the Receiver enters into possession of the Current Issuer
Charged Property, it shall be entitled at any time to go out of such
possession.
12.7 Change of Name, etc.: This Deed shall remain valid and enforceable
notwithstanding any change in the name, composition or constitution of
the Note Trustee or the Current Issuer or any amalgamation, merger or
consolidation by the Note Trustee or the Current Issuer, with any other
corporation (whether, in the case of the Current Issuer, permitted under
the Current Issuer Transaction Documents or not).
13. Protection of Third Parties
13.1 No Enquiry: No purchaser from, or other person dealing with, the Note
Trustee or a Receiver shall be concerned to enquire whether any of the
powers exercised or purported to be exercised under this Current Issuer
Deed of Charge has arisen or become exercisable, whether the Current
Issuer Secured Obligations remain outstanding or have become payable,
whether the Note Trustee or the Receiver is authorised to act or as to
the propriety or validity of the exercise or purported exercise of any
power; and the title and the position of such a purchaser or other
person shall not be impeachable by reference to any of those matters and
all the protection to purchasers contained in Sections 104 and 107 of
the 1925 Act shall apply to any person purchasing from or dealing with
the Note Trustee or any such Receiver.
13.2 Receipts to Current Parties: Upon any sale, calling in, collection,
enforcement or other realisation of the Current Issuer Charged Property
in accordance with the terms hereof and upon any other dealing or
transaction under or pursuant to this Current
26
Issuer Deed of Charge, the receipt of the Note Trustee or any Receiver
shall be an absolute and a conclusive discharge to a purchaser or other
person dealing with the Note Trustee or such Receiver and shall relieve
it of any obligation to see to the application of any monies paid to or
by the direction of the Note Trustee or such Receiver.
14. Set-Off
The Note Trustee may at any time after the security created under this
Current Issuer Deed of Charge has become enforceable in accordance with
Clause 7.2 (Enforceable) without notice and notwithstanding any
settlement of account or other matter whatsoever combine or consolidate
all or any existing accounts of the Current Issuer whether in its own
name or jointly with others and held by it or any Current Issuer Secured
Creditor and may set-off or transfer all or any part of any credit
balance or any sum standing to the credit of any such account (whether
or not the same is due to the Current Issuer from the Note Trustee or
relevant Current Issuer Secured Creditor and whether or not the credit
balance and the account in debit or the Current Issuer Secured
Obligations are expressed in the same currency in which case the Note
Trustee is hereby authorised to effect any necessary conversions at its
prevailing rates of exchange) in or towards satisfaction of any of the
Current Issuer Secured Obligations (and on or at any time after the
security created under this Current Issuer Deed of Charge has become
enforceable in accordance with Clause 7.2 (Enforceable) the Security
Trustee may make such application notwithstanding any specified maturity
of any deposits), but subject always to the Current Issuer Priority of
Payments, and may in its absolute discretion estimate the amount of any
liability of the Current Issuer which is contingent or unascertained and
thereafter set-off such estimated amount and no amount shall be payable
by the Note Trustee to the Current Issuer unless and until all the
Current Issuer Secured Obligations have been ascertained and fully
repaid or discharged.
15. Representations and Covenants
15.1 Representations and Warranties:
(a) The Current Issuer hereby represents to the Note Trustee that it is, as
of the date hereof, the beneficial owner of all of the Current Issuer
Charged Property free and clear of all liens, claims, charges or
Encumbrances except those specifically created by this Current Issuer
Deed of Charge and undertakes that it will retain all rights associated
with ownership of the Current Issuer Charged Property free and clear of
all liens, claims, charges, Encumbrances except those specifically
created by this Current Issuer Deed of Charge or any other Current
Issuer Transaction Document.
(b) The Current Issuer represents that it has taken all necessary steps to
enable it to create the Security Interests in respect of the Current
Issuer Charged Property in accordance with this Current Issuer Deed of
Charge and has taken no action or steps which will or may prejudice its
right, title and interest in, to and under the Current Issuer Charged
Property.
15.2 Negative Covenants: The Current Issuer hereby undertakes that, for so
long as any Current Issuer Secured Obligation remains outstanding, the
Current Issuer shall not, save to the extent contemplated or provided in
the Current Issuer Transaction
27
Documents or unless it has obtained the prior written consent of the
Note Trustee:
(a) open or maintain any bank account or deposit account with any bank
or any other financial institution other than the Current Issuer
Bank Accounts or close the Current Issuer Bank Accounts;
(b) either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily,
sell, transfer, lease or otherwise dispose of or grant any option
over all or any part of its property, assets or undertaking or any
interest, estate, right, title or benefit therein or agree or
purport to do any of the foregoing;
(c) create or permit to subsist any Security Interest (unless arising
by operation of law) over or in respect of any of its property,
assets (including any uncalled capital) or undertaking, present or
future;
(d) incur any indebtedness in respect of borrowed money whatsoever or
give any guarantee or indemnity in respect of any indebtedness of
or of any obligation or any person;
(e) pay any dividend or make any other distribution to its shareholder
or issue any further shares;
(f) consolidate or merge with any other person or convey or transfer
its properties or assets substantially as an entirety to any other
person;
(g) consent to any amendment to, or variation of or agree to waive or
authorise any breach of any provision of any of the Current Issuer
Transaction Documents or permit any person whose obligations form
part of the Current Issuer Charged Property to be released from
its respective obligations;
(h) offer to surrender to any company any amounts which are available
for surrender by way of group relief within Chapter IV of Part X
of the Income and Corporation Taxes Act 1988 except for full
payment at the current applicable rate of corporation tax applied
to the surrendered amount and payable at the date when corporation
tax is due to be paid by the claimant or would be due in the
absence of the surrender;
(i) do any act or thing the effect of which would be to make the
Current Issuer resident in any jurisdiction other than the United
Kingdom;
(j) permit any person other than the Current Issuer and the Note
Trustee to have any equitable interest in any of its property,
assets or undertakings or any interest, estate, right, title or
benefit therein;
(k) purchase or otherwise acquire any Note or Notes (including the
Current Issuer Notes); or
(l) engage in any activities in the United States (directly or through
agents), nor derive any income from United States sources as
determined under United States income tax principles and will not
hold any property if doing so would
28
cause it to be engaged or deemed to be engaged in a trade or
business within the United States as determined under United
States tax principles.
15.3 Positive covenants: The Current Issuer covenants and undertakes with the
Note Trustee for the benefit of the Current Issuer Secured Creditors
that it shall:
(a) Registration of Security: file or procure the filing with the
Registrar of Companies pursuant to Chapter I of Part XII of the
Companies Act 1985 of duly completed Forms 395 together with an
executed original of this Current Issuer Deed of Charge and the
required fee within 21 days after the date of this Current Issuer
Deed of Charge;
(b) Notice of Assignment: on the date hereof join with the Note
Trustee in giving notice of the assignments and the security
created under or pursuant to this Current Issuer Deed of Charge to
Funding, the Security Trustee and each other party to any Current
Issuer Transaction Document not being a party to this Current
Issuer Deed of Charge and for the purposes of the Jersey Security
Interests to any person from whom the Current Issuer would have
been entitled to claim the collateral (but for the Jersey Security
Interests) and on any date hereafter (to the extent only that such
notice and acknowledgement is not given under or pursuant to this
Current Issuer Deed of Charge) join with the Note Trustee in
giving notice of the assignments and the security created under
this Current Issuer Deed of Charge to any party to a Current
Issuer Transaction Document entered into by the Current Issuer
after the date hereof and, for the purposes of the Jersey Security
Interests, to any person from whom the Current Issuer would have
been entitled to claim the collateral (but for the Jersey Security
Interests), in each case in the form (or substantially in the
form) set out in Schedule 3 (Form of Notice of Assignment);
(c) Accounts for Stock Exchange: cause to be prepared and certified by
the Auditors of the Current Issuer in respect of each Financial
Year, accounts in such form as will comply with relevant legal and
accounting requirements for the time being and all requirements
for the time being of any stock exchange on which the Current
Issuer Notes are listed;
(d) Books and Records: at all times keep or procure the keeping of
such books of account and records as may be necessary to comply
with all applicable laws and so as to enable accounts of the
Current Issuer to be prepared and allow the Note Trustee and any
person or persons appointed by the Note Trustee free access to
such books of account and records at all reasonable times during
normal business hours upon reasonable notice in writing, provided
that such inspection shall only be for the purposes of carrying
out its duties under this Current Issuer Deed of Charge and any
information so obtained shall only be used and passed on to any
other person for the purpose of the Note Trustee carrying out its
duties under this Current Issuer Deed of Charge;
(e) Notice of Current Issuer Note Event of Default: give notice in
writing to the Note Trustee forthwith upon becoming aware of the
occurrence of any Current Issuer Note Event of Default or Current
Issuer Potential Note Event of Default including the status of any
such default or matter and what action the Current
29
Issuer is taking or proposes to take with respect thereto, without
waiting for the Note Trustee to take any action;
(f) Certificates Relating to Financial Information: give to the Note
Trustee (a) within seven days after demand by the Note Trustee
therefor and (b) (without the necessity for any such demand)
promptly after the publication of its audited accounts in respect
of each Financial Year commencing with the Financial Year first
ending after the date hereof and in any event not later than 180
days after the end of each such Financial Year a certificate
signed by two directors of the Current Issuer to the effect that
as at a date not more than seven days before delivering such
certificate (the "certification date") there did not exist and had
not existed since the certification date of the previous
certificate (or in the case of the first such certificate the date
hereof) any Current Issuer Note Event of Default or any Current
Issuer Potential Note Event of Default (or if such then exists or
existed specifying the same) and that during the period from and
including the certification date of the last such certificate (or
in the case of the first such certificate the date hereof) to and
including the certification date of such certificate the Current
Issuer has complied with all its obligations contained in this
Current Issuer Deed of Charge and each of the other Current Issuer
Transaction Documents or (if such is not the case) specifying the
respects in which it has not so complied;
(g) Further Assurances: so far as permitted by applicable law, at all
times execute all such further documents and do all such further
acts and things as may be necessary at any time or times in the
opinion of the Note Trustee to give effect to this Current Issuer
Deed of Charge and the other Current Issuer Transaction Documents;
(h) Compliance with Current Issuer Transaction Documents: observe and
comply with its obligations and use its reasonable endeavours to
procure that each other party to any of the Current Issuer
Transaction Documents complies with and performs all its
respective obligations under each Current Issuer Transaction
Document and not make any amendment or modification to such
agreement or agree to waive or authorise any breach thereof
without the prior written approval of the Note Trustee and notify
the Note Trustee forthwith upon becoming aware of any breach by
any such other party to any Current Issuer Transaction Document;
(i) Information: so far as permitted by applicable law, give or
procure to be given to the Note Trustee such opinions,
certificates, information and evidence as it shall require and in
such form as it shall require (including without limitation the
procurement by the Current Issuer of all such certificates called
for by the Note Trustee pursuant to this Current Issuer Deed of
Charge) for the purpose of the discharge or exercise of the
duties, trusts, powers, authorities and discretions vested in it
under this Current Issuer Deed of Charge or by operation of law;
(j) Taxes: duly and promptly pay and discharge all Taxes imposed upon
it or its assets unless such Taxes are, in the opinion of the Note
Trustee, being contested in good faith by the Current Issuer;
30
(k) Basis Rate Swap Agreement: in the event of termination of the
Current Issuer Basis Rate Swap Agreement, notify the Note Trustee
and the Rating Agencies and use its best efforts to enter into a
replacement basis rate swap agreement upon terms acceptable to the
Rating Agencies and the Note Trustee with a basis rate swap
provider whom the Rating Agencies have previously confirmed in
writing to the Current Issuer and the Note Trustee will not cause
the then-current ratings of the Current Issuer Notes to be
downgraded, withdrawn or qualified;
(l) Currency Swap Agreements:
(i) Dollar Currency Swap Agreements: in the event of termination
of any Transaction (as defined in the Current Issuer Dollar
Currency Swap Agreements) under any Current Issuer Dollar
Currency Swap Agreement, notify the Note Trustee and the
Rating Agencies and use its best efforts to enter into a
replacement of that Transaction in respect of the Dollar
Notes (or, as applicable, the relevant class of the Dollar
Notes) upon terms acceptable to the Rating Agencies and the
Note Trustee with a dollar currency swap provider whom the
Rating Agencies have previously confirmed in writing to the
Current Issuer and the Note Trustee will not cause the
then-current ratings of the Current Issuer Notes to be
downgraded, withdrawn or qualified;
(ii) Euro Currency Swap Agreements: in the event of termination
of any Transaction (as defined in the Current Issuer Euro
Currency Swap Agreements) under any Current Issuer Euro
Currency Swap Agreement, notify the Note Trustee and the
Rating Agencies and use its best efforts to enter into a
replacement of that Transaction in respect of the Euro Notes
(or, as applicable, the relevant class of the Euro Notes)
upon terms acceptable to the Rating Agencies and the Note
Trustee with a euro currency swap provider whom the Rating
Agencies have previously confirmed in writing to the Current
Issuer and the Note Trustee will not cause the then-current
ratings of the Current Issuer Notes to be downgraded,
withdrawn or qualified;
(m) Interest Rate Swap Agreement: in the event of termination of any
Transaction (as defined in the Current Issuer Interest Rate Swap
Agreement) under the Current Issuer Interest Rate Swap Agreement,
notify the Note Trustee and the Rating Agencies and use its best
efforts to enter into a replacement of that Transaction in respect
of the Series 3 Class A2 Notes upon terms acceptable to the Rating
Agencies and the Note Trustee with an interest rate swap provider
whom the Rating Agencies have previously confirmed in writing to
the Current Issuer and the Note Trustee will not cause the then
current ratings of the Current Issuer Notes to be downgraded,
withdrawn or qualified;
(n) Bank Accounts: in the event of termination of the Current Issuer
Bank Account Agreement, subject to and in accordance with the
provisions of the Current Issuer Bank Account Agreement use its
reasonable endeavours to enter into a replacement bank account
agreement; and
31
(o) Cash Management Agreement: in the event of termination of the
Current Issuer Cash Management Agreement, subject to and in
accordance with the provisions of the Current Issuer Cash
Management Agreement, use its reasonable endeavours to enter into
a replacement cash management agreement.
In addition to the foregoing, the Current Issuer hereby covenants with
each of the Current Issuer Swap Providers, that it shall not make any
amendment or modification to, or exercise any waiver in respect of, the
Current Issuer Cash Management Agreement which would be adversely
prejudicial to the interests of any Current Issuer Swap Provider,
without the prior written consent of the affected Current Issuer Swap
Provider save that to the extent required, such consent shall not be
unreasonably withheld or delayed.
16. Note Trustee Provisions
16.1 Supplement to Trustee Acts: It is hereby agreed that Clause 10
(Supplement to Trustee Acts) of the Current Issuer Trust Deed shall be
incorporated in and shall apply, mutatis mutandis, to this Current
Issuer Deed of Charge (and for that purpose references therein to "these
presents" or to "this Deed" shall be construed as references to this
Current Issuer Deed of Charge) provided that for the purposes of Clause
10.3(q) of the Current Issuer Trust Deed at any time after the
redemption in full of the Current Issuer Notes, the Note Trustee shall
have regard to the interests of the Current Issuer Secured Creditor
which ranks next highest under the Current Issuer Post-Enforcement
Priority of Payment.
16.2 Appointment, Removal and Retirement: It is hereby agreed that Clause 14
(Appointment, Removal and Retirement of Note Trustee) of the Current
Issuer Trust Deed shall be incorporated in and shall apply, mutatis
mutandis, to this Current Issuer Deed of Charge (and for that purpose
references therein to "these presents" or to "this Deed" shall be
construed as references to this Current Issuer Deed of Charge) provided
that for the purposes of this Current Issuer Deed of Charge it shall be
an additional requirement that the Note Trustee under this Current
Issuer Deed of Charge shall be the same person or persons as the Note
Trustee under the Current Issuer Trust Deed.
16.3 Remuneration and Indemnification of Note Trustee: It is hereby agreed
that Clause 9 (Remuneration and Indemnification of Note Trustee) of the
Current Issuer Trust Deed shall be incorporated in and shall apply,
mutatis mutandis, to this Current Issuer Deed of Charge (and for that
purpose references therein to "these presents" or to "this Deed" shall
be construed as references to this Current Issuer Deed of Charge).
16.4 Meetings of Noteholders: It is hereby agreed that Schedule 4 (Provisions
for Meetings of Noteholders) of the Current Issuer Trust Deed shall be
incorporated in and shall apply, mutatis mutandis, to this Current
Issuer Deed of Charge.
16.5 Investment of Moneys: It is hereby agreed that Clause 8.3 (Authorised
Investments) of the Current Issuer Trust Deed shall be incorporated in
and shall apply, mutatis mutandis, to this Current Issuer Deed of
Charge.
16.6 Acknowledgement: Each of the parties to this Current Issuer Deed of
Charge hereby
32
acknowledges that it is bound by the provisions of the Current Issuer
Trust Deed which are incorporated by reference into this Current Issuer
Deed of Charge and confirms that it has received a copy of the Current
Issuer Trust Deed.
16.7 Jersey Law Waivers:
(a) Any right which at any time the Current Issuer has under the
existing or future laws of Jersey whether by virtue of the droit
de discussion or otherwise to require that recourse be had to the
assets of any other person before any claim is enforced against
the Current Issuer in respect of the obligations hereby assumed by
the Current Issuer is hereby abandoned and waived.
(b) The Current Issuer undertakes that if at any time any person
indemnified sues the Current Issuer in respect of any such
obligations and the person in respect of whose obligations the
indemnity is given is not sued also, the Current Issuer shall not
claim that such person be made a party to the proceedings and the
Current Issuer agrees to be bound by this indemnity whether or not
it is made a party to legal proceedings for the recovery of the
amount due or owing to the person indemnified, as aforesaid, by
the person in respect of whose obligations the indemnity is given
and whether the formalities required by any law of Jersey whether
existing or future in regard to the rights or obligations of
securities shall or shall not have been observed.
(c) Any right which the Current Issuer may have under the existing or
future laws of Jersey whether by virtue of the droit de division
or otherwise to require that any liability under the indemnity
referred to in (b) above be divided or apportioned with any other
person or reduced in any manner whatsoever is hereby abandoned and
waived.
17. Modification and Waiver
17.1 Modification: The Note Trustee may without the consent or sanction of
the Noteholders or any other Current Issuer Secured Creditor at any time
and from time to time concur with the Current Issuer in making any
modification (except a Basic Terms Modification (as defined in paragraph
1 of Schedule 4 (Provisions for Meetings of Noteholders) to the Current
Issuer Trust Deed) (i) to this Current Issuer Deed of Charge, the
Current Issuer Notes, the Current Issuer Trust Deed or to any of the
other Transaction Documents which in the opinion of the Note Trustee it
may be proper to make PROVIDED THAT the Note Trustee is of the opinion
that such modification will not be materially prejudicial to the
interests of the Noteholders or (ii) to this Current Issuer Deed of
Charge, the Current Issuer Notes, the Current Issuer Trust Deed or any
of the other Transaction Documents if in the opinion of the Note Trustee
such modification is of a formal, minor or technical nature or to
correct a manifest error or proven error. For the purposes of this
Clause 17.1 (Modification), a proposed modification will not materially
harm the interest of any Noteholder solely as a result of any New Issuer
executing a Deed of Accession pursuant to Clause 3.12 (New Intercompany
Loans) of the Funding Deed of Charge or Clause 2.2 (New Intercompany
Loan Agreement) of the Intercompany Loan Terms and Conditions. Any such
modification may be made on such terms and subject to such conditions
(if any) as the Note Trustee may determine, shall be binding upon the
Current Issuer and the Current Issuer Secured Creditors and, unless the
Note Trustee agrees otherwise,
33
shall be notified by the Current Issuer to the Noteholders in accordance
with the Conditions and to the other Current Issuer Secured Creditors as
soon as practicable thereafter. So long as any of the Current Issuer
Notes are rated by the Rating Agencies, the Current Issuer shall notify
the Rating Agencies in writing as soon as reasonably practicable
thereafter of any modification to the provisions of this Current Issuer
Deed of Charge, the Current Issuer Notes, the Current Issuer Trust Deed
or any of the other Current Issuer Transaction Documents.
17.2 Waiver: Subject as expressly provided otherwise in the Current Issuer
Notes or in any other Transaction Document, the Note Trustee may from
time to time and at any time without the consent or sanction of the
Noteholders or any other Current Issuer Secured Creditor and without
prejudice to its rights in respect of any subsequent breach, but only if
and in so far as in its opinion the interests of the Noteholders shall
not be materially prejudiced thereby waive or authorise any breach or
proposed breach by the Current Issuer or any other party thereto of any
of the covenants or provisions contained in this Current Issuer Deed of
Charge or in any of the other Transaction Documents or determine that
any Current Issuer Note Event of Default shall not be treated as such
for the purposes of this Current Issuer Deed of Charge, the Current
Issuer Notes and the Current Issuer Trust Deed PROVIDED ALWAYS THAT the
Note Trustee shall not exercise any powers conferred on it by this
Clause 17.2 (Waiver) in contravention of any express direction given by
Extraordinary Resolution or by a request in writing of the relevant
Noteholders in accordance with the Conditions (but so that no such
direction or request shall affect any waiver, authorisation or
determination previously given or made). Any such waiver, authorisation
or determination:
(a) may be given or made on such terms and subject to such conditions
(if any) as the Note Trustee may determine;
(b) shall be binding on the Noteholders and the other Current Issuer
Secured Creditors, if, but only if, the Note Trustee shall so
require; and
(c) shall be notified by the Current Issuer to the Noteholders in
accordance with the Conditions and to the other Current Issuer
Secured Creditors as soon as practicable thereafter.
The provisions of this Clause 17.2 (Waiver) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Current
Issuer Deed of Charge, the Current Issuer Notes and the Current Issuer
Trust Deed as permitted by the Trust Indenture Act.
18. Miscellaneous Provisions
18.1 Evidence of Indebtedness: In any action, proceedings or claim relating
to this Current Issuer Deed of Charge or the charges contained in this
Current Issuer Deed of Charge, a statement as to any amount due to any
Current Issuer Secured Creditor or of the Current Issuer Secured
Obligations or any part thereof or a statement of any amounts which have
been notified to the Note Trustee as being amounts due to any Current
Issuer Secured Creditor which is certified as being correct by an
officer of the Note Trustee or an officer of the relevant Current Issuer
Secured Creditor shall, save in the case of manifest error, be
conclusive evidence that such amount is in fact due
34
and payable.
18.2 Liability: All the liabilities and obligations of the Current Issuer
under or by virtue of this Current Issuer Deed of Charge shall not be
impaired by:
(a) any failure of this Current Issuer Deed of Charge to be legal,
valid, binding and enforceable as regards the Current Issuer
whether as a result of a lack of corporate powers or of directors'
authority, defective execution or for any other reason whatsoever;
(b) any giving of time, forbearance, indulgence or waiver as regards
the Current Issuer;
(c) a discharge or release of the Current Issuer; or
(d) any other matter or event whatsoever whether similar to the
foregoing or not which might have the effect of impairing all or
any of its liabilities or obligations except proper and valid
payment or discharge of all Current Issuer Secured Obligations and
amounts whatsoever which this Current Issuer Deed of Charge
provides are to be paid by the Current Issuer or an absolute
discharge or release of the Current Issuer signed by the Current
Issuer Secured Creditors and the Note Trustee.
18.3 Current Issuer Secured Creditors: Each Current Issuer Secured Creditor
shall be bound by the provisions of this Current Issuer Deed of Charge
as if it contained covenants by each Current Issuer Secured Creditor in
favour of the Note Trustee and every other Current Issuer Secured
Creditor to observe and be bound by all the provisions of this Current
Issuer Deed of Charge expressed to apply to the Current Issuer Secured
Creditors.
19. Rights cumulative
The respective rights of the Note Trustee, the Current Issuer Secured
Creditors and any Receiver to this Current Issuer Deed of Charge are
cumulative and may be exercised as often as each considers appropriate
and are in addition to their respective rights under the general law. No
failure on the part of the Note Trustee, the Current Issuer Secured
Creditors or any Receiver to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies in
this Current Issuer Deed of Charge are cumulative and not exclusive of
any remedies provided by law.
20. Assignment
None of the Current Issuer Secured Creditors may assign, encumber or
transfer all or any part of its rights or benefits and/or transfer its
obligations under this Current Issuer Deed of Charge without the prior
written consent of the Note Trustee.
21. Non Petition Covenant; Corporate Obligations
21.1 Non Petition: Each of the parties hereto hereby agrees that it shall not
institute against the Current Issuer any winding-up, administration,
insolvency or similar
35
proceedings for so long as any sum is outstanding under Current Issuer
Notes or for two years plus one day since the last day on which any such
sum was outstanding provided that the Note Trustee may prove or lodge a
claim in the event of a liquidation initiated by any other person.
21.2 Corporate Obligations: To the extent permitted by law, no recourse under
any obligation, covenant, or agreement of any person contained in this
Current Issuer Deed of Charge shall be had against any shareholder,
officer or director of such person as such, by the enforcement of any
assessment or by any legal proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement
is a corporate obligation of each person expressed to be a party hereto
and no personal liability shall attach to or be incurred by the
shareholders, officers, agents or directors of such person as such, or
any of them, under or by reason of any of the obligations, covenants or
agreements of such person contained in this Current Issuer Deed of
Charge, or implied therefrom, and that any and all personal liability
for breaches by such person of any of such obligations, covenants or
agreements, either under any applicable law or by statute or
constitution, of every such shareholder, officer, agent or director is
hereby expressly waived by each person expressed to be a party hereto as
a condition of and consideration for the execution of this Current
Issuer Deed of Charge.
22. Notices
Any notices or other communication or document to be given or delivered
pursuant to this Current Issuer Deed of Charge to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or by facsimile transmission and shall be deemed to be given (in
the case of facsimile transmission) when despatched or (where delivered
by hand) on the day of delivery if delivered before 17.00 hours on a
London Business Day or on the next London Business Day if delivered
thereafter or (in the case of first class post) when it would be
received in the ordinary course of the post and shall be sent:
(a) in the case of the Current Issuer, to Granite Mortgages 04-3 plc,
Fifth Floor, 100 Wood Street, London EC2V 7EX (facsimile number
020 7606 0643) for the attention of the Company Secretary with a
copy to Northern Rock plc, Northern Rock House, Gosforth,
Newcastle upon Tyne NE3 4PL (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, 48th
Floor, One Canada Square, London E14 5AL, attention Corporate
Trust (Global Structured Finance) (facsimile number 020 7964
6399);
(c) in the case of the Principal Paying Agent, the Agent Bank, the
Registrar, the Transfer Agent or the Account Bank, to Citibank,
N.A., 5 Carmelite Street, London, EC4Y 0PA;
(d) in the case of the Current Issuer Cash Manager to Northern Rock
plc, Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
36
(e) in the case of the U.S. Paying Agent, to Citibank, N.A., 111 Wall
Street, 14th Floor, Zone 3, New York, N.Y. 10043, U.S.A.
(facsimile number 212 657 3862) for the attention of Global Agency
and Trust;
(f) in the case of the Basis Rate Swap Provider, to Northern Rock plc,
Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL
(facsimile number 0191 213 2203) for the attention of the Group
Secretary;
(g) in the case of the Dollar Currency Swap Provider to [o] (facsimile
number [o]) for the attention of [o];
(h) in the case of the Euro Currency Swap Provider, to [o] (facsimile
number [o]) for the attention of [o];
(i) in the case of the Interest Rate Swap Provider to [o] (facsimile
number [o]) for the attention of [o];
(j) in the case of the Corporate Services Provider, to Law Debenture
Corporate Services Limited, Fifth Floor, 100 Wood Street, London
EC2V 7EX (facsimile number 020 7606 0643) for the attention of the
Company Secretary;
(k) in the case of Moody's, to Moody's Investor Services, 1st Floor, 2
Minster Court, Mincing Lane, London EC3R 7XB (facsimile number 020
7772 5400) for the attention of Head of Monitoring Group,
Structured Finance;
(l) in the case of S&P, to Standard & Poor's, 20 Canada Square, Canary
Wharf, London E14 5LH (facsimile number 020 7176 3598) for the
attention of the Structured Finance Surveillance Group; and
(m) in the case of Fitch, to Fitch Ratings Limited, Eldon House, 2
Eldon Street, London EC2M 7UA (facsimile number: 020 7417 6262)
for the attention of European Structured Finance,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by fifteen days prior written notice in accordance
with the provisions of this Clause 22 (Notices).
23. Third Party Rights
A person who is not a party to this Current Issuer Deed of Charge may
not enforce any of its terms under the Contracts (Rights of Third
Parties) Act 1999, but this shall not affect any right or remedy of a
third party which exists or is available apart from that Act.
24. Execution in Counterparts; Severability
24.1 Counterparts: This Deed may be executed in any number of counterparts
(manually or by facsimile) and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and
the same instrument.
37
24.2 Severability: Where any provision in or obligation under this Current
Issuer Deed of Charge shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations under this Current Issuer Deed of Charge, or
of such provision or obligation in any other jurisdiction, shall not be
affected or impaired thereby.
25. Governing Law and Jurisdiction; Appropriate Forum
25.1 Governing Law: This Deed is governed by, and shall be construed in
accordance with, English law, save that those parts of this Current
Issuer Deed of Charge concerned with the creation, subsistence or
enforcement of the Jersey Security Interests shall be governed by, and
shall be construed in accordance with Jersey law.
25.2 Jurisdiction: Each of the parties hereto irrevocably agrees that the
courts of England shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise
out of or in connection with this Current Issuer Deed of Charge and, for
such purposes, irrevocably submits to the jurisdiction of such courts.
25.3 Appropriate Forum: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and
to settle any disputes, and agrees not to claim that any such court is
not a convenient or appropriate forum.
IN WITNESS of which this Current Issuer Deed of Charge has been executed by
the parties hereto as a deed which has been delivered on the date first
appearing on page one.
38
EXECUTION PAGE
The Current Issuer
Executed by
GRANITE MORTGAGES 04-3 PLC
as its deed as follows: By:________________________________________
Signed for and on its for and on behalf of LDC
behalf by one of its Securitisation Director No. 1
directors and by another Limited
of its directors/its - Director
secretary
Name: Clive Rakestrow
-----------------------------------
By:________________________________________
for and on behalf of LDC
Securitisation Director No. 2
Limited
- Director
Name: Sharon Tyson
-----------------------------------
The Note Trustee
Executed by
THE BANK OF NEW YORK
as its deed as follows: By:________________________________________
Signed for and on its Duly Authorised Attorney/Signatory
behalf by one of its duly
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 Duly Authorised Attorney/Signatory
behalf by one of its duly
authorised attorneys/
signatories
Name:
----------------------------------
39
The US Paying Agent
Executed by
CITIBANK, N.A.
as follows: By:________________________________________
Signed for and on its Duly Authorised Attorney/Signatory
behalf by one of its duly
authorised attorneys/
signatories
Name:
----------------------------------
The Current Issuer Cash Manager and the Basis Rate Swap Provider
Executed by
NORTHERN ROCK PLC
as its deed as follows: By:________________________________________
Signed for and on its Duly Authorised Attorney/Signatory
behalf by one of its duly
authorised attorneys/
signatories
Name:
----------------------------------
Signature:____________________
Witness
Full Name:___________________
Occupation: Solicitor
Address: c/o Sidley Austin Brown & Wood
Woolgate Exchange
25 Basinghall Street
London EC2V 5HA
The Corporate Service Provider
Executed by
LAW DEBENTURE CORPORATE
SERVICES LIMITED
as its deed as follows: By:________________________________________
Signed for and on its Director
behalf by one of its
directors and by another
of its directors/its Name:
secretary ------------------------------------
By:________________________________________
Director/Secretary
Name:
-----------------------------------
40
The Dollar Currency Swap Provider
Executed by
[o]
as its deed as follows: By:________________________________________
Signed for and on its Duly Authorised Signatory
behalf by one of its duly
authorised signatories
Name:
----------------------------------
The Euro Currency Swap Provider
Executed by
[o]
as its deed as follows: By:________________________________________
Signed for and on its Duly Authorised Signatory
behalf by one of its duly
authorised signatories
Name:
----------------------------------
The Interest Rate Swap Provider
Executed by
[o]
as its deed as follows: By:________________________________________
Signed for and on its Duly Authorised Signatory
behalf by one of its duly
authorised signatories
Name:
----------------------------------
41
SCHEDULE 1
FORM OF SECURITY POWER OF ATTORNEY
THIS POWER OF ATTORNEY is made on [o] by Granite Mortgages 04-3 plc
(registered number 5168395) a private limited liability company incorporated
under the laws of England and Wales whose registered office is at Fifth Floor,
100 Wood Street, London EC2V 7EX (the "Principal").
WHEREAS
(1) By virtue of a Deed (as amended, varied, supplemented or novated from
time to time the "Current Issuer Deed of Charge") dated [22] September
2004 between Granite Mortgages 04-3 plc, The Bank of New York as Note
Trustee and others, provision was made for the execution by the
Principal of this Power of Attorney.
(2) Words and phrases in this Power of Attorney shall (save where
expressed to the contrary) have the same meanings respectively as the
words and phrases in the Current Issuer Deed of Charge.
NOW THIS POWER OF ATTORNEY WITNESSETH
1. The Principal hereby irrevocably (within the meaning of Section 4 of
the Powers of Attorney Act 1971) and by way of security for the
payment and performance of the Current Issuer Secured Obligations and
the covenants, conditions, obligations and undertakings on the part of
the Principal contained in the Current Issuer Deed of Charge and the
other Current Issuer Transaction Documents to which the Principal is a
party from time to time appoints The Bank of New York and any other
person or persons for the time being the Note Trustee or Note Trustees
of and under the Current Issuer Deed of Charge (the "Attorney") and
each and every person to whom the Note Trustee shall from time to time
have delegated the exercise of the power of attorney conferred by this
Power of Attorney (each a "Delegate") and any receiver including any
administrative receiver and any manager (the "Receiver") and/or
administrator (the "Administrator") appointed from time to time by the
Attorney or on its behalf its true and lawful attorney for and in the
Principal's name or otherwise jointly and severally to sign, seal,
execute, deliver, perfect and do any assurance, act, matter or thing
which the Attorney, Delegate, Receiver or Administrator considers in
each case to be necessary for the protection or preservation of the
Attorney's and the Current Issuer Secured Creditors' interests and
rights (as described in the Current Issuer Deed of Charge) in and to
the Current Issuer Charged Property or which ought to be done by the
Principal under the covenants, undertakings and provisions contained
in the Current Issuer Deed of Charge and the other Current Issuer
Transaction Documents to which the Principal is a party from time to
time and generally to in its name and on its behalf to exercise all or
any of the powers, authorities or discretions conferred by or pursuant
to the Current Issuer Deed of Charge on the Note Trustee and/or any
Receiver whether on or at any time after the security has become
enforceable in accordance with Clause 7.2 (Enforceable) of the Current
Issuer Deed of Charge or in any other circumstances where the Attorney
has become entitled to take any of the
42
steps referred to in the Current Issuer Deed of Charge including
(without limitation) any or all of the following:
(a) to do every act or thing which the Attorney, Delegate,
Receiver or Administrator may deem to be necessary, proper or
expedient for getting in any of the Current Issuer Charged
Property and/or fully and effectively vesting, transferring or
assigning the Current Issuer Charged Property or any part
thereof and/or the Principal's estate, right, title, benefit
and/or interest therein or thereto in or to the Attorney and
its successors in title or other person or persons entitled to
the benefit thereof or for carrying into effect any other
dealing with the Current Issuer Charged Property whatsoever
permitted under the Current Issuer Deed of Charge in the same
manner and as fully and effectively as the Principal could
have done;
(b) the power by writing under its hand by an officer of the
Attorney (including every Receiver appointed under the Current
Issuer Deed of Charge) from time to time to appoint a
substitute attorney (each a "Substitute") who shall have power
to act on behalf of the Principal as if that Substitute shall
have been originally appointed Attorney by this Power of
Attorney and/or to revoke any such appointment at any time
without assigning any reason therefor.
2. In favour of the Attorney, any Delegate, any Receiver and/or
Administrator and/or Substitute, or a person dealing with any of them
and the successors and assigns of such a person, all acts properly
done and documents executed or signed by the Attorney, a Delegate, a
Receiver, an Administrator or a Substitute in the purported exercise
of any power conferred by this Power of Attorney shall for all
purposes be valid and binding on the Principal and its successors and
assigns.
3. The Principal irrevocably and unconditionally undertakes to indemnify
the Attorney and each Delegate, Receiver and/or Administrator and/or
Substitute appointed from time to time by the Attorney and their
respective estates (each an "Indemnified Party") against all actions,
proceedings, claims, costs, expenses and liabilities of every
description arising from the exercise, or the purported exercise, of
any of the powers conferred by this Power of Attorney, save where the
same arises as the result of the fraud, negligence or wilful default
of the relevant Indemnified Party or its officers or employees.
4. The provisions of Clause 3 (Current Issuer Security) of the Current
Issuer Deed of Charge shall continue in force after the revocation or
termination, howsoever arising, of this Power of Attorney.
5. The laws of England and Wales shall apply to this Power of Attorney
and the interpretation thereof and to all acts of the Attorney and
each Delegate, Receiver and/or Administrator and/or Substitute carried
out or purported to be carried out under the terms hereof except that
in relation to any action taken by the Attorney, each Delegate,
Receiver and/or Administrator/and or Substitute in respect of the
Jersey Security Interests or the Current Issuer Jersey Secured
Property, the laws of Jersey shall apply.
6. The Principal hereby agrees at all times hereafter to ratify and
confirm whatsoever the said Attorney or its attorney or attorneys or
any Delegate, Receiver or Administrator
43
or Substitute shall properly and lawfully do or cause to be done in
and concerning the Current Issuer Charged Property.
IN WITNESS whereof this Power of Attorney has been executed as a deed by the
Principal the day and year first before written.
EXECUTED AS A DEED by )
GRANITE MORTGAGES 04-3 PLC )
acting by: )
Director
Name:
Title:
Director/Secretary
Name:
Title:
44
SCHEDULE 2
CURRENT ISSUER POST-ENFORCEMENT PRIORITY OF PAYMENTS
Following enforcement of the Current Issuer Security, on each Payment Date the
Note Trustee (or the Current Issuer Cash Manager on its behalf) will apply
amounts received or recovered as follows:
(A) first, to pay amounts due to the Note Trustee (and any Receiver
appointed by the Note Trustee) together with interest and (if
necessary) VAT on those amounts and to provide for any amounts
then due or to become due and payable to the Note Trustee and
the Receiver under the provisions of the Current Issuer Trust
Deed, the Current Issuer Deed of Charge and any other
Transaction Document;
(B) second, to pay, in no order of priority among them but in
proportion to the respective amounts due, the Agent Bank, the
Paying Agents, the Transfer Agent and the Registrar, together
with interest and (if necessary) VAT on those amounts and to
provide for any costs, charges, liabilities and expenses then
due or to become due and payable to them under the provisions
of the Current Issuer Paying Agent and Agent Bank Agreement;
(C) third, in no order of priority among them but in proportion to
the respective amounts due, towards payment of amounts
(together with (if necessary) VAT on those amounts) due and
payable to the Current Issuer Cash Manager under the Current
Issuer Cash Management Agreement and to the Corporate Services
Provider under the Current Issuer Corporate Services Agreement
and to the Account Bank under the Current Issuer Bank Account
Agreement;
(D) fourth, in no order of priority among them but in proportion to
the respective amounts due, to pay:
(i) amounts (including such part of any termination
payment) due to the Basis Rate Swap Provider (except
for any termination payment or any part thereof due
and payable to the Basis Rate Swap Provider as a
result of a Basis Rate Swap Provider Default by that
Basis Rate Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Basis Rate Swap and applied in accordance with
this order of priority of payments);
(ii) amounts (including such part of any termination
payment) due to the Series 1 Class A1 Dollar Currency
Swap Provider under the Series 1 Class A1 Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap Provider
as a result of a Dollar Currency Swap Provider Default
by that Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a
45
Downgrade Termination Event in respect of the Series 1
Class A1 Dollar Currency Swap and applied in
accordance with this order of priority of payments)
and from amounts received from the Series 1 Class A1
Dollar Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 1 Class A1
Notes until the Series 1 Class A1 Notes have been
repaid in full;
(iii) amounts (including such part of any termination
payment) due to the Series 1 Class A2 Euro Currency
Swap Provider under the Series 1 Class A2 Euro
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap Provider
as a result of a Euro Currency Swap Provider Default
by that Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 1 Class A2 Euro Currency Swap and applied
in accordance with this order of priority of payments)
and from amounts received from the Series 1 Class A2
Euro Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 1 Class
A2 Notes until the Series 1 Class A2 Notes have been
repaid in full;
(iv) amounts (including such part of any termination
payment) due to the Series 1 Class A3 Dollar Currency
Swap Provider under the Series 1 Class A3 Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap Provider
as a result of a Dollar Currency Swap Provider Default
by that Swap Provider, save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 1 Class A3 Dollar Currency Swap and applied
in accordance with this order of priority of payments)
and from the amounts received from the Series 1 Class
A3 Dollar Currency Swap Provider to pay interest due
or overdue and to repay principal on the Series 1
Class A3 Notes until the Series 1 Class A3 Notes have
been repaid in full;
(v) amounts (including such part of any termination
payment) due to the Series 2 Class A1 Dollar Currency
Swap Provider under the Series 2 Class A1 Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap Provider
as a result of a Dollar Currency Swap Provider Default
by that Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 2 Class A1 Dollar Currency Swap and applied
in accordance with this order of priority of payments)
and from amounts received from the Series 2 Class A1
Dollar Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 2 Class
A1 Notes until the Series 2 Class A1 Notes have been
repaid in full;
(vi) amounts (including such part of any termination
payment) due to the Series 2 Class A2 Euro Currency
Swap Provider under the Series 2
46
Class A2 Euro Currency Swap (except for any
termination payment or any part thereof due and
payable to that Swap Provider as a result of a Euro
Currency Swap Provider Default by that Swap Provider,
save to the extent such termination payment may be
satisfied by any Swap Replacement Payment received by
the Current Issuer following a Downgrade Termination
Event in respect of the Series 2 Class A2 Euro
Currency Swap and applied in accordance with this
order of priority of payments) and from the amounts
received from the Series 2 Class A2 Euro Currency Swap
Provider to pay interest due or overdue and to repay
principal on the Series 2 Class A2 Notes until the
Series 2 Class A2 Notes have been repaid in full;
(vii) interest due or overdue and to repay principal of the
Series 3 Class A1 Notes until the Series 3 Class A1
Notes have been repaid in full; and
(viii) principal of the Series 3 Class A2 Notes until the
Series 3 Class A2 Notes have been repaid in full and
(1) on any Payment Date up to and including the
earlier of (a) the Payment Date in September 2011, (b)
the occurrence of a Trigger Event or (c) the
enforcement of the Funding Security and/or the Current
Issuer Security, amounts (including such part of any
termination payment) due to the Series 3 Class A2
Interest Rate Swap Provider under the Series 3 Class
A2 Interest Rate Swap (except for any termination
payment or any part thereof due and payable to that
Swap Provider as a result of an Interest Rate Swap
Provider Default by that Swap Provider, save to the
extent such termination payment may be satisfied by
any Swap Replacement Payment received by the Current
Issuer following a Downgrade Termination Event in
respect of the Series 3 Class A2 Interest Rate Swap
and applied in accordance with this order of priority
of payments) and from the amounts received from the
Series 3 Class A2 Interest Rate Swap Provider to pay
interest due or overdue and (ii) thereafter, to pay
interest due or overdue on the Series 3 Class A2 Notes
to the holders of the Series 3 Class A2 Notes;
(E) fifth, in no order of priority among them but in proportion to
the respective amounts due, to pay:
(i) amounts (including such part of any termination
payment) due to the Series 1 Class B Dollar Currency
Swap Provider under the Series 1 Class B Dollar
Currency Swap (except for any termination payment due
or any part thereof and payable to that Swap Provider
as a result of a Dollar Currency Swap Provider Default
by that Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 1 Class B Dollar Currency Swap and applied
in accordance with this order of priority of payments)
and from amounts received from the Series 1 Class B
Dollar Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 1 Class B
Notes until the Series 1 Class B Notes have been
repaid in full;
47
(ii) amounts (including such part of any termination
payment) due to the Series 2 Class B Euro Currency
Swap Provider under the Series 2 Class B Euro Currency
Swap (except for any termination payment or any part
thereof due and payable to that Swap Provider as a
result of a Euro Currency Swap Provider Default by
that Swap Provider save to the extent such termination
payment may be satisfied by any Swap Replacement
Payment received by the Current Issuer following a
Downgrade Termination Event in respect of the Series 2
Class B Euro Currency Swap and applied in accordance
with this order of priority of payments) and from
amounts received from the Series 2 Class B Euro
Currency Swap Provider to pay interest due or overdue
and to repay principal on the Series 2 Class B Notes
until the Series 2 Class B Notes have been repaid in
full; and
(iii) interest due or overdue and to repay principal of the
Series 3 Class B Notes until the Series 3 Class B
Notes have been repaid in full;
(F) sixth, in no order of priority among them but in proportion to
the respective amounts due, to pay:
(i) amounts (including such part of any termination
payment) due to the Series 1 Class M Dollar Currency
Swap Provider under the Series 1 Class M Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap Provider
as a result of a Dollar Currency Swap Provider Default
by that Swap Provider, save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 1 Class M Dollar Currency Swap and applied
in accordance with this order of priority of payment)
and from amounts received from the Series 1 Class M
Dollar Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 1 Class M
Notes until the Series 1 Class M Notes have been
repaid in full;
(ii) amounts (including such part of any termination
payment) due to the Series 2 Class M Euro Currency
Swap Provider under the Series 2 Class M Euro Currency
Swap (except for any termination payment or any part
thereof due and payable to that Swap Provider as a
result of a Euro Currency Swap Provider default by
that Swap Provider, save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 2 Class M Euro Currency Swap and applied in
accordance with this order of priority of payments)
and from amounts received from the Series 2 Class M
Euro Currency Swap Provider to pay interest due or
overdue and to repay principal of the Series 2 Class M
Notes until the Series 2 Class M Notes have been
repaid in full; and
(iii) interest due or overdue and to repay principal of the
Series 3 Class M Notes until the Series 3 Class M
Notes have been repaid in full;
48
(G) seventh, in no order of priority among them but in proportion
to the respective amounts due, to pay:
(i) amounts (including such part of any termination
payment) due to the Series 1 Class C Dollar Currency
Swap Provider under the Series 1 Class C Dollar
Currency Swap (except for any termination payment or
any part thereof due and payable to that Swap Provider
as a result of a Dollar Currency Swap Provider Default
by that Swap Provider save to the extent such
termination payment may be satisfied by any Swap
Replacement Payment received by the Current Issuer
following a Downgrade Termination Event in respect of
the Series 1 Class C Dollar Currency Swap and applied
in accordance with this order of priority of payments)
and from amounts received from the Series 1 Class C
Dollar Currency Swap Provider to pay interest due or
overdue and to repay principal on the Series 1 Class C
Notes until the Series 1 Class C Notes have been
repaid in full;
(ii) amounts (including such part of any termination
payment) due to the Series 2 Class C Euro Currency
Swap Provider under the Series 2 Class C Euro Currency
Swap (except for any termination payment or any part
thereof due and payable to that Swap Provider as a
result of a Euro Currency Swap Provider Default by
that Swap Provider save to the extent such termination
payment may be satisfied by any Swap Replacement
Payment received by the Current Issuer following a
Downgrade Termination Event in respect of the Series 2
Class C Euro Currency Swap and applied in accordance
with this order of priority of payments) and from
amounts received from the Series 2 Class C Euro
Currency Swap Provider to pay interest due or overdue
and to repay principal on the Series 2 Class C Notes
until the Series 2 Class C Notes have been repaid in
full; and
(iii) to pay interest due or overdue and to repay principal
on the Series 3 Class C Notes until the Series 3 Class
C Notes have been repaid in full;
(H) eighth, on the Payment Date falling in December of each year,
to pay to the Current Issuer Account Bank an amount equal to
the amount of any debit balance in any Current Issuer
Transaction Account as permitted by the Current Issuer Account
Bank and outstanding as at such Payment Date; and
(I) ninth, in no order of priority among them but in proportion to
the respective amounts due, to pay any termination payment to:
(i) the Basis Rate Swap Provider following a Basis Rate
Swap Provider Default by the Basis Rate Swap Provider;
(ii) the Interest Rate Swap Provider following an Interest
Rate Swap Provider Default by the Interest Rate Swap
Provider;
(iii) the Dollar Currency Swap Provider following a Dollar
Currency Swap Provider Default by the Dollar Currency
Swap Provider;
49
(iv) the Euro Currency Swap Provider following a Euro
Currency Swap Provider Default by the Euro Currency
Swap Provider; and
(J) last, to pay any amount remaining following the application of
principal and revenue set forth in paragraphs (A) through (I)
above, to the Current Issuer.
Following enforcement of the Current Issuer Security, if, on any
Payment Date, an amount equal to the cash benefit relating to any Tax
Credit obtained by the Current Issuer is required to be paid to any
Current Issuer Swap Provider (in accordance with Part 5(o) of the
Schedule to the relevant Current Issuer Swap Agreement), then the Note
Trustee shall make such payment on such Payment Date out of amounts
received or recovered in priority to the payments and provisions to be
made on such Payment Date in accordance with the Current Issuer
Post-Enforcement Priority of Payments. The amount of any such cash
benefit paid to the relevant Current Issuer Swap Provider in
accordance with this paragraph shall, to avoid double counting, be
deducted from the amount to be paid to that Current Issuer Swap
Provider under the relevant Current Issuer Swap Agreement in
accordance with the Current Issuer Post-Enforcement Priority of
Payments on the relevant Payment Date.
50
SCHEDULE 3
FORM OF NOTICE OF ASSIGNMENT
To: [Addressee(s)]
Granite Mortgages 04-3 plc - Assignment of rights under Current Issuer
Transaction Documents
[o]
Dear Sirs,
Terms and expressions used in this letter are as defined in a deed of charge
(the "Current Issuer Deed of Charge") between Granite Mortgages 04-3 plc (the
"Current Issuer"), The Bank of New York (the "Note Trustee") and others dated
[o].
We hereby give notice to each addressee of this letter that by assignment(s)
under or pursuant to the Current Issuer Deed of Charge, the Current Issuer has
assigned absolutely, by way of security for the payment and performance of
certain obligations of the Current Issuer described in the Current Issuer Deed
of Charge (the "Current Issuer Secured Obligations"), to the Note Trustee all
its right, title, benefit and interest under the [Agreement(s)] (the "Current
Issuer Transaction Documents") [including its right, title interest and
benefit in relation to [describe property] and including, without limitation,
all rights to receive payment of any amounts which may become payable to the
Current Issuer thereunder, all payments received by the Current Issuer
thereunder, all rights to serve notices and/or make demands thereunder and/or
to take such steps as are required to cause payments to become due and payable
thereunder and all rights of action in respect of any breach thereof and all
rights to receive damages or obtain relief in respect thereof and the proceeds
of any of the foregoing, (hereinafter called "Relevant Current Issuer
Property").
In relation to any of the Relevant Current Issuer Property which may be
situated in Jersey at any time, we hereby give notice for the purpose of the
Security Interests (Jersey) Law 1983 to each addressee of this letter that
with the intention of creating a security interest in accordance with such law
in such property in favour of the Note Trustee for the payment and performance
of the Current Issuer Secured Obligations, the Current Issuer has assigned all
of its rights, title, benefit and interest, present and future, in, to and
under the Relevant Current Issuer Property to the Note Trustee.
By signing the enclosed copy of this notice you acknowledge and consent to the
assignments and agree that:
(a) from the date of this notice you are obliged to and you will
pay all moneys which are or may become payable to the Current
Issuer under the aforesaid agreements to or to the order of
the Note Trustee; and
(b) you have not, at the date of this notice, received notice that
any third party has or will have any right of interest
whatsoever in the Relevant Current Issuer Property.
51
Notwithstanding the assignments made by the Current Issuer and referred to in
this notice, the Note Trustee hereby confirms and you further acknowledge
that:
(a) you may continue to make all payments becoming due to the
Current Issuer in respect of the Relevant Current Issuer
Property in the manner envisaged by the relevant Current
Issuer Transaction Document(s); and
(b) the Current Issuer shall be entitled to exercise its rights,
powers and discretions and perform its obligations in relation
to the Relevant Current Issuer Property and under the Current
Issuer Transaction Documents in accordance with the provisions
of the Current Issuer Transaction Documents,
but only until such time as you receive notice from the Note Trustee to the
contrary or to the effect that the security created under the Current Issuer
Deed of Charge has become enforceable, in which event from receipt of such
notice you agree that you will pay all monies becoming due and payable to the
Current Issuer in respect of the Relevant Current Issuer Property in
accordance with any instructions received from the Note Trustee.
This letter is governed by, and shall be construed in accordance with, English
law, except that to the extent of any Relevant Current Issuer Property which
may be situated in Jersey at any time, it is governed by and shall be
construed in accordance with the laws of Jersey.
Please acknowledge receipt of this notice by executing and returning the copy
of this letter attached hereto.
Yours faithfully,
EXECUTED for and on behalf of )
GRANITE MORTGAGES 04-3 PLC )
by: )
Authorised Signatory
Name:
Title:
52
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by: )
Authorised Signatory
Name:
Title:
We acknowledge receipt of the above notice and the terms of the assignment
created by you in respect of the Relevant Current Issuer Property.
In respect of the [Agreement]:
For and on behalf of )
[Party to Current Issuer Transaction Document] )
by: )
Authorised Signatory
Name:
Title:
53