Exhibit 4.9
Dated 19 January 2005
NORTHERN ROCK PLC
as Issuer Cash Manager
GRANITE MASTER ISSUER PLC
as Master Issuer
- and -
THE BANK OF NEW YORK
as Issuer Security Trustee
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ISSUER CASH MANAGEMENT AGREEMENT
(as amended by a Deed of Amendment
dated August 2005)
-----------------------------------------------------
SIDLEY AUSTIN BROWN & WOOD
WOOLGATE EXCHANGE
25 BASINGHALL STREET
LONDON EC2V 5HA
TELEPHONE 020 7360 3600
FACSIMILE 020 7626 7937
REF: 30507-30040/883284
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CONTENTS
1. Definitions
and Interpretation........................................1
2. Appointment
of Issuer Cash Manager....................................2
3. The Issuer
Cash Management Services...................................2
4. Payments,
Accounts, Ledgers...........................................3
5. No
Liability..........................................................8
6. Costs and
Expenses....................................................8
7.
Information...........................................................9
8.
Remuneration.........................................................11
9. Covenants,
Representations and Warranties of Issuer Cash Manager.....11
10. Issuer Cash
Management Services Non-Exclusive........................12
11.
Termination..........................................................12
12. Further
Assurances...................................................15
13.
Miscellaneous........................................................16
14.
Confidentiality......................................................16
15. No
Partnership.......................................................17
16.
Assignment...........................................................17
17. The Issuer
Security Trustee..........................................17
18. New
Notes............................................................18
19. Non Petition
Covenant; Limited Recourse..............................18
20. Amendments and
Waiver................................................19
21.
Notices..............................................................20
22. Third Party
Rights...................................................21
23. Execution in
Counterparts; Severability..............................21
24. Governing Law and
Jurisdiction; Appropriate Forum....................21
SCHEDULE 1 The Issuer
Cash Management Services...........................22
SCHEDULE 2 Cash
Management and Maintenance of Ledgers....................25
i
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CONTENTS
SCHEDULE 3 Form of
Issuer Quarterly Report...............................32
SCHEDULE 4 Issuer Cash
Manager Representations and Warranties............35
ii
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THIS ISSUER CASH MANAGEMENT AGREEMENT is made on 19 January
2005
BETWEEN:
(1) NORTHERN
ROCK PLC (registered number 3273685), a public limited company
incorporated under the laws of England and Wales whose registered
office
is at
Northern Rock House, Gosforth, Newcastle upon Tyne NE3 4PL in
its
capacity
as the Issuer Cash Manager;
(2) GRANITE
MASTER ISSUER PLC (registered number 5250668), 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
the Master
Issuer; and
(3) THE BANK OF
NEW YORK, whose principal office is at 48th Floor, One
Canada
Square, London E14 5AL, in its capacity as Issuer Security
Trustee.
WHEREAS:
(A) On the first
Closing Date following the Funding 2 Programme Date, and on
subsequent
Closing Dates, the Master Issuer may issue Issuer Notes
constituted by the Issuer Trust Deed. From the proceeds of the
issue of
such
Issuer Notes, the Master Issuer shall make advances of funds to
Granite
Finance Funding 2 Limited, pursuant to the terms of the Global
Intercompany Loan Agreement.
(B) The Issuer
Cash Manager is willing to provide cash management services
to the
Master Issuer on the terms and subject to the conditions
contained
in this Agreement.
IT IS HEREBY AGREED as follows:
1.
Definitions and Interpretation
1.1 The
provisions of:
(a)
the Programme
Master Definitions Schedule signed for the purposes
of identification by Sidley Austin Brown & Wood and Allen &
Overy
LLP on 19 January 2005, and
(b)
the Issuer
Master Definitions Schedule signed for the purposes of
identification by Sidley Austin Brown & Wood and Allen &
Overy LLP
on 19 January 2005,
(as the
same have been and may be amended, varied or supplemented from
time to
time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Agreement.
The
Issuer
Master Definitions Schedule specified above shall prevail to
the
extent
that it conflicts with the Programme Master Definitions
Schedule.
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2.
Appointment of Issuer Cash Manager
2.1 Appointment:
Until termination pursuant to Clause 12 (Termination), the
Master
Issuer hereby appoints the Issuer Cash Manager as its lawful
agent on
its behalf to provide the Issuer Cash Management Services set
out in
this Agreement, including in relation to the Issuer Notes to be
issued by
the Master Issuer. The Issuer Cash Manager hereby accepts such
appointment on the terms and subject to the conditions of this
Agreement.
The Issuer Security Trustee consents to the appointment of
the Issuer
Cash Manager on the terms of and subject to the conditions of
this
Agreement.
2.2 Duties
prescribed by Transaction Documents: For the avoidance of doubt
and in
connection with the powers conferred under Clause 2.1
(Appointment), save as expressly provided elsewhere in this
Agreement,
nothing
herein shall be construed so as to give the Issuer Cash Manager
any
powers, rights, authorities, directions or obligations other than
as
specified
in this Agreement or any of the other Transaction Documents.
2.3 Appointment
conditional upon issuance of Issuer Notes: The appointment
pursuant
to Clause 2.1 (Appointment) is conditional upon the issue of a
Series of
Issuer Notes and shall take effect upon and from the Closing
Date in
respect of such Series of Notes automatically, without any
further
action on the part of any person, PROVIDED THAT if the issue of
a Series
of Issuer Notes has not occurred by 31 January 2005, or such
later date
as the Master Issuer and the Arrangers may agree, this
Agreement
shall cease to be of further effect.
3. The
Issuer Cash Management Services
3.1 General: The
Issuer Cash Manager shall provide the services set out in
this
Agreement (including, without limitation, Schedules 1 and 2
attached
hereto) (the "Issuer Cash Management Services").
3.2 Approvals
and authorisations: The Issuer Cash Manager shall maintain, or
use
reasonable endeavours to procure the maintenance of, the
approvals,
authorisations, consents and licences required in connection with
the
business
of the Master Issuer and shall prepare and submit, or procure
the
preparation and submission of, on behalf of the Master Issuer,
all
necessary
applications and requests for any further approvals,
authorisations, consents or licences which may be required in
connection
with the
business of the Master Issuer and shall, so far as it
reasonably
can do so, perform the Issuer Cash Management Services in
such a way
as not to prejudice the continuation of any such approvals,
authorisations, consents or licences.
3.3 Compliance
with Transaction Documents, etc.: The Issuer Cash Management
Services shall
include procuring (so far as the Issuer Cash Manager,
using its
reasonable endeavours, is able so to do) compliance by the
Master
Issuer with all applicable legal requirements and with the
terms
of the
Issuer Transaction Documents, PROVIDED THAT the Issuer Cash
Manager
shall not lend or provide any sum to the Master Issuer and the
Issuer
Cash Manager shall have no liability whatsoever to the Master
Issuer,
the Issuer Security Trustee or any other person for any failure
by the
Master Issuer to make any payment due by any of them under any
of
the Issuer
Transaction Documents (other than to the extent arising from
the Issuer
Cash Manager failing to perform any of its obligations under
any of the
Transaction
2
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Documents).
3.4 Liability of
Issuer Cash Manager:
(a)
The Issuer Cash
Manager shall indemnify each of the Master Issuer
and the Issuer Security Trustee on demand for any loss,
liability,
claim, expense or damage suffered or incurred by it in respect
of
the negligence, bad faith or wilful default of the Issuer Cash
Manager in carrying out its functions as Issuer Cash Manager
under, or as a result of a breach by the Issuer Cash Manager
of,
the terms and provisions of this Agreement or such other
Transaction Documents to which the Issuer Cash Manager is a
party
(in its capacity as such) in relation to such functions.
(b)
For the
avoidance of doubt, the Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or
damage
suffered or incurred by the Master Issuer or the Issuer
Security
Trustee and/or any other person as a result of the proper
performance of the Issuer Cash Management Services (as defined
in
Clause 3.1 (General)) by the Issuer Cash Manager save to the
extent that such loss, liability, claim, expense or damage is
suffered or incurred as a result of any negligence, bad faith
or
wilful default of the Issuer Cash Manager under, or as a result
of
a breach by the Issuer Cash Manager of, the terms and
provisions
of this Agreement or any of the other Transaction Documents to
which the Issuer Cash Manager is a party (in its capacity as
such)
in relation to such functions.
4.
Payments, Accounts, Ledgers
4.1 Issuer Bank
Accounts: The Issuer Cash Manager hereby confirms that the
Issuer
Bank Accounts have been established on or before the date
hereof
and that
the mandates in the agreed form will apply thereto at the
Funding 2
Programme Date. The Issuer Cash Manager undertakes (to the
extent to
which the same is within its control in its capacity as Issuer
Cash
Manager) that at the Funding 2 Programme Date the Issuer Bank
Accounts
will be operative and that the Issuer Cash Manager will not
knowingly
create or permit to subsist any Security Interest in relation
to the
Issuer Bank Accounts other than as created under or permitted
pursuant
to the Issuer Deed of Charge.
4.2 Issuer
Ledgers:
(a) The Issuer Cash Manager
shall open and maintain in the books of
the Master Issuer the following ledgers:
(i) the Issuer
Revenue Ledger, which shall record all Issuer
Revenue Receipts standing to the credit of the Issuer
Transaction Accounts from time to time and a sub-ledger in
respect of each Series and Class of Issuer Notes which shall
record interest received in respect of the Loan Tranches
funded by each such Series and Class of Issuer Notes;
(ii) the Issuer
Principal Ledger, which shall record all Issuer
Principal Receipts standing to the credit of the Issuer
Transaction Accounts from time to time and a sub-ledger in
respect of each Series and Class of
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Issuer Notes which shall record principal repayments in
respect of the Loan Tranche funded by each such Series and
Class of Issuer Notes; and
(iii) the Issuer Reserve Ledger, which shall record the amount
credited to the Issuer Reserve Fund from time to time and
subsequent withdrawals and deposits in respect of the Issuer
Reserve Fund; and
(iv) the Issuer Swap
Collateral Ledger, (which shall comprise of
such sub-ledgers as the Issuer Cash Manager considers
appropriate) to record all payments, transfers and receipts
in connection with Swap Collateral, including, without
limitation:
(A) the receipt
of any Swap Collateral by the Master
Issuer from the Issuer Swap Providers;
(B) the receipt
of any income or distributions in respect
of such Swap Collateral;
(C) the payment
or transfer of all, or any part of, such
Swap Collateral to the relevant Issuer Swap Provider;
and
(D) the payment
or transfer of all, or any part of, such
Swap Collateral to the relevant Issuer Transaction
Accounts,
provided that the Issuer Swap Collateral Ledger (and
sub-ledgers) shall only be established in the event that any
Issuer Swap Provider pays or transfers Swap Collateral to
the Master Issuer in accordance with the relevant Issuer
Swap Agreement; and
(v) the Issuer
Note Ledger, which shall be divided into
segregated sub-ledgers each of which shall record payments
made under each Series and Class of Issuer Notes (each of
which shall be further divided into sub-ledgers to record
payments of interest and fees and repayments of principal
made under the applicable Series and Class of Issuer Notes).
(b)
The Issuer Cash
Manager shall make credits and debits to the
Issuer Ledgers in accordance with the provisions of paragraphs
5,
6, 7, 8, 10 and 11 of Schedule 2 hereto.
4.3
Payments:
(a)
The Issuer Cash
Manager shall procure that the following amounts
payable to the Master Issuer are paid into the Issuer
Transaction
Accounts:
(i) all Issuer
Revenue Receipts;
(ii) all Issuer
Principal Receipts;
(iii) all amounts (excluding Swap Collateral that is to be
credited to the Issuer Swap Collateral Accounts in
accordance with Clause 4.7)
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received by the Master Issuer pursuant to the Issuer Swap
Agreements; and
(iv) any other amounts
whatsoever received by or on behalf of the
Master Issuer on or after the Funding 2 Programme Date,
and the Issuer Cash Manager shall procure that all investment
proceeds from Authorised Investments purchased from amounts
standing to the credit of the Issuer Transaction Accounts or
the
Issuer GIC Account are credited to each such account. All
amounts
received by the Master Issuer denominated in (i) Sterling shall
be
paid into the Issuer Sterling Account, (ii) in US Dollars shall
be
paid
into the Issuer Dollar Account; and (iii) in Euro shall be
paid into the Issuer Euro Account, or in such other manner that
the Issuer Cash Manager, the Issuer Security Trustee and the
Master Issuer may agree.
(b) The Issuer Cash Manager
shall procure that all transfers and
withdrawals of amounts standing to the credit of the Issuer
Bank
Accounts and the Issuer Swap Collateral Accounts shall be made
in
accordance with the provisions of the Issuer Bank Account
Agreement, the Issuer Trust Deed, the Issuer Swap Agreements
(in
the case of transfers and withdrawals from the Issuer Swap
Collateral Accounts) and the Issuer Deed of Charge.
(c) Each of the payments into
the Issuer Transaction Accounts referred
to in Clause 4.3(a) shall be made forthwith upon receipt by the
Master Issuer or the Issuer Cash Manager of the amount in
question.
(d)
For the
avoidance of doubt, as soon as reasonably practicable
after becoming aware of the same, the Issuer Cash Manager may,
and
shall, withdraw Cash from the Issuer Bank Accounts and Issuer
Swap
Collateral Cash Accounts, if, and to the extent that, such Cash
was credited thereto in error and shall use its reasonable
endeavours to ensure that such Cash is applied correctly
thereafter.
(e)
The Issuer Cash
Manager shall promptly notify each of the Master
Issuer and the Issuer Security Trustee of any additional
account
or sub-account which supplements or replaces any account or
sub-account specifically referred to in the definition of the
"Issuer Bank Account" in the Issuer Master Definitions
Schedule.
(f)
Each of the
Issuer Cash Manager and the Master Issuer undertakes
that, so far as it is able to procure the same, the Issuer Bank
Accounts and all instructions and the mandates in relation
thereto
will continue to be operative and will not, save as permitted
pursuant to the Issuer Bank Account Agreement, be changed
without
the prior written consent of the Issuer Security Trustee (such
consent not to be unreasonably withheld or delayed). For the
avoidance of doubt, the Issuer Cash Manager may change the
authorised signatories in respect of such instructions or
mandates
relating to the Master Issuer, without the prior written
consent
of the Issuer Security Trustee, in accordance with the terms of
the Issuer Bank Account Agreement.
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4.4
Withdrawals:
(a)
The Issuer Cash
Manager may make withdrawals on behalf of the
Master Issuer from the Issuer Bank Accounts (but only until
receipt of a copy of an Issuer Enforcement Notice served by the
Note Trustee on the Master Issuer) and the Issuer Swap
Collateral
Accounts as permitted by this Agreement, the Issuer Trust Deed,
the Issuer Bank Account Agreement, the Issuer Swap Agreements
(in
the case of withdrawals from the Issuer Swap Collateral
Accounts)
and the Issuer Deed of Charge, but shall not in carrying out
its
functions as Issuer Cash Manager under this Agreement otherwise
make withdrawals from the Issuer Bank Accounts and the Issuer
Swap
Collateral Accounts.
(b)
Upon receipt of
such an Issuer Enforcement Notice, no amount shall
be withdrawn from any Issuer Transaction Account by the Issuer
Cash Manager without the prior written consent of the Issuer
Security Trustee.
4.5 Cash
Management: In administering the Issuer Bank Accounts on behalf
of
the Master
Issuer and the Issuer Security Trustee, the Issuer Cash
Manager
shall comply with the provisions of Schedule 2 prior to receipt
by the
Issuer Cash Manager of a copy of any Issuer Enforcement Notice
served on
the Master Issuer. Following service of an Issuer Enforcement
Notice,
the Issuer Security Trustee or any Receiver appointed by the
Issuer
Security Trustee will administer the Issuer Bank Accounts in
accordance
with the terms of the Issuer Deed of Charge and, in the case
of amounts
standing to the credit of the Issuer Swap Collateral
Accounts,
in accordance with the Issuer Swap Agreement.
4.6 Termination:
If on or prior to the date of the earlier of (i) repayment
in full of
a Series and Class of Issuer Notes or (ii) the service of an
Issuer
Enforcement Notice, any of the Issuer Swap Agreements related
to
such
Series and Class of Issuer Notes are terminated, the Issuer
Cash
Manager
(on behalf of the Master Issuer and the Issuer Security
Trustee)
shall
purchase a replacement hedge, as applicable, in respect of the
relevant
Series of Issuer Notes in each case on terms acceptable to the
Rating
Agencies, the Master Issuer and the Issuer Security Trustee and
with a
swap provider that the Rating Agencies have previously
confirmed
in writing
to the Master Issuer and the Issuer Security Trustee will not
cause the
then-current ratings of the Issuer Notes to be downgraded,
withdrawn
or qualified. The Master Issuer may apply any early
termination payment received from, as appropriate, the relevant
Issuer
Swap
Provider for such purpose.
4.7 Swap
Collateral:
(a)
In the event
that pursuant to the terms of an Issuer Swap
Agreement an Issuer Swap Provider pays or transfers Swap
Collateral to the Master Issuer, the Issuer Cash Manager shall:
(i) if not
already created, create the Issuer Swap Collateral
Ledger in the books of the Master Issuer so as to record the
amount and type of such Swap Collateral and identify the
relevant Issuer Swap Agreement in respect of which it has
been posted;
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(ii) upon receipt of
such Swap Collateral, credit it to and
record the relevant details in the Swap Collateral Ledger;
(iii) to the extent that such Swap Collateral is in the form of
Cash, pay it into the relevant Issuer Swap Collateral Cash
Account; and
(iv) to the extent
that such Swap Collateral is in the form of
securities, arrange for it to be credited to the relevant
Issuer Swap Collateral Securities Account.
(b)
Any such Swap
Collateral shall not form part of the Issuer
Available Revenue
Receipts or the Issuer Available Principal
Receipts provided that if the terms of the relevant Issuer Swap
Agreement permit such Swap Collateral to be applied in or
towards
satisfaction of the relevant Issuer Swap Provider's obligations
under the relevant Issuer Swap Agreement, and in the event that
such Swap Collateral is to be so applied, the Issuer Cash
Manager
shall:
(i) where the
relevant Swap Collateral is in the form of Cash,
transfer the relevant amount of Cash from the relevant
Issuer Swap Collateral Cash Account to the relevant Issuer
Transaction Account; and/or
(ii) where the
relevant Swap Collateral is in the form of
securities, realise the Swap Collateral and pay the amount
of the net proceeds into the relevant Issuer Transaction
Account,
and, in each case, make the appropriate debits and credits to
the
Issuer Swap Collateral Ledger. Swap Collateral will form part
of
the Issuer Available Revenue Receipts on its transfer or
payment
into the relevant Issuer Transaction Account in accordance with
this Clause 4.7(b).
(c)
To the extent
that pursuant to the terms of the relevant Issuer
Swap Agreement Swap Collateral is to be transferred or paid to
the
relevant Issuer Swap Provider, the Issuer Cash Manager shall:
(i) where the
relevant Swap Collateral is in the form of Cash,
pay the relevant amount of Cash out of the relevant Swap
Collateral Cash Account to the Issuer Swap Provider; and/or
(ii) where the
relevant Swap Collateral is in the form of
securities, transfer and deliver the Swap Collateral to the
Issuer Swap Provider,
and, in each case, debit the Issuer Swap Collateral Ledger as
appropriate.
(d)
The terms of
this Clause 4.7 shall prevail if and to the extent
that they are inconsistent with the other paragraphs of this
Clause 4.
4.8 Notification
to Issuer Swap Providers: As soon as practicable following
the
notification to the Note Trustee and the Noteholders of an
early
redemption
of a Series and Class of Issuer Notes in accordance with
Conditions
5(D), (E) or (F) of such Issuer Notes, the Issuer Cash
Manager
shall notify, as soon as is reasonably practicable, the
relevant
Issuer
Swap Providers (being the Issuer Swap Providers who have
entered
into swap
transactions with the Issuer relating to such Issuer Notes) of
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such
redemption.
4.9 Spot Rate
Conversions: In the event that any payment is to be made from
the Issuer
Available Revenue Receipts or the Issuer Available Principal
Receipts
by the Master Issuer under the Issuer Priority of Payments and
the Issuer
Available Revenue Receipts or the Issuer Available Principal
Receipts,
as applicable, do not comprise a sufficient amount in the
relevant
currency in which such payment is to be made, the Issuer Cash
Manager
shall arrange for any remaining amounts comprised in the Issuer
Available
Revenue Receipts or the Issuer Available Principal Receipts,
as
applicable, and available to be utilised for such payment and to
be
converted
(by such person as the Issuer Cash Manager may reasonably
select)
into such currency at the then prevailing spot rate of
exchange.
5. No
Liability
Save as
otherwise provided in this Agreement, the Issuer Cash Manager
shall have
no liability for the obligations of either the Issuer
Security
Trustee or the Master Issuer under any of the Transaction
Documents
or otherwise and nothing herein shall constitute a guarantee,
or similar
obligation, by the Issuer Cash Manager of either the Issuer
Security
Trustee or the Master Issuer in respect of any of them.
6. Costs
and Expenses
6.1 Subject to
and in accordance with the Issuer Pre-Enforcement Revenue
Priority
of Payments or, as the case may be, the Issuer Post-Enforcement
Priority
of Payments, the Master Issuer will on each Monthly Payment
Date
reimburse the Issuer Cash Manager for all out-of-pocket costs,
expenses
and charges (together with any amounts in respect of
Irrecoverabl