Exhibit 4.1.1
AMENDED AND RESTATED
MASTER INTERCOMPANY LOAN AGREEMENT
[o] 2008
HOLMES FUNDING LIMITED
as Funding
HOLMES MASTER ISSUER PLC
as Master Issuer
THE BANK OF NEW YORK ACTING THROUGH ITS LONDON BRANCH
as Security Trustee
and
THE BANK OF NEW YORK ACTING THROUGH ITS LONDON BRANCH
as Agent Bank
[GRAPHIC OMITTED]
ALLEN & OVERY LLP
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation..........................................1
2. The Facility............................................................1
3. Conditions Precedent....................................................2
4. Purpose.................................................................3
5. Limited Recourse........................................................3
6. Advance of Term Advances................................................4
7. Interest................................................................5
8. Repayment...............................................................8
9. Prepayment.............................................................10
10. Taxes..................................................................10
11. Illegality.............................................................11
12. Mitigation.............................................................11
13. Representations and Warranties of Funding..............................11
14. Covenants..............................................................13
15. Default................................................................15
16. Default Interest and Indemnity.........................................17
17. Payments...............................................................18
18. Entrenched Provisions..................................................19
19. Further Provisions.....................................................19
20. Redenomination.........................................................20
21. Notices................................................................21
22. Governing Law and Submission to Jurisdiction...........................21
SCHEDULE
1. Conditions Precedent...................................................22
2. Form of Term Advance Notice............................................24
3. Form of Term Advance Supplement........................................25
4. Solvency Certificate...................................................31
Execution Page................................................................33
THIS AMENDED AND RESTATED MASTER INTERCOMPANY LOAN AGREEMENT (this AGREEMENT) is
dated [o] 2008
BETWEEN:
(1) HOLMES FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (FUNDING);
(2) HOLMES MASTER ISSUER PLC a company incorporated in England and Wales with
limited liability (registered number 5953811), and having its registered
office at Abbey National House, 2 Triton Square, Regent's Place, London
NW1 3AN (the MASTER ISSUER);
(3) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH (formerly known as
JPMorgan Chase Bank, N.A., London Branch) (the SECURITY TRUSTEE, which
expression where the context permits shall include such person and all
other persons for the time being acting as the trustee or trustees under
the Funding Deed of Charge) whose principal office is at One Canada
Square, London E14 5AL; and
(4) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH acting through its
offices at 40th Floor, One Canada Square, London E14 5AL (acting in its
capacity as the AGENT BANK appointed by the Master Issuer under the
Master Issuer Paying Agent and Agent Bank Agreement).
WHEREAS:
(A) From time to time, the Master Issuer will issue Master Issuer Notes
pursuant to the Programme.
(B) The Master Issuer has agreed that it will lend the proceeds (or, as
applicable, the sterling equivalent thereof) of any issue of Master
Issuer Notes by it to Funding.
(C) This Agreement sets out the terms and conditions with respect to lending
by the Master Issuer of the proceeds of the issue of Master Issuer Notes
to Funding.
(D) The parties to this Agreement have agreed to amend and restate the terms
of this Agreement as set out herein.
1. DEFINITIONS AND INTERPRETATION
The Fourth Amended and Restated Master Definitions and Construction
Schedule signed for the purposes of identification by Allen & Overy LLP
and Slaughter and May on [o] 2008 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) is
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Fourth Amended and Restated
Master Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of that
Fourth Amended and Restated Master Definitions and Construction Schedule.
2. THE FACILITY
Subject to the terms of this Agreement, the Master Issuer agrees to make
available to Funding a facility (the MASTER INTERCOMPANY LOAN FACILITY).
On the London Business Day prior to each
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Closing Date, the Master Issuer shall offer Term Advances to Funding
under the Master Intercompany Loan Facility that correspond to each
Series and Class of Master Issuer Notes to be issued by the Master Issuer
on the relevant Closing Date. Each Term Advance shall be denominated in
Sterling. Subject to the terms of this Agreement, on each Closing Date,
Funding shall accept the offer.
3. CONDITIONS PRECEDENT
Save as the Master Issuer, Funding and the Security Trustee may otherwise
agree, each Term Advance will not be available for utilisation on the
relevant Closing Date unless:
(a) the related Series and Class of Master Issuer Notes has been
issued by the Master Issuer on the relevant Closing Date and the
subscription proceeds thereof have been received by or on behalf
of the Master Issuer;
(b) the Security Trustee has confirmed to Funding that it or its
advisers have received (at any time on or prior to such Closing
Date) all the information and documents listed in Schedule 1
hereto (Conditions Precedent) in form and substance satisfactory
to the Security Trustee;
(c) Funding and the Master Issuer have signed a Term Advance
Supplement in respect of that Term Advance (substantially in the
form set out in Schedule 3 hereto (Form of Term Advance
Supplement));
(d) Funding has confirmed in the applicable Term Advance Supplement
that:
(i) no Master Intercompany Loan Event of Default has occurred
and is continuing unremedied (if capable of remedy) or
unwaived or would result from the making of such Term
Advance; and
(ii) the representations set out in CLAUSE 13 are true on and as
of the relevant Closing Date by reference to the facts and
circumstances then existing;
(e) Funding has delivered a solvency certificate substantially in the
form set out in Schedule 4 hereto;
(f) the Master Issuer has confirmed in the applicable Term Advance
Supplement that no Note Event of Default has occurred and is
continuing unremedied (if capable of remedy) or unwaived or would
result from the making of such Term Advance;
(g) each of the Rating Agencies has confirmed in writing to the
Security Trustee that there will not, as a result of the Master
Issuer issuing any Master Issuer Notes on the Closing Date, be any
adverse effect on the then current ratings by the Rating Agencies
of any then outstanding Master Issuer Notes of the Master Issuer;
(h) one or more Deeds of Accession relating to the Funding Deed of
Charge have been executed by any additional Funding Secured
Creditors and the parties to the Funding Deed of Charge; and
(i) all other conditions precedent as may be specified in the
applicable Term Advance Supplement have been satisfied.
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4. PURPOSE
4.1 PURPOSE AND APPLICATION OF A TERM ADVANCE
The proceeds of each Term Advance may only be used by Funding either:
(a) to pay the Seller the Purchase Price for the sale of any New
Portfolio to the Mortgages Trustee on the relevant Closing Date
(which payment shall increase the Funding Share of the Trust
Property in accordance with the terms of the Mortgages Trust
Deed);
(b) to acquire part of the Seller Share of the Trust Property (such
payment to be made to the Seller which shall increase the Funding
Share of the Trust Property in accordance with the terms of the
Mortgages Trust Deed);
(c) to refinance the existing debt of Funding, including any existing
Term Advance (in whole or in part); and/or
(d) to fund or partly fund or replenish the Funding Reserve Fund.
4.2 APPLICATION OF AMOUNTS
Without prejudice to the obligations of Funding under this CLAUSE 4,
neither the Security Trustee nor any of the Funding Secured Creditors
shall be obliged to concern themselves as to the application of amounts
raised by Funding under a Term Advance.
5. LIMITED RECOURSE
5.1 RECOURSE LIMITED TO AVAILABLE FUNDS
Subject to CLAUSE 5.2 but notwithstanding the terms of any other
provision in this Agreement or any other Transaction Document, each of
the Master Issuer and the Security Trustee agree that the liability of
Funding in respect of its obligations to repay principal and pay interest
or any other amounts due under this Agreement or for any breach of any
representation, warranty, covenant or undertaking of Funding under this
Agreement shall be limited to amounts standing to the credit of the
Funding GIC Account and the Funding Transaction Account from time to time
(including, for the avoidance of doubt, amounts received by Funding in
respect of the Funding Share of the Trust Property and from the Funding
Swap Provider except for any collateral transferred to it under the
Funding Swap) provided that the application of such amounts to the
discharge of Funding's obligations under this Agreement shall be subject
to the terms of the Funding Deed of Charge and the relevant Funding
Priority of Payments in all cases.
5.2 SHORTFALL ON FINAL REPAYMENT DATE
To the extent that on the Final Repayment Date of any Term Advance
advanced under this Agreement there is a shortfall between all amounts
(including interest and principal) payable on that Term Advance under
this Agreement and the amounts available therefor, that shortfall shall
not be due and payable to the Master Issuer until the time, if ever, when
Funding has enough money available to pay the shortfall on that Term
Advance after making any other payments due that rank higher in priority
to that Term Advance. Following enforcement of the Funding Security and
distribution of all enforcement proceeds in accordance with the Funding
Deed of Charge, all outstanding claims that the Master Issuer and the
Security Trustee may otherwise have against Funding will be extinguished.
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6. ADVANCE OF TERM ADVANCES
6.1 NOTICE TO FUNDING
Not later than 2:00 p.m. (London time) on the relevant Closing Date (or
such later time as may be agreed in writing by Funding, the Master Issuer
and the Security Trustee), Funding shall give to the Master Issuer
(copied to the Security Trustee) a Term Advance Notice (substantially in
the form set out in Schedule 1 hereto (Form of Term Advance Notice))
which shall request the drawing of a Term Advance and delivery of which
shall (subject to the terms of this Agreement and to the issue of the
relevant Series and Class of Master Issuer Notes by the Master Issuer)
oblige Funding to borrow the whole amount stated in the Term Advance
Notice on the relevant Closing Date upon the terms and subject to the
conditions contained in this Agreement and such Term Advance Notice will
set out, inter alia:
(a) the amount and currency or currencies of the proposed issue of
each Series and Class of Master Issuer Notes under the Programme;
(b) the Specified Currency Exchange Rate(s) at which the Master Issuer
will swap the proceeds of each Series and Class of Master Issuer
Notes that is not denominated in Sterling into Sterling; and
(c) the principal amount of each Term Advance available for drawing
under the Master Intercompany Loan Facility on such Closing Date.
6.2 TERM ADVANCES CORRESPOND TO SERIES AND CLASSES OF MASTER ISSUER NOTES
Each Term Advance shall be identified by reference to the relevant Series
and Class of Master Issuer Notes that is used to fund it, as set out in
the applicable Term Advance Supplement.
6.3 TERM ADVANCE SUPPLEMENT
The Term Advance Supplement to be signed on each Closing Date in
accordance with CLAUSE 3(C) shall record, amongst other things, the
amount of each Term Advance to be made on such Closing Date, which shall
correspond to the principal amount of such Term Advance that is available
for drawing which is notified to the Master Issuer in the applicable Term
Advance Notice.
6.4 SINGLE DRAWING OF THE TERM ADVANCE
On satisfaction of the conditions set out in CLAUSE 3, the Master Issuer
shall make the applicable Term Advances available to Funding on the
relevant Closing Date. The aggregate of the Term Advances to be made on
the relevant Closing Date will only be available for drawing in one
amount by Funding on the relevant Closing Date.
6.5 REDEMPTION/PAYMENT BASIS
Each Term Advance may be a Bullet Term Advance, a Scheduled Amortisation
Term Advance, a Pass-Through Term Advance or a combination of any of the
foregoing, depending upon the Redemption/Payment Basis shown in the
applicable Term Advance Supplement.
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7. INTEREST
7.1 TERM ADVANCE INTEREST PERIODS
(a) The first Term Advance Interest Period in respect of a Term
Advance will commence on (and include) the Interest Commencement
Date relating to that Term Advance and end on (but exclude) the
first Interest Payment Date falling thereafter. Each subsequent
Term Advance Interest Period shall commence on (and include) an
Interest Payment Date and end on (but exclude) the next following
Interest Payment Date.
(b) Whenever it is necessary to compute an amount of interest in
respect of a Term Advance for any period (including any Term
Advance Interest Period), such interest shall be calculated on the
basis of actual days elapsed in a 365 day year (or, in respect of
the calculation of an amount of interest in respect of a Term
Advance which corresponds to a Sterling Master Issuer Note issued
on or after [o] 2008, such interest shall be calculated on the
basis of the day count fraction specified in the relevant Final
Terms in respect of such Sterling Master Issuer Note).
7.2 DETERMINATION OF TERM ADVANCE INTEREST AMOUNT
In relation to any Term Advance, the rate of interest payable (the TERM
ADVANCE RATE OF INTEREST) and the relevant Sterling interest amount (each
a TERM ADVANCE INTEREST AMOUNT) in respect of such Term Advance shall be
determined on the basis of the provisions set out below:
(a) On the Interest Determination Date in relation to such Term
Advance, the Agent Bank will determine the Relevant Screen Rate in
respect of such Term Advance at or about 11.00 am London time. If
the Relevant Screen Rate is unavailable, the Agent Bank will
request the principal London office of each of the Reference Banks
to provide the Agent Bank with its offered quotation to leading
banks for three-month Sterling deposits of (pound)10,000,000 in
the London inter-bank market as at or about 11.00 am London time
on such Interest Determination Date.
(b) The Term Advance Rate of Interest for such Term Advance for the
Term Advance Interest Period relating to such Term Advance shall
be the aggregate of:
(i) the Relevant Margin in respect of such Term Advance; and
(ii) the Relevant Screen Rate in respect of such Term Advance
(or, in the case of the initial Interest Determination Date
for such Term Advance, the linear interpolation of the
Relevant Screen Rate) or, if the Relevant Screen Rate is
unavailable, the arithmetic mean (or, in the case of the
initial Interest Determination Date for such Term Advance,
the linear interpolation of the arithmetic mean) of such
offered quotations by the Reference Banks (rounded upwards,
if necessary, to five decimal places).
(c) If on any Interest Determination Date in relation to such Term
Advance, the Relevant Screen Rate in respect of such Term Advance
is unavailable and only two or three of the Reference Banks
provide offered quotations, the Term Advance Rate of Interest for
such Term Advance for the relevant Term Advance Interest Period
shall be determined in accordance with the provisions of
sub-paragraph (a) above on the basis of the offered quotations of
those Reference Banks providing such quotations.
(d) If, on any such Interest Determination Date, only one or none of
the Reference Banks provides the Agent Bank with such an offered
quotation, the Agent Bank shall forthwith
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consult with the Security Trustee and the Master Issuer for the
purposes of agreeing two banks (or, where one only of the
Reference Banks provided such a quotation, one additional bank) to
provide such a quotation or quotations to the Agent Bank (which
bank or banks are in the opinion of the Security Trustee suitable
for such purpose) and the Term Advance Rate of Interest for such
Term Advance for the Term Advance Interest Period in question
shall be determined, as aforesaid, on the basis of the offered
quotations of such banks as so agreed (or, as the case may be, the
offered quotations of such bank as so agreed and the relevant
Reference Bank).
(e) If no such bank or banks is or are so agreed or such bank or banks
as so agreed does or do not provide such a quotation or
quotations, then the Term Advance Rate of Interest for such Term
Advance for the relevant Interest Periods shall be the Term
Advance Rate of Interest in relation to such Term Advance in
effect for the immediately preceding Interest Period to which
sub-paragraph (a) above shall have applied but taking account of
any change in the Relevant Margin in relation to such Term
Advance.
(f) There will be no minimum or maximum Term Advance Rate of Interest
for such Term Advance.
(g) The Agent Bank shall as soon as practicable after 11:00 a.m.
(London time) on each Interest Determination Date, determine and
notify the Master Issuer, Funding, the Cash Manager and the
Security Trustee of: (i) the Term Advance Rate of Interest
applicable to such Term Advance for the relevant Interest Period
and (ii) the Term Advance Interest Amount payable in respect of
such Term Advance for the relevant Interest Period.
(h) The Term Advance Interest Amount for such Term Advance shall be
determined by applying the relevant Term Advance Rate of Interest
to the Outstanding Principal Balance of such Term Advance,
multiplying the sum by the day count fraction described in CLAUSE
7.1 and rounding the resultant figure to the nearest penny (half a
penny being rounded upwards).
(i) If the Agent Bank does not at any time for any reason determine
the Term Advance Rate of Interest and the Term Advance Interest
Amount for any Term Advance in accordance with paragraphs 7.2(a)
to (g) above, the Security Trustee shall (subject to it being
indemnified to its satisfaction) determine the Term Advance Rate
of Interest and Term Advance Interest Amount for each Term Advance
and any such determination shall be deemed to have been made by
the Agent Bank.
(j) All notifications, opinions, determinations, certificates,
calculations and decisions given, expressed, made or obtained for
the purposes of this CLAUSE 7, whether by the Agent Bank or the
Security Trustee, shall (in the absence of wilful default, bad
faith or manifest error) be binding on Funding, the Master Issuer,
the Cash Manager, the Agent Bank, the Security Trustee and (in
such absence as aforesaid) no liability to Funding shall attach to
the Master Issuer, the Agent Bank, the Security Trustee or the
Cash Manager in connection with the exercise or non-exercise by
them or any of them of their powers, duties and discretions
hereunder.
7.3 PAYMENT ON INTEREST PAYMENT DATES
Subject to CLAUSE 5.1, Funding shall pay interest in respect of each Term
Advance on the Interest Payment Dates specified in the applicable Term
Advance Supplement.
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7.4 DEFERRED INTEREST
Subject to CLAUSE 5.2, to the extent that there are insufficient funds
available to pay interest on a Term Advance on any Interest Payment Date,
the shortfall in the interest amount payable will not then fall due but
will instead be due on the following Interest Payment Date on which
sufficient funds are available to pay such interest, and pending such
payment, will accrue interest at the rate specified for such Term Advance
in the applicable Term Advance Supplement.
7.5 CERTAIN FEES
In addition to the interest and principal payments to be made by Funding
in respect of each Term Advance under this CLAUSE 7 and CLAUSE 8,
respectively, on each Interest Payment Date or on any other date on which
the Master Issuer notifies Funding, but subject to CLAUSE 5.1, Funding
shall pay to the Master Issuer for same day value to the Master Issuer
Transaction Account a fee for the provision of the Master Intercompany
Loan Facility (except that in the case of payments due under paragraphs
(a), (b), (d), (e) and (j) below, such payments shall be paid when due by
the Master Issuer). Such fee shall be an amount or amounts in the
aggregate equal to the following:
(a) the fees, costs, charges, liabilities and expenses and any other
amounts due and payable to the Note Trustee and the Master Issuer
Security Trustee pursuant to the Master Issuer Trust Deed, the
Master Issuer Deed of Charge or any other Transaction Document,
together with interest thereon as provided therein;
(b) the reasonable fees and expenses of any legal advisers,
accountants and auditors appointed by the Master Issuer and
properly incurred in their performance of their functions under
the Transaction Documents which have fallen due;
(c) the fees, costs and expenses due and payable to the Paying Agents,
the Agent Bank, the Transfer Agent and the Registrar pursuant to
the Master Issuer Paying Agent and Agent Bank Agreement;
(d) any amounts due and payable by the Master Issuer to HM Revenue and
Customs in respect of the Master Issuer's liability to United
Kingdom corporation tax (insofar as payment is not or will not be
capable of being satisfied by the surrender of group relief or out
of the profits, income or gains of the Master Issuer and subject
to the terms of the Master Issuer Deed of Charge) or any other
Taxes payable by the Master Issuer;
(e) the fees, costs, charges, liabilities and expenses due and payable
to the Master Issuer Account Bank pursuant to the Master Issuer
Bank Account Agreement (if any);
(f) the fees, costs, charges, liabilities and expenses due and payable
to the Master Issuer Cash Manager pursuant to the Master Issuer
Cash Management Agreement;
(g) the fees, costs, charges, liabilities and expenses due and payable
to the Master Issuer Corporate Services Provider pursuant to the
Master Issuer Corporate Services Agreement;
(h) any termination payment due and payable by the Master Issuer to a
Master Issuer Swap Provider pursuant to a Master Issuer Swap
Agreement;
(i) an amount equal to 0.01 per cent of the interest amounts paid by
Funding to the Master Issuer on the Term Advances on an Interest
Payment Date, provided that the amount payable by Funding to the
Master Issuer pursuant to this paragraph (i) together with the
amount payable by Funding to the Master Issuer pursuant to
paragraph (d) above, in respect of each accounting period of the
Master Issuer, shall in aggregate not exceed an amount equal to
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0.01% of the interest amounts paid by Funding to the Master Issuer
in respect of the Term Advances in that accounting period; and
(j) any other amounts due or overdue by the Master Issuer to third
parties including the Rating Agencies and the amounts paid by the
Master Issuer under the Programme Agreement, each Subscription
Agreement and each Initial Purchase 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 Master
Issuer, an amount in respect of any VAT or similar tax payable in respect
thereof against production of a valid tax invoice; and (ii) in respect of
taxable supplies made to a person other than the Master Issuer, any
amount in respect of any VAT or Irrecoverable VAT or similar tax (as the
case may be) payable in respect thereof as provided in the relevant
agreement (against production of a copy of the relevant tax invoice), and
to be applied subject to and in accordance with the provisions of the
Master Issuer Pre-Enforcement Revenue Priority of Payments in the Master
Issuer Cash Management Agreement. The parties acknowledge that the amount
payable by Funding to the Master Issuer pursuant to this CLAUSE 7.5 shall
be paid in accordance with the Funding Deed of Charge and the relevant
Funding Priority of Payments (which prior to enforcement of the Funding
Security shall be paragraph (a)(ii) of the Funding Pre-Enforcement
Revenue Priority of Payments in the case of the amount payable pursuant
to paragraphs (a) to (g) and (j) above and paragraph (s) of the Funding
Pre-Enforcement Revenue Priority of Payments in the case of the amount
payable pursuant to paragraphs (h) and (i) above) and (in each case)
subject to the provisions of CLAUSE 5.1 such that in the event of a
shortfall resulting in any such amount not being paid on an Interest
Payment Date then such amount shall not be paid until the next Interest
Payment Date (if any) on which Funding has sufficient amounts standing to
the credit of the Funding GIC Account and the Funding Transaction Account
to pay such amount in accordance with the Funding Deed of Charge and the
relevant Funding Priority of Payments.
7.6 SET-OFF
Funding and each of the other parties to this Agreement agree that the
Master Issuer shall be entitled to set-off those amounts due and payable
by Funding pursuant to CLAUSE 7.5 on the Closing Date for a Term Advance
against the amount to be advanced by the Master Issuer to Funding under
such Term Advance on such Closing Date.
8. REPAYMENT
8.1 REPAYMENT OF TERM ADVANCES
Subject to CLAUSE 5, on each Loan Payment Date, other than a Loan Payment
Date on which a Term Advance is to be repaid under CLAUSE 9, Funding
shall repay principal in respect of such Term Advance in an amount equal
to:
(a) prior to the earlier to occur of the Step-Up Date (if any) in
respect of such Term Advance and prior to the occurrence of a
Trigger Event, enforcement of the Funding Security or the service
on the Master Issuer of a Note Enforcement Notice, the lower of:
(i) the amount due to be paid on such Loan Payment Date as
specified for such Term Advance in the applicable Term
Advance Supplement; and
(ii) the amount which is available, under the terms of the
Funding Deed of Charge and the Cash Management Agreement to
repay principal in respect of such Term Advance as set out
in paragraph 1 of Part II of Schedule 3 of the Funding Deed
of Charge,
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provided that, in the case of any Pass-Through Term Advance, the
amount of principal to be repaid by Funding in respect of such
Term Advance on the applicable Loan Payment Date shall be
calculated in accordance with sub-paragraph (ii) above; or
(b) following the occurrence of a Non-Asset Trigger Event but prior to
the occurrence of an Asset Trigger Event, enforcement of the
Funding Security or the service on the Master Issuer of a Note
Enforcement Notice, the amount which is available under the terms
of the Funding Deed of Charge and the Cash Management Agreement to
repay principal in respect of such Term Advance in such
circumstances as set out in paragraph 5 of Part II of Schedule 3
of the Funding Deed of Charge; or
(c) following the occurrence of an Asset Trigger Event but prior to
enforcement of the Funding Security or the service on the Master
Issuer of a Note Enforcement Notice, the amount which is available
under the terms of the Funding Deed of Charge and the Cash
Management Agreement to repay principal in respect of such Term
Advance in such circumstances as set out in paragraph 6 of Part II
of Schedule 3 of the Funding Deed of Charge; or
(d) following enforcement of the Funding Security but prior to service
on the Master Issuer of a Note Enforcement Notice, the amount
which is available under the terms of the Funding Deed of Charge
and the Cash Management Agreement to repay principal in respect of
such Term Advance in such circumstances as set out in paragraph
7.1 of Part II of Schedule 3 of the Funding Deed of Charge; or
(e) following service on the Master Issuer of a Note Enforcement
Notice, the amount which is available under the terms of the
Funding Deed of Charge and the Cash Management Agreement to repay
principal in respect of such Term Advance in such circumstances as
set out in paragraph 7.2 of Part II of Schedule 3 of the Funding
Deed of Charge.
To the extent that there are insufficient funds available to Funding to
repay the amount due to be paid on such Loan Payment Date, Funding will
be required to repay the shortfall, to the extent that it receives funds
therefor (and subject to the terms of the Funding Deed of Charge and the
Cash Management Agreement) on subsequent Loan Payment Dates in respect of
such Term Advance.
8.2 TERM ADVANCE RATINGS
Unless otherwise specified for any Term Advance in the applicable Term
Advance Supplement, such Term Advance shall be repaid (as to both
interest and principal) in the priority according to the Term Advance
Rating of that Term Advance. The Term Advance Rating for a Term Advance
will be specified for such Term Advance in the applicable Term Advance
Supplement.
8.3 PAYMENT SUBJECT TO TERMS OF THE FUNDING DEED OF CHARGE
The terms and conditions of CLAUSE 7 and this CLAUSE 8 are to be read in
conjunction with the provisions of the Funding Deed of Charge, as the
same may be amended or varied from time to time in accordance with the
provisions thereof.
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9. PREPAYMENT
9.1 PREPAYMENT FOR TAXATION OR OTHER REASONS
If:
(a) Funding is required to withhold or deduct from any payment of
principal or interest in respect of any Term Advance any amount
for or on account of Tax; or
(b) the Master Issuer is required to withhold or deduct from any
payment of principal, interest or premium in respect of its Master
Issuer Notes any amount for or on account of Tax; or
(c) a Term Advance becomes illegal as described in CLAUSE 11,
then, without prejudice to the obligations of Funding under CLAUSE 11 and
subject to CLAUSE 12, Funding may prepay, on any Interest Payment Date,
having given not more than 60 days' and not less than 30 days' (or such
shorter period as may be required by any relevant law in the case of any
Term Advance which becomes illegal pursuant to CLAUSE 11) prior written
notice to the Master Issuer and the Note Trustee (or on or before the
latest date permitted by the relevant law in the case of CLAUSE 11) so
long as the relevant circumstances continue, the applicable Term Advances
without penalty or premium but subject to CLAUSE 16, provided that the
Master Issuer is able to repay the related Master Issuer Notes used to
fund such Term Advance on such Interest Payment Date from funds received
from repayment of such Term Advance.
9.2 PREPAYMENT AT OPTION OF MASTER ISSUER
The Master Issuer, at its option, may require Funding to prepay the
outstanding principal amount of a Term Advance (together with any accrued
interest) on any Interest Payment Date on which the Master Issuer has
decided to exercise its option, if any, to redeem in full the Master
Issuer Notes used to fund such Term Advance. The Master Issuer shall give
Funding not more than 60 days' and not less than 30 days' prior written
notice of the Master Issuer's decision to exercise its option to require
Funding to prepay the relevant Term Advance. Any prepayment by Funding
will be made without penalty or premium but will be subject to CLAUSE 16.
9.3 APPLICATION OF MONIES
The Master Issuer hereby agrees to apply any amounts received by way of
prepayment pursuant to CLAUSE 9.1 or CLAUSE 9.2 in making prepayments
under the relevant Master Issuer Notes.
10. TAXES
10.1 NO GROSS UP
All payments by Funding under this Agreement shall be made without any
deduction or withholding for or on account of, and free and clear of, any
Taxes, except to the extent that Funding is required by law to make
payment subject to such deduction or withholding.
10.2 TAX RECEIPTS
All Taxes required by law to be deducted or withheld by Funding from any
amounts paid or payable under this Agreement shall be paid by Funding
when due and Funding shall, within 30 days of the payment being made,
deliver to the Master Issuer evidence satisfactory to the Master Issuer
(including all relevant Tax receipts) that the payment has been duly
remitted to the appropriate authority.
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11. ILLEGALITY
If, at any time, it is unlawful for the Master Issuer to make, fund or
allow to remain outstanding a Term Advance made by it under this
Agreement, then the Master Issuer shall, promptly after becoming aware of
the same, deliver to Funding, the Security Trustee and the Rating
Agencies a certificate to that effect and if the Master Issuer so
requires, Funding shall promptly, to the extent necessary to cure such
illegality, prepay such Term Advance subject to and in accordance with
the provisions of CLAUSE 9.1.
12. MITIGATION
If circumstances arise in respect of the Master Issuer which would, or
would upon the giving of notice, result in:
(a) the prepayment of the Term Advances pursuant to CLAUSE 11; or
(b) a withholding or deduction from the amount to be paid by Funding
for or on account of Taxes pursuant to CLAUSE 10,
then, without in any way limiting, reducing or otherwise qualifying the
obligations of Funding under this Agreement, the Master Issuer shall:
(i) promptly upon becoming aware of the circumstances, notify the
Security Trustee, Funding and the Rating Agencies; and
(ii) upon written request from Funding, take such reasonable steps as
may be practical to mitigate the effects of those circumstances
including (without limitation) the assignment of the Master
Issuer's rights under this Agreement to, and assumption of all the
Master Issuer's obligations under this Agreement by, another
company satisfactory to the Security Trustee, which is willing to
participate in the Term Advances in its place and which is not
subject to (a) and/or (b) above,
provided that no such transfer or assignment and transfer of such rights
and obligations may be permitted unless the Rating Agencies confirm in
writing to Funding and the Security Trustee that there will be no
downgrading of the then current rating of the Master Issuer Notes issued
by the Master Issuer as a result and Funding indemnifies the Master
Issuer for any reasonable costs and expenses properly incurred as a
result of such transfer or assignment.
13. REPRESENTATIONS AND WARRANTIES OF FUNDING
13.1 REPRESENTATIONS AND WARRANTIES
Funding makes the representations and warranties set out in this CLAUSE
13 to the Master Issuer and the Security Trustee (as trustee for each of
the Funding Secured Creditors).
13.2 STATUS
(a) It is a limited liability company duly incorporated, validly
existing and registered under the laws of the jurisdiction in
which it is incorporated, capable of being sued in its own right
and not subject to any immunity from any proceedings; and
(b) it has the power to own its property and assets and to carry on
its business as it is being conducted.
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13.3 POWERS AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary corporate and other action to authorise the execution, delivery
and performance by it of, each of the Transaction Documents to which it
is a party.
13.4 LEGAL VALIDITY
Each Transaction Document to which it is or will be a party constitutes
or when executed in accordance with its terms will constitute, a legal,
valid and binding obligation of Funding.
13.5 NON-CONFLICT
The execution by it of each of the Transaction Documents to which it is a
party and the exercise by it of its rights and the performance of its
obligations under such Transaction Documents including, without
limitation, borrowing pursuant to the terms of this Agreement or granting
any security contemplated by the Transaction Documents will not:
(a) result in the existence or imposition of, nor oblige it to create,
any Security Interest in favour of any person (other than the
Funding Secured Creditors or as otherwise contemplated in the
Transaction Documents) over all or any of its present or future
revenues or assets;
(b) conflict with any document which is binding upon it or any of its
assets;
(c) conflict with its constitutional documents; or
(d) conflict with any law, regulation or official or judicial order of
any government, governmental body or court, domestic or foreign,
having jurisdiction over it.
13.6 NO LITIGATION
No litigation, arbitration or administrative proceedings are current or,
to its knowledge, pending or threatened.
13.7 NO DEFAULT
No Master Intercompany Loan Event of Default is continuing unremedied (if
capable of remedy) or unwaived or would result from the making of any
Term Advance.
13.8 AUTHORISATIONS
All consents, licences, approvals, notices and authorisations required or
desirable in connection with the entry into, performance, validity and
enforceability of, and the transactions contemplated by, the Transaction
Documents have been obtained or effected (as appropriate) and are in full
force and effect.
13.9 REGISTRATION REQUIREMENTS
Except for due registration of the Funding Deed of Charge under Section
395 of the Companies Act 1985, it is not necessary that the Funding Deed
of Charge or this Agreement be filed, recorded or enrolled with any
authority or that, except for registration fees payable to the Registrar
of Companies in respect of the Funding Deed of Charge, any stamp,
registration or similar tax be paid on or in respect thereof.
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13.10 RANKING OF SECURITY
The security conferred by the Funding Deed of Charge constitutes a first
priority security interest of the type described, and over the security
assets referred to, in the Funding Deed of Charge and the Funding Charged
Property is not subject to any prior or pari passu Security Interests.
13.11 NO OTHER BUSINESS
(a) It has not traded or carried on any business since its date of
incorporation or engaged in any activity whatsoever that is not
incidental to or necessary in connection with any of the
activities in which the Transaction Documents provide or envisage
that it will engage; and
(b) it is not party to any material agreements other than the
Transaction Documents.
13.12 OWNERSHIP
(a) Its entire issued share capital is beneficially owned and
controlled by Holdings; and
(b) its shares are fully paid.
13.13 GOOD TITLE AS TO ASSETS
Subject to the Security Interests created under the Funding Deed of
Charge, it is and will remain the absolute beneficial owner of the
Funding Share and absolute legal and beneficial owner of all other assets
charged or assigned by the Funding Deed of Charge to which it is a party.
13.14 TAX
(a) It is a resident for tax purposes and legally domiciled in its
jurisdiction of incorporation; and
(b) it has no branch, business establishment or other fixed
establishment outside the United Kingdom.
13.15 REPETITION
The representations in this CLAUSE 13 shall survive the execution of this
Agreement and the making of each Term Advance under this Agreement, and
shall be repeated by Funding on each Closing Date relating to the making
of each Term Advance by reference to the facts and circumstances then
existing.
14. COVENANTS
14.1 DURATION
The undertakings in this CLAUSE 14 shall remain in force from the date of
this Agreement for so long as any amount is or may be outstanding under
this Agreement.
14.2 INFORMATION
Funding shall supply to the Security Trustee and the Rating Agencies:
(a) as soon as the same are available its audited accounts for that
Financial Year; and
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(b) promptly, such other information in connection with the matters
contemplated by the Transaction Documents as the Security Trustee
or the Rating Agencies may reasonably request.
14.3 NOTIFICATION OF DEFAULT
Funding shall notify the Master Issuer and the Security Trustee of any
Master Intercompany Loan Event of Default (and the steps, if any, being
taken to remedy it) promptly upon Funding becoming aware of its
occurrence.
14.4 AUTHORISATIONS
Funding shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) upon request, supply certified copies to the Master Issuer and the
Security Trustee of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Transaction Document to which it is a party.
14.5 PARI PASSU RANKING
Funding shall procure that its obligations under the Transaction
Documents do and will rank at least pari passu with all its other present
and future unsecured obligations, except for obligations mandatorily
preferred by law.
14.6 NEGATIVE PLEDGE
Funding shall not create or permit to subsist any Security Interest over
or in respect of any of its assets (unless arising by operation of law)
other than as provided pursuant to the Transaction Documents.
14.7 DISPOSALS
Funding shall not, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily, sell, lend, assign, transfer, lease, part with or
otherwise dispose of or grant any option over all or any part of its
assets, properties or undertakings or any interest, estate, right, title
or benefit therein, other than as provided for pursuant to the
Transaction Documents.
14.8 MERGERS AND ACQUISITIONS
(a) Funding shall not enter into any amalgamation, demerger, merger or
reconstruction.
(b) Funding shall not acquire any assets or business or make any
investments other than as contemplated in the Transaction
Documents.
14.9 LENDING AND BORROWING
(a) Except as provided or contemplated under the Transaction
Documents, Funding shall not make any loans or provide any other
form of credit to any person.
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(b) Funding shall not give any guarantee or indemnity to or for the
benefit of any person in respect of any obligation of any other
person or enter into any document under which Funding assumes any
liability of any other person.
(c) Funding shall not incur any indebtedness in respect of any
borrowed money other than under the Transaction Documents.
14.10 SHARES AND DIVIDENDS
Funding shall not:
(a) declare or pay any dividend or make any other distribution in
respect of any of its shares other than in accordance with the
Funding Deed of Charge;
(b) issue any further shares or alter any rights attaching to its
issued shares as at the date hereof; or
(c) repay or redeem any of its share capital.
14.11 CHANGE OF BUSINESS
(a) Funding shall not carry on any business or engage in any activity
other than as contemplated by the Transaction Documents or which
is not incidental to or necessary in connection with any of the
activities in which the Transaction Documents provide or envisage
that Funding will engage.
(b) Funding shall not have any subsidiaries or subsidiary undertakings
as defined in the Companies Act 1985, as amended.
(c) Funding shall not have any employees or own any premises.
14.12 TAX
Funding shall not apply to become part of any group for the purposes of
sections 43A-D of the Value Added Tax Act 1994 (including any other
legislative provisions supplementing the same) with the Master Issuer
unless required to do so by law.
14.13 UNITED STATES ACTIVITIES
Funding will not engage in any activities in the United States (directly
or through agents), will not derive any income from United States sources
as determined under United States income tax principles and will not hold
any property if doing so would cause it to be engaged or deemed to be
engaged in a trade or business within the United States as determined
under United States tax principles.
15. DEFAULT
15.1 MASTER INTERCOMPANY LOAN EVENTS OF DEFAULT
Each of the events set out in CLAUSE 15.2 to CLAUSE 15.8 (inclusive) is a
MASTER INTERCOMPANY LOAN EVENT OF DEFAULT (whether or not caused by any
reason whatsoever outside the control of Funding or any other person).
15
15.2 NON-PAYMENT
Subject to CLAUSE 5.1, Funding does not pay on the due date or such
failure to pay continues for a period of three London Business Days after
such due date any amount payable by it under this Agreement or any other
loan agreement entered into by Funding at the place at and in the
currency in which it is expressed to be payable.
15.3 BREACH OF OTHER OBLIGATIONS
Funding does not comply in any material respect (in the opinion of the
Security Trustee) with any of its obligations under the Transaction
Documents to which it is a party (other than those referred to in CLAUSE
15.2) and such non-compliance, if capable of remedy, is not remedied
promptly and in any event within twenty London Business Days of Funding
becoming aware of the non-compliance or receipt of a written notice from
the Security Trustee requiring Funding's non-compliance to be remedied.
15.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Transaction Document or in any document delivered by
or on behalf of Funding under or in connection with any Transaction
Document is incorrect in any material respect (in the opinion of the
Security Trustee) when made or deemed to be made or repeated.
15.5 INSOLVENCY
Any corporate action is taken by Funding, or any legal proceedings are
started, for the winding-up, dissolution, administration or appointment
of a liquidator, receiver, administrator, administrative receiver,
trustee or similar officer of Funding or of any or all of Funding's
revenues and assets or any application is made or petition is lodged for
the making of an administration order in relation to Funding.
15.6 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset of
Funding and is not discharged within twenty London Business Days.
15.7 UNLAWFULNESS
It is or becomes unlawful for Funding to perform any of its obligations
under any Transaction Document.
15.8 THE FUNDING DEED OF CHARGE
The Funding Deed of Charge is no longer binding on or enforceable against
Funding or effective to create the security intended to be created by it.
15.9 OWNERSHIP
The entire issued share capital of Funding ceases to be beneficially
owned and controlled by Holdings.
15.10 ACCELERATION OF MASTER INTERCOMPANY LOAN
Upon the occurrence of a Master Intercompany Loan Event of Default which
is continuing unremedied and/or has not been waived, the Security Trustee
may by written notice to Funding (a
16
MASTER INTERCOMPANY LOAN ACCELERATION NOTICE) which is copied to each of
the Funding Secured Creditors and the Mortgages Trustee:
(a) declare all Term Advances made under this Agreement to be
immediately due and payable, whereupon the same shall, subject to
CLAUSE 15.11, become so payable together with accrued interest
thereon and any other sums then owed by Funding under this
Agreement; and/or
(b) declare the Term Advances to be due and payable on demand of the
Security Trustee.
15.11 REPAYMENT OF MASTER INTERCOMPANY LOAN ON ACCELERATION
Upon the Security Trustee declaring the Term Advances to be immediately
due and payable pursuant to CLAUSE 15.10, the amount due and payable in
respect of each Term Advance shall be paid by Funding without penalty or
premium but subject to CLAUSE 16.
16. DEFAULT INTEREST AND INDEMNITY
16.1 DEFAULT LOAN INTEREST PERIODS
If any sum due and payable by Funding under this Agreement is not paid on
the due date for payment in accordance with this Agreement or if any sum
due and payable by Funding under any judgment or decree of any court in
connection with this Agreement is not paid on the date of such judgment
or decree, the period beginning on such due date or, as the case may be,
the date of such judgment or decree and ending on the date upon which the
obligation of Funding to pay such sum (the balance thereof for the time
being unpaid being herein referred to as an UNPAID SUM) is discharged
shall be divided into successive periods, each of which (other than the
first) shall start on (and include) an Interest Payment Date and end on
(but exclude) the next Interest Payment Date unless the Security Trustee
otherwise provides having regard to when such unpaid sum is likely to be
paid.
16.2 DEFAULT INTEREST
During each such period relating to an unpaid sum as is mentioned in this
CLAUSE 16 an unpaid sum shall bear interest at the rate per annum which
the Master Issuer, acting reasonably, determines and certifies to Funding
and the Security Trustee will be sufficient to enable it to pay interest
and other costs and indemnities on or in respect of any amount which the
Master Issuer does not pay as a result of Funding's non-payment under
this Agreement, as a result of such unpaid sum not being paid to it.
16.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under CLAUSE 16.2 in respect of an
unpaid sum shall be due and payable and shall be paid by Funding at the
end of the period by reference to which it is calculated.
16.4 BROKEN PERIODS
Funding shall forthwith on demand indemnify the Master Issuer against any
loss or liability that the Master Issuer incurs as a consequence of any
payment of principal being received from any source otherwise than on an
Interest Payment Date or an overdue amount being received otherwise than
on its due date.
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16.5 FUNDING'S PAYMENT INDEMNITY
Funding undertakes to indemnify the Master Issuer:
(a) against any cost, claim, loss, expense (including legal fees) or
liability together with any amount in respect of Irrecoverable VAT
thereon (other than by reason of the negligence or wilful default
by the Master Issuer) which it may sustain or incur as a
consequence of the occurrence of any Master Intercompany Loan
Event of Default or any default by Funding in the performance of
any of the obligations expressed to be assumed by it in any of the
Transaction Documents (other than by reason of negligence or
wilful default on the part of the Master Issuer or prior breach by
the Master Issuer of the terms of any of the Transaction Documents
to which it is a party);
(b) against any loss it may suffer as a result of its funding a Term
Advance requested by Funding under the Master Intercompany Loan
Agreement but not made; and
(c) against any other loss or liability (other than by reason of the
negligence or default of the Master Issuer or breach by the Master
Issuer of the terms of any of the Transaction Documents to which
it is a party (except where such breach is caused by the prior
breach of Funding) or loss of profit) it may suffer by reason of
having made a Term Advance available or entering into this
Agreement or enforcing any security granted pursuant to the
Funding Deed of Charge.
17. PAYMENTS
17.1 PAYMENT
(a) Subject to CLAUSE 5, all amounts of interest and principal to be
paid to the Master Issuer under this Agreement shall be paid in
Sterling for value by Funding to the Master Issuer Transaction
Account and the relevant irrevocable payment instruction for such
payment shall be given by Funding by no later than noon to the
Master Issuer Cash Manager under the Master Issuer Cash Management
Agreement (with a copy to the Master Issuer and the Security
Trustee) on the Distribution Date immediately preceding the
relevant Interest Payment Date.
(b) On each date on which this Agreement requires any amount other
than the amounts specified in CLAUSE 17.1(A) to be paid by
Funding, Funding shall, save as provided otherwise herein, make
the same available to the Master Issuer by payment in Sterling in
immediately available, freely transferable, cleared funds to the
Master Issuer Transaction Account.
17.2 ALTERNATIVE PAYMENT ARRANGEMENTS
If, at any time, it shall become impracticable (by reason of any action
of any governmental authority or any change in law, exchange control
regulations or any similar event) for Funding to make any payments under
this Agreement in the manner specified in CLAUSE 17.1, then Funding shall
make such alternative arrangements for the payment direct to the Master
Issuer of amounts due under this Agreement as are acceptable to the
Security Trustee.
17.3 NO SET-OFF
All payments required to be made by Funding under this Agreement shall be
calculated without reference to any set-off or counterclaim and shall be
made free and clear of, and without any deduction for or on account of,
any set-off or counterclaim.
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18. ENTRENCHED PROVISIONS
Each of Funding, the Master Issuer and the Security Trustee acknowledge
and agree that Funding may from time to time enter into New Intercompany
Loan Agreements and that the obligation of Funding to repay the Term
Advances made under this Agreement will rank pari passu with the
obligations of Funding to repay any such other loans made under such New
Intercompany Loan Agreements. If Funding intends to enter into a New
Intercompany Loan Agreement then the provisions of this Agreement may be
varied (with the consent of the parties to this Agreement to the extent
necessary to reflect the terms of such New Intercompany Loan Agreement)
PROVIDED THAT no variation shall be made to any of the following terms
without the prior written consent of the Funding Secured Creditors and
the Rating Agencies:
(a) the determination of the Term Advance Rates of Interest;
(b) CLAUSE 5 (Limited Recourse);
(c) CLAUSE 10 (Taxes); and
(d) CLAUSE 19.5 (Security Trustee).
19. FURTHER PROVISIONS
19.1 EVIDENCE OF INDEBTEDNESS
In any proceeding, action or claim relating to a Term Advance a statement
as to any amount due to the Master Issuer under such Term Advance which
is certified as being correct by an officer of the Security Trustee
shall, unless otherwise provided in this Agreement, be prima facie
evidence that such amount is in fact due and payable.
19.2 ENTIRE AGREEMENT, AMENDMENTS AND WAIVER AND RIGHTS CUMULATIVE
(a) This Agreement sets out the entire agreement and understanding
between the parties with respect to the subject matter of this
Agreement superseding all prior oral or written understandings other
than the other Transaction Documents.
(b) Subject to CLAUSE 18, no amendment or waiver of any provision of
this Agreement nor consent to any departure by any of the parties
therefrom shall in any event be effective unless the same shall be in
writing and signed by each of the parties hereto. In the case of a
waiver or consent, such waiver or consent shall be effective only in
the specific instance and as against the party or parties giving it for
the specific purpose for which it is given.
(c) The respective rights of each of the parties to this Agreement
are cumulative and may be exercised as often as they consider
appropriate. No failure on the part of any party to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any
other right. The remedies in this Agreement are cumulative and not
exclusive of any remedies provided by law.
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19.3 ASSIGNMENT
Neither the Master Issuer nor Funding may assign or transfer any of its
respective rights and obligations under this Agreement PROVIDED THAT:
(a) the Master Issuer may assign its rights, title,
interest or benefit hereunder to the Security Trustee pursuant
to the Master Issuer Deed of Charge; and
(b) Funding may assign its rights hereunder to the Security
Trustee pursuant to the Funding Deed of Charge.
19.4 SEVERABILITY
If a provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of this Agreement; or
(b) the validity or enforceability in other jurisdictions of that
or any other provision of this Agreement.
19.5 SECURITY TRUSTEE
The Security Trustee shall have no responsibility for any of the
obligations of the Master Issuer or any other party to this Agreement
(other than itself). For the avoidance of doubt, the parties to this
Agreement acknowledge that the rights and obligations of the Security
Trustee under this Agreement are governed by the Funding Deed of
Charge.
19.6 COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and
the same instrument.
19.7 THIRD PARTY RIGHTS
A person who is not a party to this Agreement may not enforce any of
its terms under the Contracts (Rights of Third Parties) Act 1999, but
this shall not affect any right or remedy of a third party which exists
or is available apart from that Act.
20. REDENOMINATION
Each obligation under this Agreement which has been denominated in
Sterling shall be redenominated in Euro in accordance with applicable
legislation passed by the European Monetary Union upon such
redenomination of the Master Issuer Notes.
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21. NOTICES
Any notices to be given pursuant to this Agreement to any of the
parties hereto shall be sufficiently served if sent by prepaid first
class post, by hand or facsimile transmission and shall be deemed to be
given (in the case of facsimile transmission) when despatched, (where
delivered by hand) on the day of delivery if delivered before 5.00 p.m.
on a London Business Day or on the next London Business Day if
delivered thereafter or (in the case of first class post) when it would
be received in the ordinary course of the post and shall be sent:
(a) in the case of the Master Issuer, to Holmes Master
Issuer PLC, at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (facsimile number (44) 20 7756 5627) for
the attention of the Company Secretary with a copy to Abbey
National plc, c/o Abbey House (AAM 129), 201 Grafton Gate
East, Milton Keynes MK9 1AN (facsimile number (44) 1908 343
019) for the attention of Securitisation Team, Retail Credit
Risk;
(b) in the case of Funding, to Holmes Funding Limited, c/o
Abbey National plc Abbey National House, 2 Triton Square,
Regent's Place, London NW1 3AN (facsimile number (44) 20 7756
5627) for the attention of the Company Secretary with a copy
to Abbey National plc, c/o Abbey House, (AAM 129), 201 Grafton
Gate East, Milton Keynes MK9 1AN (facsimile number (44) 1908
343019) for the attention of Securitisation Team, Retail
Credit Risk;
(c) in the case of the Security Trustee, to The Bank of New
York, acting through its London Branch, One Canada Square,
London E14 5AL (facsimile number (44) 20 7964 6399) for the
attention of the Corporate Trust Administration; and
(d) in the case of the Agent Bank: to The Bank of New York,
acting through its London Branch, 40th Floor, One Canada
Square, London E14 5AL, (facsimile number 44 20 7964 6399) for
the attention of Global Structured Finance - Corporate Trust,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this CLAUSE 21. All notices served under this Agreement shall be
simultaneously copied to the Security Trustee by the person serving the
same.
22. GOVERNING LAW AND SUBMISSION TO JURISDICTION
22.1 This Agreement is governed by the laws of England.
22.2 Each party to this Agreement hereby irrevocably submits to the
exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English courts are an
inconvenient forum for the maintenance or hearing of such action or
proceeding.
IN WITNESS WHEREOF the parties have caused this Agreement to be duly
executed on the day and year first before written.
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SCHEDULE 1
CONDITIONS PRECEDENT
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, execution and performance of the Term Advance Supplement and
each of the relevant Transaction Documents related to the relevant Term
Advance Supplement 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 Term Advance
Supplement and undertaking to notify the Security Trustee if
that position should change prior to the relevant Closing
Date; and
(ii) as to the identity and specimen signatures of the
directors and signatories of Funding.
2. LEGAL OPINION
Legal opinions of:
(a) Allen & Overy LLP, English and U.S. legal advisers to
the Security Trustee, addressed to the Seller, the Master
Issuer, Funding and to the Security Trustee;
(b) Slaughter and May, as English legal advisors to the
Master Issuer and the Servicer, addressed to the Seller and the
Master Issuer;
(c) Cleary Gottlieb Steen & Hamilton LLP, U.S. legal
advisors to the Master Issuer and the Servicer, addressed to
the Seller and the Master Issuer; and
(d) Tods Murray LLP, Scottish legal advisers to the Seller,
the Master Issuer, Funding and the Security Trustee.
3. TRANSACTION DOCUMENTS
Duly executed copies of:
(a) Bank Account Agreement;
(b) Cash Management Agreement;
(c) Funding Deed of Charge;
(d) Master Definitions and Construction Schedule;
(e) Master Intercompany Loan Agreement;
(f) Master Issuer Bank Account Agreement;
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(g) Master Issuer Cash Management Agreement;
(h) Master Issuer Corporate Services Agreement;
(i) Master Issuer Deed of Charge;
(j) Master Issuer Master Definitions Schedule;
(k) Master Issuer Paying Agent and Agent Bank Agreement;
(l) Master Issuer Post-Enforcement Call Option Agreement;
(m) Master Issuer Swap Agreements;
(n) Master Issuer Trust Deed; and
(o) Mortgage Sale Agreement.
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SCHEDULE 2
FORM OF TERM ADVANCE NOTICE
From: Holmes Funding Limited (FUNDING)
To: Holmes Master Issuer plc (the MASTER ISSUER)
Copy: The Bank of New York, acting through its London Branch
(the SECURITY TRUSTEE)
Dear Sirs,
1. We refer to the agreement between, inter alios,
ourselves, the Master Issuer and the Security Trustee (as from
time to time amended, varied, novated or supplemented (the
MASTER INTERCOMPANY LOAN AGREEMENT)) dated [o] 2008 whereby a
Master Intercompany Loan Facility was made available to us.
Terms defined in the Master Intercompany Loan Agreement shall
have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Master
Intercompany Loan Agreement and upon the terms and subject to
the conditions contained therein, we wish the following Term
Advances to be made available to us on [specify Closing Date]:
(a) Series [o] [o] (Class [o]) Term Advance to be funded by
the Series [o] Class [o] Master Issuer Notes on the Closing
Date:
(i) principal amount and currency of [o];
(ii) specified Currency Exchange Rate of GBP 1.00/[o];
(iii) Principal amount (in Sterling) available to be drawn in
respect of such Term Advance of (pound)[o];
[repeat for all applicable Term Advances]
3. The interest rate(s) applicable to each Term Advance will be as follows:
(a) Series [o] [o] (Class [o]) Term Advance: [o] [Set out relevant
interest rate(s)]
[repeat for all applicable Term Advances]
Yours faithfully,
For and on behalf of
HOLMES FUNDING LIMITED
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SCHEDULE 3
FORM OF TERM ADVANCE SUPPLEMENT
As attached
25
FORM OF TERM ADVANCE SUPPLEMENT
DATED [O]
HOLMES FUNDING LIMITED
as Funding
HOLMES MASTER ISSUER PLC
as Master Issuer
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Security Trustee
and
THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH
as Agent Bank
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THIS TERM ADVANCE SUPPLEMENT is dated [o] between:
(1) HOLMES FUNDING LIMITED (registered number 3982428), a private
limited company incorporated under the laws of England and Wales, whose
registered office is at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (FUNDING);
(2) HOLMES MASTER ISSUER PLC a company incorporated in England and
Wales with limited liability (registered number 5953811) and having its
registered office at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (the MASTER ISSUER);
(3) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH (formerly
known as JPMorgan Chase Bank, N.A., London Branch) (the SECURITY
TRUSTEE, which expression where the context permits shall include such
person and all other persons for the time being acting as the trustee
or trustees under the Funding Deed of Charge) whose principal office is
at One Canada Square, London E14 5AL; and
(4) THE BANK OF NEW YORK, ACTING THROUGH ITS LONDON BRANCH acting
through its offices at 40th Floor, One Canada Square, London E14 5AL
(acting in its capacity as the AGENT BANK appointed by the Master
Issuer under the Master Issuer Paying Agent and Agent Bank Agreement).
This document constitutes the Term Advance Supplement relating to the
Master Issuer Term Advances described herein. Terms used herein shall be deemed
to be defined as such for the purposes of the Master Intercompany Loan Agreement
entered into between the parties hereto on [o] 2008. This Term Advance
Supplement contains the final terms of the Master Issuer Term Advances
identified and described herein, is supplemental to and must be read in
conjunction with the Master Intercompany Loan Agreement.
[TO BE REPEATED FOR EACH TERM ADVANCE FUNDED BY MASTER ISSUER NOTES OF
EACH CLASS OF THE SAME SERIES]
TERM ADVANCE: The Series [o] Class [o] Master Issuer Notes will fund
the [identifier] Master Issuer Term Advance which shall have the following
terms:
1. Borrower: Holmes Funding Limited
2. Lender: Holmes Master Issuer plc
3. (i) Term Advance Rating: [o]
(ii) Series Number: [o]
4. Initial Outstanding Principal Balance: [o]
5. (i) Closing Date: [o]
(ii) Interest Commencement Date: [o]
(iii) Interest Determination Dates: [o]
6. Final Repayment Date: [o]
7. Loan Payment Dates: [o]
8. Relevant Margin: [o]
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9. Loan Reference Rate: [o]
10. Step-Up Date: [Not Applicable/The Interest Payment Date
occurring in [specify date]]
11. Relevant Margin following Step-Up Date: [Not Applicable/[o]]
12. Redemption/Payment Basis: [Bullet Redemption]
[Scheduled Amortisation]
[Pass-through]
13. Change of Redemption/Payment Basis: [Specify details of any provision for change of
Term Advances into another Redemption/Payment Basis
14. Details relating to Bullet Term Advance: [Applicable/Not Applicable]
[if not applicable, delete the remaining
sub-paragraphs of this paragraph]
(i) Relevant Accumulation Amount: [o]
(ii) Bullet Redemption Date: [o]
15. Details relating to Scheduled [Applicable/Not Applicable]
Amortisation Term Advance:
[if the Scheduled Amortisation Term Advance is
applicable, specify the Scheduled Amortisation Dates and
Scheduled Amortisation Instalments below]
[if not applicable, delete the remaining
sub-paragraphs of this paragraph]
(i) Scheduled Amortisation Dates: The Interest Payment Dates occurring in [o]
(ii) Relevant Accumulation Amounts: [o]
16. Details relating to Pass-through Term [Applicable/Not Applicable]
Advances:
[If the Pass-through Term Advance is applicable, specify the
Interest Payment Date following which the Pass-Through
Term Advances will be due]
17. Other terms and special conditions: [Not Applicable/give details]
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CONFIRMATIONS:
Funding confirms that:
(a) no Master Intercompany Loan Event of Default has occurred and is
continuing which has not been waived, or would result from the making
of such Master Issuer Term Advance; and
(b) the representations and warranties set out in CLAUSE 13 of the
Master Intercompany Loan Agreement are true on and as of the Closing
Date specified in this Term Advance Supplement by reference to the
facts and circumstances then existing.
The Master Issuer confirms that no Note Event of Default has occurred
and is continuing which has not been waived, or would result from the making of
such Master Issuer Term Advance.
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EXECUTION PAGE
FOR TERM ADVANCE SUPPLEMENT
FUNDING
EXECUTED for and on behalf of )
HOLMES FUNDING LIMITED )
by: )
_____________________
Name:
MASTER ISSUER
EXECUTED for and on behalf of )
HOLMES MASTER ISSUER PLC )
by: )
_____________________
Name:
SECURITY TRUSTEE
EXECUTED for and on behalf of )
BNY CORPORATE TRUSTEE )
SERVICES LIMITED ) The Bank of New York, acting through its
London Branch
acting by its attorney: ) by its attorney _____________________
_____________________
Name:
AGENT BANK
EXECUTED for and on behalf of )
THE BANK OF NEW YORK, )
LONDON BRANCH )
by )
_____________________
Name:
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SCHEDULE 4
SOLVENCY CERTIFICATE
HOLMES FUNDING LIMITED (THE "COMPANY")
To: Holmes Master Issuer plc (the MASTER ISSUER)
Copy: BNY Corporate Services Limited (the SECURITY TRUSTEE)
We the undersigned HEREBY CERTIFY, that (i) having made all appropriate
searches and investigations of the Company's books and records and the Company's
accounts (both management and those required by law); and (ii) the officers of
the Company having duly considered the provisions of the insolvency laws of the
United Kingdom (including, without limitation, the provisions of sections 123
and 238 to 243 and 423 of the Insolvency Act 1986, as amended (the ACT) and the
provisions of the equivalent common law of Scotland regarding gratuitous
alienations and fraudulent preferences) we have determined that:
(a) the Company is not unable to pay its debts within the meaning of section
123 of the Act and would not become unable to do so in consequence of
entering into the Transaction Documents to which it is a party or making
any drawing or granting any security under the Transaction Documents to
which it is a party, and the Company's assets currently exceed its
liabilities (taking into account its actual, contingent and prospective
liabilities) and will continue to do so notwithstanding the entry into
by it of the Transaction Documents and the making of any drawing or the
granting of any security under the Transaction Documents to which it is
a party;
(b) no execution or other process issued on a judgment, decree or
order of any court in favour of a creditor of the Company remains
unsatisfied in whole or in part;
(c) to the best of our knowledge and belief no corporate action has
been taken or is pending, no other steps have been taken and no legal
proceedings have been commenced or are threatened or are pending for
(i) the winding-up, liquidation, dissolution, administration or
reorganisation of the Company; or (ii) the Company to enter into any
composition or arrangement with its creditors generally; or (iii) the
appointment of a receiver, administrator, administrative receiver,
trustee or similar officer in respect of the Company or any of its
property, undertaking or assets. No event equivalent to any of the
foregoing has occurred in or under the laws of any relevant
jurisdiction;
(d) neither the entry into of the Transaction Documents to which it
is a party nor the making of any drawing nor granting of security under
the Transaction Documents to which it is a party would be a transaction
at an undervalue within the meaning of section 238 of the Act, since
the value of any consideration received by the Company as a result of
such drawing and/or grant of security would not be significantly less
than the value of any consideration provided by the Company under the
Transaction Documents to which it is a party;
(e) the entry into of the Transaction Documents to which it is a
party, any drawing made by the Company under or pursuant to the
Transaction Documents to which it is a party, and any security granted
by the Company under or pursuant to the Transaction Documents to which
it is a party will be entered into or made, as the case may be, by the
Company, in good faith and for the purpose of carrying on its business,
and there are reasonable grounds for believing that such entry into of
such Transaction Documents, such drawings and grants of security would
benefit the Company;
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(f) neither the entry into the Transaction Documents to which it is
a party nor the making of any drawing nor the granting of any security
under the Transaction Documents to which it is a party would be a
gratuitous alienation under section 242 of the Act (and equivalent
provisions of common law of Scotland), since such drawing and/or grant
of security was made for adequate consideration;
(g) in entering into the Transaction Documents to which it is a
party, making a drawing under or pursuant to the Transaction Documents
to which it is a party and/or granting security under or pursuant to
the Transaction Documents to which it is a party the Company has no
desire to give a preference to any person as contemplated by section
239 of the Act nor is it the purpose of the Company to put assets
beyond the reach of a person who is making, or may at some time make, a
claim against the Company or of otherwise prejudicing the interests of
such a person in relation to the claim which he is making or may make;
(h) in entering into the Transaction Documents to which it is a
party, making a drawing under or pursuant to the Transaction Documents
to which it is a party and/or granting security under or pursuant to
the Transaction Documents to which it is a party, the Company has not
and will not breach any provision or exceed any powers contained in its
Memorandum and Articles of Association; and
(i) the transaction contemplated by the Transaction Documents
constitute reciprocal obligations of the Company with the other parties
thereto for the purposes of section 243 of the Act (and equivalent
provisions of common law of Scotland) and neither the entry into the
Transaction Documents to which it is a party nor the making of any
drawing nor the granting of any security under or pursuant to the
Transaction Documents to which it is a party is or will be collusive
for the purposes of prejudicing the general body of creditors of the
Company.
Terms defined in the master definitions and construction schedule
signed by, amongst others, the Master Issuer and the Security Trustee and dated
[o] 2008 (as the same may be amended, varied or supplemented from time to time)
shall have the same respective meanings when used in this Certificate.
DATED [o]
Signed for and on behalf of Holmes Funding Limited
......................................................
Director
......................................................
Director/Secretary
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EXECUTION PAGE
FUNDING
EXECUTED for and on behalf of )
HOLMES FUNDING LIMITED )
by: )
Name:
MASTER ISSUER
EXECUTED for and on behalf of )
HOLMES MASTER ISSUER PLC )
by: )
Name:
SECURITY TRUSTEE
EXECUTED for and on behalf of )
BNY CORPORATE TRUSTEE )
SERVICES LIMITED ) The Bank of New York, acting through its
London Branch
acting by its attorney: ) by its attorney
Name:
AGENT BANK
EXECUTED for and on behalf of )
THE BANK OF NEW YORK, ACTING
THROUGH ITS LONDON BRANCH )
by )
Name:
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