EXHIBIT 4.1.2
Dated [22] September 2004
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GRANITE FINANCE FUNDING LIMITED
as Funding
GRANITE MORTGAGES 04-3 PLC
as Current Issuer
THE BANK OF NEW YORK
as Security Trustee
- and -
CITIBANK, N.A.
as Agent Bank
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ISSUER INTERCOMPANY LOAN CONFIRMATION
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SIDLEY AUSTIN BROWN & WOOD
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
Table of Contents
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Page
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1. Interpretation....................................................................1
2. Intercompany Loan Terms and Conditions............................................2
3. The Current Issuer Intercompany Loan..............................................2
4. Interest..........................................................................2
5. Repayment.........................................................................3
6. Certain Fees, etc.................................................................4
7. Additional Covenants..............................................................5
8. Declaration of Trust..............................................................5
9. Addresses.........................................................................5
SCHEDULE 1 CONDITIONS PRECEDENT IN RESPECT OF DRAWDOWN...................................8
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THIS AGREEMENT is dated [22] September 2004 between:
(1) GRANITE FINANCE FUNDING LIMITED (registered number 79308), a private
limited company incorporated under the laws of Jersey, but acting out of
its branch office established in England (registered overseas company
number FC022999 and branch number BR005916) at 69 Park Lane, Croydon CR9
1TQ as Funding;
(2) GRANITE MORTGAGES 04-3 PLC (registered in England and Wales No.
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;
(3) THE BANK OF NEW YORK, whose offices are at One Canada Square, 48th
Floor, London E14 5AL in its capacity as Security Trustee; and
(4) CITIBANK, N.A., acting through its offices at 5 Carmelite Street, London
EC4Y 0PA in its capacity as Agent Bank.
IT IS AGREED as follows:
1. Interpretation
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing in Appendix 1 to) the Master Definitions Schedule Ninth
Amendment Deed made on [22] September 2004 between, among others,
the Seller, Funding and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley 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 as above shall prevail to
the extent that it conflicts with the Master Definitions Schedule.
1.2 Specific terms: Unless the context otherwise requires, references in the
Intercompany Loan Terms and Conditions to:
"Closing Date" shall mean [22] September, 2004;
"Intercompany Loan" shall mean the Current Issuer Intercompany Loan;
"Intercompany Loan Agreement" shall mean the Current Issuer Intercompany
Loan Agreement;
"Intercompany Loan Confirmation" shall mean this Current Issuer
Intercompany Loan Confirmation;
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"Issuer" shall mean the Current Issuer;
"Issuer Transaction Accounts" shall mean the Current Issuer Transaction
Accounts; and
"Notes" shall mean the Current Issuer Notes.
2. Intercompany Loan Terms and Conditions
Each of the parties to this Agreement agrees that the Intercompany Loan
Terms and Conditions signed by Funding, the Security Trustee and the
Agent Bank for the purposes of identification on 26 March 2001 (as the
same has been and may be amended, varied, novated or supplemented from
time to time by the parties thereto) and the provisions set out therein
shall form part of this Agreement and shall be binding on the parties to
this Agreement as if they had been expressly set out herein. References
in this Agreement to "this Agreement" shall be construed accordingly.
3. The Current Issuer Intercompany Loan
3.1 Grant of Current Issuer Intercompany Loan: On and subject to the terms
of this Agreement, the Current Issuer hereby grants an Intercompany Loan
to Funding as follows:
(a) the maximum amount available for utilisation under that
Intercompany Loan shall be (GBP)[o]; and
(b) for all purposes the Outstanding Principal Amount of the
Intercompany Loan and principal amount outstanding and payable
and/or repayable in respect of that Intercompany Loan shall be:
(i) the total amount utilised in respect of that Intercompany
Loan multiplied by 100%, less
(ii) the aggregate principal amounts repaid in respect of the
Intercompany Loan in accordance with the Intercompany Loan
Agreement.
3.2 Conditions Precedent: Save as the Current Issuer may otherwise agree,
the Current Issuer Intercompany Loan will not be available for
utilisation unless the Current Issuer has confirmed to Funding (with a
copy of such confirmation to the Security Trustee) that it or its
advisers have received all the information and documents listed in
Schedule 1 in form and substance satisfactory to the Current Issuer.
4. Interest
4.1 Payment subject to terms of the Current Issuer Cash Management
Agreement: The terms and conditions of this Clause 4 are to be read in
conjunction with the provisions of Part 3 of Schedule 2 to the Current
Issuer Cash Management Agreement, as the same may be amended or varied
from time to time in accordance with the provisions thereof.
4.2 Payment of Interest: Subject to Clause 4 of the Intercompany Loan Terms
and Conditions, on each Payment Date Funding will pay to the Current
Issuer for same
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day value to the Current Issuer Sterling Account an amount of interest
equal to the amount of interest required by the Current Issuer on such
Payment Date (or such other date on which an amount of interest is
payable by the Current Issuer) to fund (by payment to any Swap Provider
or otherwise) the amount payable by the Current Issuer on such Payment
Date (or such other date on which an amount of interest is payable by
the Current Issuer) on the Current Issuer Notes and certain other
amounts (including an amount equal to the Current Issuer's retained
profit) as specified in and in accordance with the Current Issuer
Priority of Payments as calculated by the Current Issuer Cash Manager on
the Distribution Date that immediately precedes such Payment Date and
communicated by the Current Issuer Cash Manager to the Agent Bank by the
close of business on such Distribution Date. For the avoidance of doubt,
amounts paid by Funding to the Current Issuer pursuant to this Clause
4.2 shall constitute payment of interest on the Current Issuer
Intercompany Loan.
4.3 Interest Periods: The first Interest Period shall commence on (and
include) the Closing Date and end on (but exclude) the Payment Date
falling in [December 2004]. Each subsequent Interest Period shall
commence on (and include) a Payment Date and end on (but exclude) the
following Payment Date.
5. Repayment
5.1 Payment subject to terms of the Current Issuer Cash Management
Agreement: The terms and conditions of this Clause 5 are to be read in
conjunction with the provisions of Part 4 of Schedule 2 to the Current
Issuer Cash Management Agreement, as the same may be amended or varied
from time to time in accordance with the provisions thereof.
5.2 Repayment: Subject to Clause 4 of the Intercompany Loan Terms and
Conditions, on each Payment Date Funding will repay to the Current
Issuer for same day value to the Current Issuer Sterling Account an
amount of principal equal to the amount of principal required by the
Current Issuer on such Payment Date (or such other date on which an
amount of principal is payable by the Current Issuer) to fund (by
payment to any Swap Provider or otherwise) the amount payable by the
Current Issuer on such Payment Date (or such other date on which an
amount of principal is payable by the Current Issuer on the Current
Issuer Notes) on the Current Issuer Notes, as determined by the Current
Issuer Cash Manager under the terms of the Current Issuer Cash
Management Agreement on the Distribution Date that immediately precedes
such Payment Date and communicated by the Current Issuer Cash Manager to
the Agent Bank by the close of business on such Distribution Date.
5.3 Acknowledgement of New Intercompany Loans: The Current Issuer hereby
acknowledges and agrees that Funding has entered into Previous Issuer
Intercompany Loan Agreements with Previous Issuers and that from time to
time Funding may enter into other New Intercompany Loans with New
Issuers and that the obligation of Funding to repay this Current Issuer
Intercompany Loan will rank pari passu with the obligations of Funding
to repay the Previous Issuer Intercompany Loans and any New Intercompany
Loans, other than in respect of the priority made in the allocation of
principal receipts to an Issuer which has issued Money Market Notes.
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6. Certain Fees, etc.
6.1 Fee for provision of Current Issuer Intercompany Loan: In addition to
the interest and principal payments to be made by Funding under Clauses
4 and 5, respectively, on each Payment Date (or, in respect of the
payment to be made as set forth in (a) below, on the Drawdown Date) or
on any other date on which the Current Issuer notifies Funding, Funding
shall pay to the Current Issuer for same day value to the relevant
Current Issuer Transaction Account a fee for the provision of the
Current Issuer Intercompany Loan (except that in the case of payments
due under paragraphs (c), (e), (f) and (j) below, such payments shall be
paid when due). Such fee shall be an amount or amounts in the aggregate
equal to the following:
(a) the amount payable on the Drawdown Date as previously communicated
to Funding by the Current Issuer;
(b) the fees, costs, charges, liabilities and expenses and any other
amounts due and payable to the Note Trustee pursuant to the
Current Issuer Trust Deed or any other Current Issuer Transaction
Document, together with interest thereon as provided therein;
(c) the reasonable fees and expenses of any legal advisers,
accountants and auditors appointed by the Current Issuer and
properly incurred in their performance of their functions under
the Current Issuer Transaction Documents which have fallen due;
(d) the fees, costs and expenses due and payable to the Paying Agents
and the Agent Bank pursuant to the Current Issuer Paying Agent and
Agent Bank Agreement and the fees, costs and expenses due and
payable to the Transfer Agent and the Registrar;
(e) any amounts due and payable by the Current Issuer to the Inland
Revenue in respect of the Current Issuer's liability to United
Kingdom corporation tax (insofar as payment is not satisfied by
the surrender of group relief or out of the profits, income or
gains of the Current Issuer and subject to the terms of the
Current Issuer Deed of Charge) or any other Taxes payable by the
Current Issuer;
(f) the fees, costs, charges, liabilities and expenses due and payable
to the Current Issuer Account Bank pursuant to the Current Issuer
Bank Account Agreement (if any);
(g) the fees, costs, charges, liabilities and expenses due and payable
to the Current Issuer Cash Manager pursuant to the Current Issuer
Cash Management Agreement;
(h) any termination payment due and payable by the Current Issuer to a
Current Issuer Swap Provider pursuant to a Current Issuer Swap
Agreement;
(i) the fees, costs, charges, liabilities and expenses due and payable
to the Current Issuer Corporate Services Provider pursuant to the
Current Issuer Corporate Services Agreement; and
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(j) any other amounts due or overdue (including amounts due or overdue
in respect of stamp duty and issuer, registration and documentary
taxes or other taxes of a similar nature) by the Current Issuer to
third parties including the Rating Agencies and the amounts paid
by the Current Issuer under the Current Issuer Subscription
Agreement and the Current Issuer Underwriting Agreement
(excluding, for these purposes, the Noteholders) other than
amounts specified in paragraphs (a) to (i) above,
together with, (i) in respect of taxable supplies made to the Current
Issuer, any amount in respect of any VAT or similar tax payable in
respect thereof against production of a valid tax invoice; and (ii) in
respect of taxable supplies made to a person other than the Current
Issuer, any amount in respect of any Irrecoverable VAT or similar tax
payable in respect thereof (against production of a copy of the relevant
tax invoice), and to be applied subject to and in accordance with the
provisions of the Current Issuer Pre-Enforcement Revenue Priority of
Payments in the Current Issuer Cash Management Agreement or such other
Current Issuer Priority of Payments as may apply on that date.
6.2 Set-off: Funding and each of the other parties to this Agreement agree
that the Current Issuer shall be entitled to set-off those amounts due
and payable by Funding pursuant to this Clause 6 on the Closing Date
against the amount to be advanced by the Current Issuer to Funding under
the Current Issuer Intercompany Loan on the Closing Date.
7. Additional Covenants
Funding undertakes to establish the Current Issuer Liquidity Reserve
Fund, and an appropriate ledger therefor, on behalf of the Current
Issuer should the long-term, unsecured, unsubordinated and unguaranteed
debt obligations of the Seller cease to be rated at least A3 by Moody's
or A- by Fitch (unless Moody's or Fitch, as applicable, confirms the
then current ratings of the Current Issuer Notes will not be adversely
affected by such ratings downgrade). Any such Current Issuer Liquidity
Reserve Fund and such Current Issuer Liquidity Reserve Ledger shall be
established and maintained in accordance with the provisions of the Cash
Management Agreement.
8. Declaration of Trust
The Current Issuer declares the Security Trustee, and the Security
Trustee hereby declares itself, trustee of all the covenants,
undertakings, rights, powers, authorities and discretions in, under or
in connection with this Agreement for the Current Issuer Secured
Creditors in respect of the Current Issuer Secured Obligations owed to
each of them respectively upon and subject to the terms and conditions
of the Current Issuer Deed of Charge.
9. Addresses
The addresses referred to in Clause 18.4 (Notices) of the Intercompany
Loan Terms and Conditions are as follows:
The Security Trustee:
For the attention of: Corporate Trust (Global Structured Finance)
Address: The Bank of New York
48th Floor, One Canada Square
London E14 5AL
Facsimile: +44 207 964 6061 / +44 207 964 6399
The Current Issuer:
For the attention of: The Company Secretary
Address: Granite Mortgages 04-3 plc
Fifth Floor
100 Wood Street
London EC2V 7EX
Telephone: +44 207 606 5451
Facsimile: +44 207 606 0643
Funding:
For the attention of: The Company Secretary
Address: Granite Finance Funding Limited
69 Park Lane
Croydon CR9 1TQ
Telephone: +44 20 8409 8888
Facsimile: +44 20 8409 8911
Rating Agencies:
Moody's: Moody's Investors Services Limited
2 Minster Court, 1st Floor
Mincing Lane
London EC3R 7XB
For the attention of: Head of Monitoring Group, Structured Finance
Telephone: +44 207 772 5434
Facsimile: +44 207 772 5400
S&P: Standard and Poor's
20 Cannon Square
Canary Wharf
London E14 5LH
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For the attention of: Andre Vollmann
Telephone: +44 20 7176 3855
Facsimile: +44 20 7176 3598
Fitch: Fitch Ratings Ltd.
Eldon House
2 Eldon Street
London EC2M 7UA
For the attention of: European Structured Finance Surveillance
Telephone: +44 207 417 6271
Facsimile: +44 207 417 6262
IN WITNESS WHEREOF the parties have caused this Agreement to be duly executed
on the day and year appearing on page 1.
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SCHEDULE 1
CONDITIONS PRECEDENT IN RESPECT OF DRAWDOWN
1. Authorisations
(a) A copy of the memorandum and articles of association and
certificate of incorporation of Funding.
(b) A copy of a resolution of the board of directors of Funding
authorising the entry into, and the execution and performance of,
each of the Current Issuer Transaction Documents to which Funding
is a party and authorising specified persons to execute those on
its behalf.
(c) A certificate of a director of Funding certifying:
(i) that each document delivered under this paragraph 1 of
Schedule 1 is correct, complete and in full force and effect
as at a date no later than the date of the Current Issuer
Intercompany Loan Confirmation and, if such certificate is
dated other than on the Drawdown date, undertaking to notify
the Current Issuer (with a copy of such certification to the
Security Trustee) if that position should change prior to
the Drawdown Date; and
(ii) as to the identity and specimen signatures of the directors
and signatories of Funding.
2. Security
The Current Issuer Deed of Accession duly executed by the parties
thereto.
3. Legal opinion
Legal opinions of:
(a) Sidley Austin Brown & Wood, English legal advisers to the Seller,
the Current Issuer and Funding, addressed to the Security Trustee;
(b) Sidley Austin Brown & Wood LLP, U.S. legal advisers to the Seller,
the Current Issuer and Funding, addressed to the Security Trustee;
and
(c) Tods Murray LLP, Scottish legal advisers to the Seller, the
Current Issuer and Funding, addressed to the Security Trustee.
4. Transaction Documents
Duly executed copies of:
(a) the Current Issuer Deed of Charge;
(b) the Current Issuer Trust Deed;
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(c) the Cash Management Agreement;
(d) the Global Note Certificates;
(e) the Current Issuer Corporate Services Agreement;
(f) the Current Issuer Currency Swap Agreements;
(g) the Current Issuer Basis Rate Swap Agreement;
(h) the Current Issuer Interest Rate Swap Agreement;
(i) the Bank Account Agreement;
(j) the Collection Bank Agreement;
(k) the Master Definitions Schedule and the Current Issuer Master
Definitions Schedule;
(l) the Current Issuer Paying Agent and Agent Bank Agreement;
(m) the Current Issuer Start-up Loan Agreement;
(n) the Mortgage Sale Agreement;
(o) the Mortgages Trust Deed;
(p) the Administration Agreement;
(q) the Mortgages Trustee Guaranteed Investment Contract;
(r) the Funding Guaranteed Investment Contract;
(s) the Funding (Current Issuer) Guaranteed Investment Contract;
(t) the Current Issuer Post-Enforcement Call Option Agreement;
(u) the Current Issuer Subscription Agreement;
(v) the Current Issuer Underwriting Agreement;
(w) the Seller Power of Attorney;
(x) the Funding Deed of Charge;
(y) the Current Issuer Cash Management Agreement;
(z) the Funding (Current Issuer) Bank Account Agreement;
(aa) the Current Issuer Bank Account Agreement;
(bb) the Second Priority Funding Deed of Charge;
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(cc) the Stand-by Bank Account Agreement;
(dd) the Stand-by Mortgages Trustee Guaranteed Investment Contract; and
(ee) the Stand-by Funding Guaranteed Investment Contract.
5. Bond Documentation
(a) Confirmation that the Current Issuer Notes have been issued and
the subscription proceeds received by the Current Issuer; and
(b) Copy of the Prospectus and the Offering Circular.
6. Miscellaneous
A solvency certificate from Funding signed by two directors of Funding
in or substantially in the form set out in Schedule 2 (Solvency
Certificate) to the Intercompany Loan Terms and Conditions.
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EXECUTION PAGE
Funding
Executed by
granite finance funding limited
as follows: By
Signed for and on its behalf by one of its --------------------------------------
duly authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name
--------------------------------------
The Current Issuer
Executed by
granite mortgages 04-3 plc
as follows: By
Signed for and on its behalf by one of its --------------------------------------
duly authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name
--------------------------------------
The Security Trustee
Executed by
Bank of new york
as follows: By
Signed for and on its behalf by one of its --------------------------------------
duly authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name
--------------------------------------
The Agent Bank
Executed by
citibank, n.a.
as follows: By
Signed for and on its behalf by one of its --------------------------------------
duly authorised attorneys/signatories Duly Authorised Attorney/Signatory
Name
--------------------------------------
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