DRAFT 2: 11.03.03
SEVENTH ISSUER CASH MANAGEMENT AGREEMENT
DATED {circle}, 2003
ABBEY NATIONAL PLC
(AS SEVENTH ISSUER CASH MANAGER)
AND
XXXXXX FINANCING (NO. 7) PLC
(THE SEVENTH ISSUER)
AND
THE BANK OF NEW YORK
(THE SEVENTH ISSUER SECURITY TRUSTEE)
XXXXX & OVERY
London
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation..........................................1
2. Appointment of Seventh Issuer Cash Manager..............................2
3. The Seventh Issuer Cash Management Services.............................2
4. Payments, Accounts, Ledgers.............................................3
5. Payments under Seventh Issuer Currency Swaps and Termination of Seventh
Issuer Currency Swaps...................................................5
6. No Liability............................................................6
7. Costs and Expenses......................................................6
8. Information.............................................................6
9. Remuneration............................................................8
10. Covenants of Seventh Issuer Cash Manager................................8
11. Seventh Issuer Cash Management Services Non-Exclusive...................9
12. Termination.............................................................9
13. Further Assurance......................................................12
14. Miscellaneous..........................................................12
15. Confidentiality........................................................13
16. Notices................................................................14
17. Variation and Waiver...................................................15
18. No Partnership.........................................................15
19. Assignment.............................................................15
20. Exclusion of Third Party Rights........................................15
21. Counterparts...........................................................15
22. Governing Law..........................................................15
SCHEDULE
1. The Cash Management Services...........................................16
2. Cash Management and Maintenance of Ledgers.............................18
3. Form of Seventh Issuer Quarterly Report................................25
Signatories..................................................................28
THIS SEVENTH ISSUER CASH MANAGEMENT AGREEMENT is made on {circle} March, 2003
BETWEEN:
(1) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House,
0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX in its capacity as cash
manager (the SEVENTH ISSUER CASH MANAGER, which expression shall include
such other person as may from time to time be appointed as cash manager
pursuant to this Agreement);
(2) XXXXXX FINANCING (NO. 7) PLC (registered number 4645659) a public 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 (the SEVENTH ISSUER); and
(3) THE BANK OF NEW YORK whose principal office is at Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX in its capacity as trustee (the SEVENTH ISSUER SECURITY
TRUSTEE which expression shall include such company and all other persons
or companies for the time being acting as the trustee or trustees under
the Seventh Issuer Deed of Charge).
WHEREAS:
(A) On the Seventh Issuer Closing Date the Seventh Issuer will issue the
Seventh Issuer Notes. From the proceeds of the issue of the Seventh
Issuer Notes, the Seventh Issuer shall make the Seventh Issuer Term
Advances to Funding.
(B) The Seventh Issuer Cash Manager is willing to provide cash management
services to the Seventh Issuer and the Seventh Issuer Security Trustee 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 Amended and Restated Master Definitions and Construction Schedule and
the Seventh Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx
and May on {circle} March, 2003 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
are expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule and the Seventh Issuer 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 the
Amended and Restated Master Definitions and Construction Schedule and
Clause 2 of the Seventh Issuer Master Definitions and Construction
Schedule. In the event of a conflict between the Amended and Restated
Master Definitions and Construction Schedule and the Seventh Issuer
Master Definitions and Construction Schedule, the Seventh Issuer Master
Definitions and Construction Schedule shall prevail.
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2. APPOINTMENT OF SEVENTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to Clause 12, the Seventh Issuer and the
Seventh Issuer Security Trustee (according to their respective estates
and interests) each hereby appoints the Seventh Issuer Cash Manager as
its lawful agent to provide the Seventh Issuer Cash Management Services
set out in this Agreement, including in relation to the Seventh Issuer
Notes to be issued by the Seventh Issuer. The Seventh Issuer Cash
Manager in each case hereby accepts such appointment on the terms 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, save as expressly provided elsewhere in this Agreement,
nothing herein shall be construed so as to give the Seventh 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 SEVENTH ISSUER NOTES
The appointment pursuant to Clause 2.1 is conditional upon the issue of
the Seventh Issuer Notes and shall take effect upon and from the Seventh
Issuer Closing Date automatically without any further action on the part
of any person PROVIDED THAT if the issue of the Seventh Issuer Notes has
not occurred by {circle} March, 2003, or such later date as the Seventh
Issuer and the Lead Manager may agree, this Agreement shall cease to be of
further effect.
3. THE SEVENTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Seventh Issuer Cash Manager shall provide the services set out in
this Agreement (including, without limitation, the Schedules) (the
SEVENTH ISSUER CASH MANAGEMENT SERVICES).
3.2 APPROVALS AND AUTHORISATIONS
The Seventh Issuer Cash Manager shall maintain, or procure the
maintenance of, the approvals, authorisations, consents and licences
required in connection with the business of the Seventh Issuer and shall
prepare and submit, or procure the preparation and submission of, on
behalf of the Seventh 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 Seventh Issuer and shall,
so far as it reasonably can do so, perform the Seventh 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 Seventh Issuer Cash Management Services shall include procuring (so
far as the Seventh Issuer Cash Manager, using its reasonable endeavours,
is able so to do) compliance by the Seventh Issuer with all applicable
legal requirements and with the terms of the Seventh Issuer Transaction
Documents, PROVIDED ALWAYS THAT the Seventh Issuer Cash Manager shall not
lend or provide any sum to the Seventh Issuer and that the Seventh Issuer
Cash Manager shall have no liability whatsoever to the Seventh Issuer,
the Seventh Issuer Security
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Trustee or any other person for any failure by the Seventh Issuer to make
any payment due by any of them under any of the Seventh Issuer
Transaction Documents (other than to the extent arising from any failure
by the Seventh Issuer Cash Manager to perform any of its obligations
under any of the Transaction Documents).
3.4 LIABILITY OF SEVENTH ISSUER CASH MANAGER
(a) The Seventh Issuer Cash Manager shall indemnify each of the
Seventh Issuer and the Seventh Issuer Security Trustee on demand
on an after Tax basis 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 Seventh Issuer Cash Manager in
carrying out its functions as Seventh Issuer Cash Manager under,
or as a result of a breach by the Seventh Issuer Cash Manager of,
the terms and provisions of this Agreement or such other
Transaction Documents to which the Seventh Issuer Cash Manager is
a party (in its capacity as such) in relation to such functions.
(b) For the avoidance of doubt, the Seventh Issuer Cash Manager shall
not be liable in respect of any loss, liability, claim, expense or
damage suffered or incurred by the Seventh Issuer or the Seventh
Issuer Security Trustee and/or any other person as a result of the
proper performance of the Seventh Issuer Cash Management Services
by the Seventh 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
Seventh Issuer Cash Manager under, or as a result of a breach by
the Seventh Issuer Cash Manager of, the terms and provisions of
this Agreement or any of the other Transaction Documents to which
the Seventh Issuer Cash Manager is a party (in its capacity as
such) in relation to such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 SEVENTH ISSUER BANK ACCOUNT
(a) The Seventh Issuer Cash Manager hereby confirms that the Seventh
Issuer Transaction Accounts have been established on or before the
date hereof and that mandates in the agreed form will apply
thereto at the Seventh Issuer Closing Date. The Seventh Issuer
Cash Manager undertakes (to the extent to which the same is within
its control in its capacity as Seventh Issuer Cash Manager) that
at the Seventh Issuer Closing Date the Seventh Issuer Transaction
Accounts will be operative and that the Seventh Issuer Cash
Manager will not knowingly create or permit to subsist any
Security Interest in relation to the Seventh Issuer Transaction
Accounts other than as created under or permitted pursuant to the
Seventh Issuer Deed of Charge.
(b) The Seventh Issuer Cash Manager shall procure that the following
amounts are paid into the Seventh Issuer Transaction Accounts:
(i) all amounts of interest paid on the Seventh Issuer Term
Advances;
(ii) all repayments of principal on the Seventh Issuer Term
Advances;
(iii) all amounts received by the Seventh Issuer pursuant to the
Dollar Currency Swap Agreements and the Euro Currency Swap
Agreements; and
(iv) any other amounts whatsoever received by or on behalf of the
Seventh Issuer after the Seventh Issuer Closing Date,
and the Seventh Issuer Cash Manager shall procure that all interest
earned on the Seventh Issuer Transaction Accounts and all investment
proceeds from Authorised Investments
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purchased from amounts standing to the credit of the Seventh Issuer Bank
Accounts are credited to such account. All amounts received by the
Seventh Issuer denominated (i) in Sterling shall be paid into the Seventh
Issuer Sterling Account; (ii) in Dollars shall be paid into the Seventh
Issuer Dollar Account; and (iii) in Euro shall be paid into the Seventh
Issuer Euro Account.
(c) Each of the payments into the Seventh Issuer Transaction Accounts referred
to in Clause shall be made forthwith upon receipt by the Seventh Issuer or
the Seventh 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 Seventh Issuer Cash Manager may, and
shall, withdraw Cash from the Seventh Issuer Transaction 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 Seventh Issuer Cash Manager shall promptly notify each of the Seventh
Issuer and the Seventh Issuer Security Trustee of any additional account
which supplements or replaces any account specifically referred to in the
definition of the "Seventh Issuer Transaction Accounts" in the Seventh
Issuer Master Definitions and Construction Schedule.
(f) Each of the Seventh Issuer Cash Manager and the Seventh Issuer undertakes
that, so far as it is able to procure the same, the Seventh Issuer
Transaction Accounts and all instructions and mandates in relation thereto
will continue to be operative and will not, save as permitted pursuant to
the Seventh Issuer Bank Account Agreement, be changed without prior
written consent of the Seventh Issuer Security Trustee (such consent not
to be unreasonably withheld or delayed). For the avoidance of doubt, the
Seventh Issuer Cash Manager may change the authorised signatories in
respect of any instructions or mandates, without the prior written consent
of the Seventh Issuer Security Trustee, in accordance with the terms of
the Seventh Issuer Bank Account Agreement.
4.2 WITHDRAWALS
(a) The Seventh Issuer Cash Manager may make withdrawals on behalf of the
Seventh Issuer from the Seventh Issuer Transaction Accounts, but only
until receipt of a copy of a Seventh Issuer Note Enforcement Notice served
by the Seventh Issuer Security Trustee on the Seventh Issuer, as permitted
by this Agreement but shall not in carrying out its functions as Seventh
Issuer Cash Manager under this Agreement otherwise make withdrawals from
the Seventh Issuer Transaction Accounts.
(b) Upon receipt of such a Seventh Issuer Note Enforcement Notice, no amount
shall be withdrawn from the Seventh Issuer Transaction Accounts by the
Seventh Issuer Cash Manager without the prior written consent of the
Seventh Issuer Security Trustee.
4.3 CASH MANAGEMENT
In administering the Seventh Issuer Transaction Accounts on behalf of the
Seventh Issuer and the Seventh Issuer Security Trustee, the Seventh Issuer
Cash Manager shall comply with the provisions of Schedule 2 prior to
receipt by the Seventh Issuer Cash Manager of a copy of any Seventh Issuer
Note Enforcement Notice served on the Seventh Issuer. Following service of
a Seventh Issuer Note Enforcement Notice, the Seventh Issuer Security
Trustee or any Receiver appointed by the Seventh Issuer Security Trustee
will administer the Seventh Issuer Transaction Accounts in accordance with
the terms of the Seventh Issuer Deed of Charge.
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5. PAYMENTS UNDER SEVENTH ISSUER CURRENCY SWAPS AND TERMINATION OF SEVENTH
ISSUER CURRENCY SWAPS
5.1 Subject to the order of priorities of payment set out in this Seventh
Issuer Cash Management Agreement or, as the case may be, the Seventh
Issuer Deed of Charge, on each Interest Payment Date, the Seventh Issuer,
or the Seventh Issuer Cash Manager on its behalf, will pay amounts
received in respect of the Seventh Issuer Series 1 Term Advances (after
making payments ranking higher in the order or priority of payments) to
the relevant Dollar Currency Swap Provider. Amounts received from the
relevant Dollar Currency Swap Provider will be applied to pay amounts due
to the holders of the relevant classes of Series 1 Seventh Issuer Notes
in accordance with the Seventh Issuer Pre-Enforcement Priority of
Payments or, as the case may be, the Seventh Issuer Post-Enforcement
Priority of Payments.
5.2 Subject to the order or priorities of payment set out in this Seventh
Issuer Cash Management Agreement or, as the case may be, the Seventh
Issuer Deed of Charge, on each Interest Payment Date, the Seventh Issuer,
or the Seventh Issuer Cash Manager on its behalf, will pay amounts
received in respect of the Seventh Issuer Series 2 Term Advances (after
making payments ranking higher in the order or priority of payments) to
the relevant Dollar Currency Swap Provider. Amounts received from the
relevant Dollar Currency Swap Provider will be applied to pay amounts due
to the holders of the relevant classes of Series 2 Seventh Issuer Notes
in accordance with the Seventh Issuer Pre-Enforcement Priority of
Payments or, as the case may be, the Seventh Issuer Post-Enforcement
Priority of Payments.
5.3 Subject to the order of priorities of payment set out in this Seventh
Issuer Cash Management Agreement or, as the case may be, the Seventh
Issuer Deed of Charge, on each Interest Payment Date, the Seventh Issuer,
or the Seventh Issuer Cash Manager on its behalf, will pay amounts
received in respect of the Seventh Issuer Series 3 Term AAA Advance, the
Seventh Issuer Series 4 Term AA Advance and the Seventh Issuer Series 4
Term A Advance (after making payments ranking higher in the order or
priority of payments) to the Euro Currency Swap Provider. Amounts
received from the Euro Currency Swap Provider will be respectively
applied to pay amounts due to the holders of the Series 3 Class A Seventh
Issuer Notes, the Seventh Issuer Series 4 Term AA Advance and the Seventh
Issuer Series 4 Term A Advance in accordance with the Seventh Issuer Pre-
Enforcement Priority of Payments or, as the case may be, the Seventh
Issuer Post-Enforcement Priority of Payments.
5.4 If on or prior to the date of the earlier of (i) repayment in full of the
Seventh Issuer Notes or (ii) the service of a Seventh Issuer Note
Enforcement Notice, any of the Dollar Currency Swaps or Euro Currency
Swaps is terminated, the Seventh Issuer Cash Manager (on behalf of the
Seventh Issuer and the Seventh Issuer Security Trustee) shall purchase a
replacement hedge in respect of the relevant class of Seventh Issuer
Notes, against fluctuations in, as appropriate, (a) the relevant currency
swap rate between Dollars and Sterling or the possible variance between
LIBOR for three-month Sterling deposits and (i) LIBOR for one-month
Dollar deposits in relation to the Series 1 Class A Seventh Issuer Notes
and/or (ii) LIBOR for three-month Dollar deposits in relation to the
Series 1 Class B Seventh Issuer Notes, the Series 1 Class M Seventh
Issuer Notes, the Series 2 Class A Seventh Issuer Notes, the Series 2
Class B Seventh Issuer Notes, the Series 2 Class M Seventh Issuer Notes
and the Series 3 Class A Seventh Issuer Notes or (b) the relevant
currency swap rate between Euro and Sterling or the possible variance
between LIBOR for three-month Sterling deposits and EURIBOR for three-
month Euro deposits in relation to the Series 4 Class A1 Seventh Issuer
Notes, the Series 4 Class B Seventh Issuer Notes and the Series 4 Class M
Issuer Notes and, in each case, on terms acceptable to the Rating
Agencies and the Seventh Issuer and the Seventh Issuer Security Trustee
and with a swap provider whom the Rating Agencies have previously
confirmed in writing to the Seventh Issuer and the Seventh Issuer
Security Trustee
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will not cause the then current ratings of the Seventh Issuer Notes to be
downgraded. The Seventh Issuer may apply any early termination payment
received from the relevant Dollar Currency Swap Provider or Euro Currency Swap
Provider, for such purpose.
5.5 If the Seventh Issuer receives a Refund Payment (as defined in SEVENTH
ISSUER REVENUE RECEIPTS) then the Seventh Issuer, or the Seventh Issuer
Cash Manager on its behalf, will pay over an amount equal to such Refund
Payment to the relevant Seventh Issuer Swap Provider upon receipt.
6. NO LIABILITY
Save as otherwise provided in this Agreement, the Seventh Issuer Cash
Manager shall have no liability for the obligations of either the Seventh
Issuer Security Trustee or the Seventh Issuer under any of the
Transaction Documents or otherwise and nothing herein shall constitute a
guarantee, or similar obligation, by the Seventh Issuer Cash Manager of
either Funding, the Seventh Issuer Security Trustee or the Seventh Issuer
in respect of any of them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Seventh Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Seventh Issuer Post-
Enforcement Priority of Payments the Seventh Issuer will on each Interest
Payment Date reimburse the Seventh Issuer Cash Manager for all out-of-
pocket costs, expenses and charges (together with any amounts in respect
of Irrecoverable VAT due thereon) properly incurred by the Seventh Issuer
Cash Manager in the performance of the Seventh Issuer Cash Management
Services including any such costs, expenses or charges not reimbursed to
the Seventh Issuer Cash Manager on any previous Interest Payment Date and
the Seventh Issuer Cash Manager shall supply the Seventh Issuer with an
appropriate VAT invoice issued by the Seventh Issuer Cash Manager or, if
the Seventh Issuer Cash Manager has treated the relevant cost, expense or
charge as a disbursement for VAT purposes, by the person making the
supply.
8. INFORMATION
8.1 USE OF I.T. SYSTEMS
(a) The Seventh Issuer Cash Manager represents and warrants that at
the date hereof in respect of the software which is to be used by
the Seventh Issuer Cash Manager in providing the Seventh Issuer
Cash Management Services it has in place all necessary licences
and/or consents from the respective licensor or licensors (if any)
to use such software.
(b) The Seventh Issuer Cash Manager undertakes that it shall for the
duration of this Agreement, use reasonable endeavours to:
(i) ensure that the licences and/or consents referred to in
paragraph (a) are maintained in full force and effect; and
(ii) except in so far as it would breach any other of its legal
obligations, grant to any person to whom it may sub-contract
or delegate the performance of all or any of its powers and
obligations under this Agreement and/or to such person as
the Seventh Issuer elects as a substitute cash manager in
accordance with the terms of this Agreement a licence to use
any proprietary software together with any updates which may
be made thereto from time to time.
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(c) The Seventh Issuer Cash Manager shall use reasonable endeavours to
maintain in working order the information technology systems used
by the Seventh Issuer Cash Manager in providing the Seventh Issuer
Cash Management Services.
(d) The Seventh Issuer Cash Manager shall pass to any person to whom
it may sub-contract or delegate the performance of all or any of
its powers and obligations under this Agreement and/or to such
person as the Seventh Issuer elects as a substitute cash manager
in accordance with the terms of this Agreement the benefit of any
warranties relating to the above software insofar as the same are
capable of assignment.
8.2 BANK ACCOUNT STATEMENTS
The Seventh Issuer Cash Manager shall take all reasonable steps to ensure
that it receives a monthly bank statement in relation to each of the
Seventh Issuer Bank Accounts and that it furnishes a copy of such
statements to the Seventh Issuer and the Seventh Issuer Security Trustee.
8.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Seventh Issuer Cash Manager shall
permit the Auditors of the Seventh Issuer and any other person nominated
by the Seventh Issuer Security Trustee, (to whom the Seventh Issuer Cash
Manager has no reasonable objection) at any time during normal office
hours upon reasonable notice to have access, or procure that such person
or persons are granted access, to all books of record and account
relating to the Seventh Issuer Cash Management Services provided by the
Seventh Issuer Cash Manager and related matters in accordance with this
Agreement.
8.4 STATUTORY OBLIGATIONS
The Seventh Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Seventh Issuer, to prepare or procure the preparation of
and file all reports, annual returns, financial statements, statutory
forms and other returns which the Seventh Issuer is required by law to
prepare and file. Subject to approval thereof by the directors of the
Seventh Issuer, the Seventh Issuer Cash Manager shall cause such accounts
to be audited by the Auditors and shall procure so far as it is able so
to do that the Auditors shall make a report thereon as required by law
and copies of all such documents shall be delivered to the Seventh Issuer
Security Trustee, the Seventh Issuer and the Rating Agencies as soon as
practicable after the end of each accounting reference period of the
Seventh Issuer.
8.5 INFORMATION COVENANTS
(a) The Seventh Issuer Cash Manager shall provide the Seventh Issuer,
the Seventh Issuer Security Trustee, the Seller and the Rating
Agencies quarterly with a report in, or substantially in, the form
set out in Schedule 3 in respect of the Seventh Issuer. Such
quarterly report shall be delivered to the Seventh Issuer, the
Seventh Issuer Security Trustee, the Seller and the Rating Agencies
by the last Business Day of the month in which the relevant Interest
Payment Date occurs.
(b) The Seventh Issuer Cash Manager shall provide, or procure the
provision of, to the Seventh Issuer, the Seventh Issuer Security
Trustee and the Rating Agencies copies of any annual returns or
financial statements referred to in Clause 8.4 as soon as reasonably
practicable after the preparation thereof.
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(c) The Seventh Issuer Cash Manager shall notify the Rating Agencies
in writing of the details of (i) any material amendment to the
Seventh Issuer Transaction Documents to which the Seventh Issuer
is a party; (ii) the occurrence of a Seventh Issuer Note Event of
Default; and (iii) any other information relating to the Seventh
Issuer Cash Manager as the Rating Agencies may reasonably request
in connection with its obligations under this Agreement, PROVIDED
THAT such request does not adversely interfere with the Seventh
Issuer Cash Manager's day-to-day provision of the Seventh Issuer
Cash Management Services under the other terms of this Agreement.
(d) The Seventh Issuer Cash Manager shall, at the request of the
Seventh Issuer Security Trustee, furnish the Seventh Issuer
Security Trustee and the Rating Agencies with such other
information relating to its business and financial condition as it
may be reasonable for the Seventh Issuer Security Trustee to
request in connection with this Agreement, PROVIDED THAT the
Seventh Issuer Security Trustee shall not make such a request more
than once every three months unless, in the belief of the Seventh
Issuer Security Trustee, a Seventh Issuer Intercompany Loan Event
of Default, Seventh Issuer Note Event of Default or Seventh Issuer
Cash Manager Termination Event (as defined in Clause ) shall have
occurred and is continuing or may reasonably be expected to occur
and PROVIDED FURTHER THAT such request does not adversely
interfere with the Seventh Issuer Cash Manager's day-to-day
provision of the Seventh Issuer Cash Management Services under the
other terms of this Agreement.
9. REMUNERATION
9.1 FEE PAYABLE
The Seventh Issuer shall pay to the Seventh Issuer Cash Manager for its
services hereunder a cash management fee which shall be agreed in writing
between the Seventh Issuer, the Seventh Issuer Security Trustee and the
Seventh Issuer Cash Manager from time to time.
9.2 PAYMENT OF FEE
The cash management fee referred to in Clause shall be paid to the
Seventh Issuer Cash Manager in arrear on each Interest Payment Date in
the manner contemplated by and in accordance with the provisions of the
Seventh Issuer Pre-Enforcement Revenue Priority of Payments or, as the
case may be, the Seventh Issuer Post-Enforcement Priority of Payments.
10. COVENANTS OF SEVENTH ISSUER CASH MANAGER
10.1 COVENANTS
The Seventh Issuer Cash Manager hereby covenants with and undertakes to
each of the Seventh Issuer and the Seventh Issuer Security Trustee that
without prejudice to any of its specific obligations hereunder:
(a) it will devote all due skill, care and diligence to the
performance of its obligations and the exercise of its discretions
hereunder;
(b) it will comply with any proper directions, orders and instructions
which the Seventh Issuer or the Seventh Issuer Security Trustee
may from time to time give to it in accordance with the provisions
of this Agreement and, in the event of any conflict, those of the
Seventh Issuer Security Trustee shall prevail;
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(c) it will use its reasonable endeavours to keep in force all
licences, approvals, authorisations and consents which may be
necessary in connection with the performance of the Seventh Issuer
Cash Management Services and prepare and submit all necessary
applications and requests for any further approval, authorisation,
consent or licence required in connection with the performance of
the Seventh Issuer Cash Management Services;
(d) save as otherwise agreed with the Seventh Issuer and the Seventh
Issuer Security Trustee, it will provide free of charge to the
Seventh Issuer during normal office hours office space,
facilities, equipment and staff sufficient to fulfil the
obligations of the Seventh Issuer under this Agreement;
(e) it will not knowingly fail to comply with any legal requirements
in the performance of the Seventh Issuer Cash Management Services;
(f) it will make all payments required to be made by it pursuant to
this Agreement on the due date for payment thereof for value on
such day without set-off (including, without limitation, in
respect of any fees owed to it) or counterclaim; and
(g) it will not without the prior written consent of the Seventh
Issuer Security Trustee amend or terminate any of the Seventh
Issuer Transaction Documents save in accordance with their terms.
10.2 DURATION OF COVENANTS
The covenants of the Seventh Issuer Cash Manager in Clause shall remain
in force until this Agreement is terminated but without prejudice to any
right or remedy of the Seventh Issuer and/or the Seventh Issuer Security
Trustee arising from breach of any such covenant prior to the date of
termination of this Agreement.
11. SEVENTH ISSUER CASH MANAGEMENT SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Seventh Issuer Cash Manager
from rendering or performing services similar to those provided for in
this Agreement to or for itself or other persons, firms or companies or
from carrying on business similar to or in competition with the business
of the Seventh Issuer or the Seventh Issuer Security Trustee.
12. TERMINATION
12.1 SEVENTH ISSUER CASH MANAGER TERMINATION EVENTS
If any of the following events (SEVENTH ISSUER CASH MANAGER TERMINATION
EVENTS) shall occur:
(a) default is made by the Seventh Issuer Cash Manager in the payment
on the due date of any payment due and payable by it under this
Agreement and such default continues unremedied for a period of
three London Business Days after the earlier of the Seventh Issuer
Cash Manager becoming aware of such default and receipt by the
Seventh Issuer Cash Manager of written notice from the Seventh
Issuer or the Seventh Issuer Security Trustee, as the case may be,
requiring the same to be remedied; or
(b) default is made by the Seventh Issuer Cash Manager in the
performance or observance of any of its other covenants and
obligations under this Agreement, which
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in the reasonable opinion of the Seventh Issuer Security Trustee
is materially prejudicial to the interests of the Seventh Issuer
Secured Creditors and such default continues unremedied for a
period of twenty days after the earlier of the Seventh Issuer
Cash Manager becoming aware of such default and receipt by the
Seventh Issuer Cash Manager of written notice from the Seventh
Issuer Security Trustee requiring the same to be remedied; or
(c) while the Seventh Issuer Cash Manager is the Seller, an Insolvency
Event occurs,
then the Seventh Issuer Security Trustee may at once or at any time
thereafter while such default continues by notice in writing to the
Seventh Issuer Cash Manager terminate its appointment as Seventh Issuer
Cash Manager under this Agreement with effect from a date (not earlier
than the date of the notice) specified in the notice.
12.2 RESIGNATION OF SEVENTH ISSUER CASH MANAGER
The appointment of the Seventh Issuer Cash Manager under this Agreement
may be terminated upon the expiry of not less than 12 months' notice of
termination given by the Seventh Issuer Cash Manager to the Seventh
Issuer and the Seventh Issuer Security Trustee PROVIDED THAT:
(a) the Seventh Issuer and the Seventh Issuer Security Trustee consent
in writing to such termination;
(b) a substitute cash manager shall be appointed, such appointment to
be effective not later than the date of such termination;
(c) such substitute cash manager has cash management experience and is
approved by the Seventh Issuer and the Seventh Issuer Security
Trustee;
(d) such substitute cash manager enters into an agreement
substantially on the same terms as the relevant provisions of this
Agreement or on such terms as are satisfactory to the Seventh
Issuer and the Seventh Issuer Security Trustee and the Seventh
Issuer Cash Manager shall not be released from its obligations
under the relevant provisions of this Agreement until such
substitute cash manager has entered into such new agreement and
the rights of the Seventh Issuer under such agreement are charged
in favour of the Seventh Issuer Security Trustee on terms
satisfactory to the Seventh Issuer Security Trustee; and
(e) the then current ratings (if any) of the Seventh Issuer Notes are
not adversely affected as a result thereof, unless otherwise
agreed by an Extraordinary Resolution (as defined in the Seventh
Issuer Trust Deed) of the holders of the Class A Seventh Issuer
Notes, the Class B Seventh Issuer Notes, the Class M Seventh
Issuer Notes and the Class C Seventh Issuer Notes.
12.3 EFFECT OF TERMINATION
(a) On and after termination of the appointment of the Seventh Issuer
Cash Manager under this Agreement pursuant to this Clause , all
authority and power of the Seventh Issuer Cash Manager under this
Agreement shall be terminated and be of no further effect and the
Seventh Issuer Cash Manager shall not thereafter hold itself out
in any way as the agent of the Seventh Issuer or the Seventh
Issuer Security Trustee pursuant to this Agreement.
10
(b) Upon termination of the appointment of the Seventh Issuer Cash
Manager under this Agreement pursuant to this Clause 12, the
Seventh Issuer Cash Manager shall:
(i) forthwith deliver (and in the meantime hold on trust for,
and to the order of, the Seventh Issuer or the Seventh
Issuer Security Trustee, as the case may be) to the Seventh
Issuer or the Seventh Issuer Security Trustee, as the case
may be or as it shall direct, all books of account, papers,
records, registers, correspondence and documents in its
possession or under its control relating to the affairs of
or belongings of the Seventh Issuer or the Seventh Issuer
Security Trustee, as the case may be, (if practicable, on
the date of receipt) any monies then held by the Seventh
Issuer Cash Manager on behalf of the Seventh Issuer, the
Seventh Issuer Security Trustee and any other assets of the
Seventh Issuer and the Seventh Issuer Security Trustee;
(ii) take such further action as the Seventh Issuer or the
Seventh Issuer Security Trustee, as the case may be, may
reasonably direct at the expense of the Seventh Issuer or
the Seventh Issuer Security Trustee, as the case may be
(including in relation to the appointment of a substitute
cash manager) provided that the Seventh Issuer Security
Trustee shall not be required to take or direct to be taken
such further action unless it has been indemnified to its
satisfaction;
(iii) provide all relevant information contained on computer
records in the form of magnetic tape, together with details
of the layout of the files encoded on such magnetic tapes;
and
(iv) co-operate and consult with and assist the Seventh Issuer or
the Seventh Issuer Security Trustee or its nominee, as the
case may be, (which shall, for the avoidance of doubt,
include any Receiver appointed by it) for the purposes of
explaining the file layouts and the format of the magnetic
tapes generally containing such computer records on the
computer system of the Seventh Issuer or the Seventh Issuer
Security Trustee or such nominee, as the case may be.
12.4 NOTICE OF EVENT OF DEFAULT
The Seventh Issuer Cash Manager shall deliver to the Seventh Issuer and
the Seventh Issuer Security Trustee as soon as reasonably practicable but
in any event within three Business Days of becoming aware thereof a
notice of any Seventh Issuer Cash Manager Termination Event or any
Seventh Issuer Note Event of Default or any event which with the giving
of notice or expiry of any grace period or certification, as specified in
such Seventh Issuer Cash Manager Termination Event or Seventh Issuer Note
Event of Default would constitute the same.
12.5 GENERAL PROVISIONS RELATING TO TERMINATION
(a) Termination of this Agreement or the appointment of the Seventh
Issuer Cash Manager under this Agreement shall be without
prejudice to the liabilities of the Seventh Issuer and the Seventh
Issuer Security Trustee to the Seventh Issuer Cash Manager or vice
versa incurred before the date of such termination. The Seventh
Issuer Cash Manager shall have no right of set-off or any lien in
respect of such amounts against amounts held by it on behalf of
the Seventh Issuer or the Seventh Issuer Security Trustee.
(b) This Agreement shall terminate at such time as the Seventh Issuer
Secured Obligations have been fully discharged.
11
(c) On termination of the appointment of the Seventh Issuer Cash
Manager under the provisions of this Clause 12, the Seventh Issuer
Cash Manager shall be entitled to receive all fees and other
monies accrued up to (but excluding) the date of termination but
shall not be entitled to any other or further compensation. The
Seventh Issuer shall pay such monies so receivable by the Seventh
Issuer Cash Manager in accordance with the Seventh Issuer Pre-
Enforcement Revenue Priority of Payments or, as the case may be,
the Seventh Issuer Post-Enforcement Priority of Payments, on the
dates on which they would otherwise have fallen due hereunder.
For the avoidance of doubt, such termination shall not affect the
Seventh Issuer Cash Manager's rights to receive payment of all
amounts (if any) due to it from the Seventh Issuer other than
under this Agreement.
(d) Any provision of this Agreement, which is stated to continue after
termination of the Agreement, shall remain in full force and
effect notwithstanding termination.
13. FURTHER ASSURANCE
13.1 CO-OPERATION, ETC
The parties hereto agree that they will co-operate fully to do all such
further acts and things and execute any further documents as may be
necessary or desirable to give full effect to the arrangements
contemplated by this Agreement.
13.2 POWERS OF ATTORNEY
Without prejudice to the generality of Clause 13.2, the Seventh Issuer and
the Seventh Issuer Security Trustee shall upon request by the Seventh
Issuer Cash Manager forthwith give to the Seventh Issuer Cash Manager such
further powers of attorney or other written authorisations, mandates or
instruments as are necessary to enable the Seventh Issuer Cash Manager to
perform the Seventh Issuer Cash Management Services.
13.3 CHANGE OF SEVENTH ISSUER SECURITY TRUSTEE
In the event that there is any change in the identity of the Seventh
Issuer Security Trustee or an additional Seventh Issuer Security Trustee
is appointed in accordance with the Seventh Issuer Deed of Charge, the
Seventh Issuer Cash Manager shall execute such documents with any other
parties to this Agreement and take such actions as such new Seventh
Issuer Security Trustee may reasonably require for the purposes of
vesting in such new Seventh Issuer Security Trustee the rights of the
Seventh Issuer Security Trustee under this Agreement and under the
Seventh Issuer Deed of Charge and releasing the retiring Seventh Issuer
Security Trustee from further obligations thereunder and while any of the
Seventh Issuer Notes remains outstanding shall give notice thereof to the
Rating Agencies.
13.4 NO OBLIGATION ON SEVENTH ISSUER SECURITY TRUSTEE
Nothing herein contained shall impose any obligation or liability on the
Seventh Issuer Security Trustee to assume or perform any of the
obligations of the Seventh Issuer or the Seventh Issuer Cash Manager
hereunder or render it liable for any breach thereof.
14. MISCELLANEOUS
14.1 NO SET-OFF
The Seventh Issuer Cash Manager agrees that it will not:
12
(a) set off or purport to set off any amount which either the Seventh
Issuer is or will become obliged to pay to it under this Agreement
against any amount from time to time standing to the credit of or
to be credited to the Seventh Issuer Bank Accounts; or
(b) make or exercise any claims or demands, any rights of counterclaim
or any other equities against or withhold payment of any and all
sums of money which may at any time and from time to time stand to
the credit of the Seventh Issuer Bank Accounts.
14.2 NO PETITION
The Seventh Issuer Cash Manager agrees that for so long as any Seventh
Issuer Notes are outstanding it will not petition or commence proceedings
for the administration or winding up of the Seventh Issuer or participate
in any ex parte proceedings with regard thereto.
14.3 NO RECOURSE
(a) In relation to all sums due and payable by the Seventh Issuer to
the Seventh Issuer Cash Manager, the Seventh Issuer Cash Manager
agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Seventh Issuer pursuant to the
provisions of the Seventh Issuer Transaction Documents.
(b) For the avoidance of doubt, the Seventh Issuer Security Trustee
shall not be liable to pay any amounts due under Clauses 7 and 9,
but without prejudice to the obligations of the Seventh Issuer, or
any Receiver appointed pursuant to the Seventh Issuer Deed of
Charge in respect of such amounts.
(c) Notwithstanding any other provisions of this Agreement, all
obligations to, and rights of, the Seventh Issuer Security Trustee
under or in connection with this Agreement (other than its
obligations under Clause 15) shall automatically terminate upon
the discharge in full of all Seventh Issuer Secured Obligations,
PROVIDED THAT this shall be without prejudice to any claims in
respect of such obligations and rights arising on or prior to such
date.
15. CONFIDENTIALITY
During the continuance of this Agreement or after its termination, each
of the Seventh Issuer, the Seventh Issuer Cash Manager and the Seventh
Issuer Security Trustee shall use its best endeavours not to disclose to
any person, firm or company whatsoever any information relating to the
business, finances or other matters of a confidential nature of any other
party hereto of which it may exclusively by virtue of being party to the
Transaction Documents have become possessed and shall use all reasonable
endeavours to prevent any such disclosure as aforesaid, PROVIDED HOWEVER
that the provisions of this Clause 15 shall not apply:
(a) to any information already known to the recipient otherwise than
as a result of entering into any of the Transaction Documents;
(b) to any information subsequently received by the recipient which it
would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge otherwise
than as a result of the conduct of the recipient;
13
(d) to any extent that the recipient is required to disclose the same
pursuant to any law or order of any court or pursuant to any
direction, request or requirement (whether or not having the force
of law) of any central bank or any governmental or other authority
(including, without limitation, any official bank examiners or
regulators or stock exchange);
(e) to the extent that the recipient needs to disclose the same for
determining the existence of, or declaring, a Seventh Issuer Note
Event of Default, or a Seventh Issuer Cash Manager Termination
Event, the protection or enforcement of any of its rights under
any of the Seventh Issuer Transaction Documents or in connection
herewith or therewith or for the purpose of discharging, in such
manner as it thinks fit, its duties under or in connection with
such agreements in each case to such persons as require to be
informed of such information for such purposes; or
(f) in relation to any information disclosed to the professional
advisers of the recipient or (in connection with a prospective
rating of any debt to be issued by the Seventh Issuer or any New
Issuer) to any credit rating agency or any prospective new cash
manager or Seventh Issuer Security Trustee.
16. 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 17.00 hours on a
Business Day or on the next Business Day if delivered thereafter or on a
day which is not a Business Day 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 Seventh Issuer Cash Manager, to Abbey National
plc at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx,
Xxxxxx XX0 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Company Secretary with a copy to Abbey National
plc, c/o Abbey House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxxx XX0 0XX (facsimile number (00) 0000 000 000) for the
attention of the Securitisation Team,Retail Customer Risk and
Decisioning;
(b) in the case of the Seventh Issuer, to Xxxxxx Financing (No. 7) PLC
at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx,
XX0 0XX (facsimile number (00) 00 0000 0000) for the attention of
the Company Secretary with a copy to Abbey National plc c/o Abbey
House (AAM 126), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX
(facsimile number (00) 0000 000 000) for the attention of
Securitisation Team, Retail Customer Risk and Decisioning; and
(c) in the case of the Seventh Issuer Security Trustee, to The Bank of
Xxx Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number 00
44 20 7964 6061/6399) 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 16.
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17. VARIATION AND WAIVER
No variation or waiver of this Agreement shall be effective unless it is
in writing and signed by (or by some person duly authorised by) each of
the parties. No single or partial exercise of, or failure or delay in
exercising, any right under this Agreement shall constitute a waiver or
preclude any other or further exercise of that or any other right.
18. NO PARTNERSHIP
It is hereby acknowledged and agreed by the parties that nothing in this
Agreement shall be construed as giving rise to any partnership between
any of the parties.
19 ASSIGNMENT
19.1 ASSIGNMENT BY THE SEVENTH ISSUER
The Seventh Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of
each of the Seventh Issuer Security Trustee and the Seventh Issuer Cash
Manager, except that the Seventh Issuer may assign its respective rights
hereunder without such consent pursuant to the Seventh Issuer Deed of
Charge.
19.2 NO ASSIGNMENT BY SEVENTH ISSUER CASH MANAGER
The Seventh Issuer Cash Manager may not assign or transfer any of its
rights and obligations under this Agreement without the prior written
consent of the Seventh Issuer and the Seventh Issuer Security Trustee,
such consent not to be unreasonably withheld or delayed.
20. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of Third
Parties) Xxx 0000, by any person who is not a party to this Agreement.
21. COUNTERPARTS
The Agreement may be executed manually or by facsimile, in one or more
counterparts.
22. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed the
day and year first before written.
15
SCHEDULE 1
THE CASH MANAGEMENT SERVICES
The Seventh Issuer Cash Manager shall:
(a) operate the Seventh Issuer Bank Accounts and ensure that payments are
made into and from such accounts in accordance with this Agreement, the
Seventh Issuer Deed of Charge, the Seventh Issuer Bank Account Agreement
and any other relevant Seventh Issuer Transaction Document, PROVIDED
HOWEVER THAT nothing herein shall require the Seventh Issuer Cash Manager
to make funds available to the Seventh Issuer to enable such payments to
be made other than as expressly required by the provisions of this
Agreement;
(b) keep records for all taxation purposes (including, without limitation,
VAT);
(c) subject to any applicable law assist the Auditors of the Seventh Issuer
and provide such information to them as they may reasonably request for
the purpose of carrying out their duties as auditors;
(d) make all filings, give all notices and make all registrations and other
notifications required in the day-to-day operation of the business of the
Seventh Issuer or required to be given by the Seventh Issuer pursuant to
the Seventh Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Seventh Issuer under any
of the Seventh Issuer Transaction Documents, PROVIDED THAT such monies
are at the relevant time available to the Seventh Issuer and PROVIDED
FURTHER that nothing herein shall constitute a guarantee by the Seventh
Issuer Cash Manager of all or any of the obligations of the Seventh
Issuer under any of the Seventh Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Seventh
Issuer Corporate Services Provider under the Seventh Issuer Corporate
Services Agreement, keep general books of account and records of the
Seventh Issuer; provide accounting services, including reviewing receipts
and payments, supervising and assisting in the preparation of interim
statements and final accounts and supervising and assisting in the
preparation of tax returns;
(g) without prejudice to the role of and in conjunction with the Seventh
Issuer Corporate Services Provider under the Seventh Issuer Corporate
Services Agreement, provide or procure the provision of company
secretarial and administration services to the Seventh Issuer including
the keeping of all registers and the making of all returns and filings
required by applicable law or by UK regulatory authorities, co-operate in
the convening of board and general meetings and provide registered office
facilities;
(h) itself on behalf of the Seventh Issuer, PROVIDED THAT such monies are at
the relevant time available to the Seventh Issuer, pay all the out-of-
pocket expenses of the Seventh Issuer, incurred by the Seventh Issuer
Cash Manager on behalf of the Seventh Issuer in the performance of the
Seventh Issuer Cash Manager's duties hereunder including without
limitation:
(i) all Taxes which may be due or payable by the Seventh Issuer;
(ii) all necessary filing and other fees in compliance with regulatory
requirements;
(iii) all legal and audit fees and other professional advisory fees; and
16
(iv) all communication expenses including postage, courier and
telephone charges;
(i) with the prior written consent of the Seventh Issuer Security Trustee,
the Seventh Issuer Cash Manager may invest monies standing from time to
time to the credit of the Seventh Issuer Bank Accounts in Authorised
Investments, subject to the following provisions:
(i) any such Authorised Investment shall be made in the joint names of
the Seventh Issuer and the Seventh Issuer Security Trustee;
(ii) any costs properly and reasonably incurred in making and changing
Authorised Investments will be reimbursed to the Seventh Issuer
Cash Manager and the Seventh Issuer Security Trustee by the
Seventh Issuer; and
(iii) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Seventh Issuer
Bank Account from which monies were withdrawn to make the relevant
Authorised Investment.
The Seventh Issuer Security Trustee and the Seventh Issuer Cash Manager
shall not be responsible (save where any loss results from the Seventh
Issuer Security Trustee's or the Seventh Issuer Cash Manager's own fraud,
wilful default or negligence or that of its officers or employees) for
any loss occasioned by reason of any such Authorised Investments whether
by depreciation in value or otherwise provided that such Authorised
Investments were made in accordance with the above provisions;
(j) (i) if necessary, perform all currency conversions free of charge,
cost or expense at the relevant exchange rate;
if necessary, perform all interest rate conversions (whether it be
a conversion from a floating rate of interest to a fixed rate of
interest, or vice versa) free of charge, cost or expense at the
relevant interest swap rate; and
(ii) For the purposes of any calculations referred to in sub-paragraphs
(i) and (ii) above, all percentages resulting from such
calculations will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (e.g. 9.876541% (or
0.09876541) being rounded down to 9.87654% (or 0.0987654)) and
(ii) any currency amounts used in or resulting from such
calculations will be rounded in accordance with the relevant
market practice;
(k) make all returns and filings required to be made by the Seventh Issuer
and provide or procure the provision of company secretarial and
administration services to the Seventh Issuer; and
(l) arrange payment of all fees to the London Stock Exchange plc or, as
applicable, the UK Listing Authority of the Financial Services Authority.
17
SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. DETERMINATION
(a) On each Seventh Issuer Note Determination Date, the Seventh Issuer Cash
Manager shall determine each of the following in accordance with this
paragraph 1:
(i) the amount of any Seventh Issuer Principal Receipts and Seventh
Issuer Revenue Receipts available as at the following Interest
Payment Date; and
(ii) the Principal Amount Outstanding of the Seventh Issuer Notes, the
Pool Factor, and the Note Principal Payment of the Seventh Issuer
Notes in accordance with the Conditions.
(b) The Seventh Issuer Cash Manager may make all the determinations referred
to in paragraph 1(a) on the basis of any reasonable and proper
assumptions as the Seventh Issuer Cash Manager considers appropriate
(including without limitation as to the amount of any payments to be made
under paragraph 3 below during the period from and including the Seventh
Issuer Note Determination Date to but excluding the next Interest Payment
Date).
The Seventh Issuer Cash Manager shall notify the Seventh Issuer and the
Seventh Issuer Security Trustee on request of any such other assumptions
and shall take account of any representations made by the Seventh Issuer
and the Seventh Issuer Security Trustee (as the case may be) in relation
thereto.
(c) Each determination made in accordance with this paragraph 1 shall (in the
absence of bad faith, wilful default, negligence and manifest or
demonstrable error) be final and binding on all persons.
2. NOTIFICATION OF DETERMINATIONS
The Seventh Issuer Cash Manager shall procure that the determinations and
notifications required to be made pursuant to Condition 5(C) of the
Conditions are made.
3. PRIORITY OF PAYMENTS FOR SEVENTH ISSUER REVENUE RECEIPTS
Seventh Issuer Revenue Receipts will be applied, as applicable:
(i) on each Interest Payment Date; or
(ii) on each day when due in respect of amounts due to third parties
pursuant to paragraph (b) below or amounts due to the Seventh
Issuer Account Banks under the Seventh Issuer Bank Account
Agreement pursuant to paragraph (d) below,
in each case until enforcement of the Seventh Issuer Security pursuant to
the Seventh Issuer Deed of Charge or until such time as there are no
Seventh Issuer Secured Obligations outstanding, in making such payments
and provisions in the following order of priority (in each case only if
and to the extent that payments or provisions of a higher priority have
been made in full) (the SEVENTH ISSUER PRE-ENFORCEMENT REVENUE PRIORITY
OF PAYMENTS):
18
(a) firstly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
(i) any remuneration then due and payable to the Seventh Issuer
Security Trustee and any amounts then due and payable or to
become due and payable during the immediately following
Interest Period to the Seventh Issuer Security Trustee under
the Seventh Issuer Deed of Charge together with interest and
any amount in respect of VAT as provided therein;
(ii) any remuneration then due and payable to the Note Trustee
and any amounts then due and payable or to become due and
payable during the immediately following Interest Period to
the Note Trustee under the provisions of the Seventh Issuer
Trust Deed, together with interest and any amount in respect
of VAT as provided therein; and
(iii) any remuneration then due and payable to the Agent Bank the
Paying Agents, the Registrar and the Transfer Agent and any
costs, charges, liabilities and expenses then due and
payable or to become due and payable during the immediately
following Interest Period to them under the provisions of
the Seventh Issuer Paying Agent and Agent Bank Agreement
together with any amount in respect of VAT as provided
therein;
(b) secondly, to pay any amounts due and payable by the Seventh Issuer
to third party creditors and incurred without breach by the
Seventh Issuer of the Transaction Documents to which it is a party
(and for which payment has not been provided for elsewhere) and to
provide for any such amounts expected to become due and payable by
the Seventh Issuer during the immediately following Interest
Period and to pay or discharge any liability of the Seventh Issuer
for corporation tax on any chargeable income, profit or gain of
the Seventh Issuer;
(c) thirdly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) any remuneration then due and payable to the Seventh Issuer
Cash Manager and any costs, charges, liabilities and
expenses then due and payable or to become due and payable
during the immediately following Interest Period to the
Seventh Issuer Cash Manager under the provisions of the
Seventh Issuer Cash Management Agreement, together with VAT
thereon as provided therein;
(ii) any remuneration then due and payable to the Seventh Issuer
Corporate Services Provider and any costs, charges,
liabilities and expenses then due and payable or to become
due and payable during the immediately following Interest
Period to the Seventh Issuer Corporate Services Provider
under the Seventh Issuer Corporate Services Agreement
together with interest and any amount in respect of VAT as
provided therein; and
(iii) any remuneration then due and payable to the Seventh Issuer
Account Banks and any costs, charges, liabilities and
expenses then due and payable or to become due and payable
during the immediately following Interest Period to the
Seventh Issuer Account Banks under the Seventh Issuer Bank
Account Agreement together with interest and any amount in
respect of VAT as provided therein;
19
(d) fourthly, to pay in no order of priority between them and pro rata
according to the respective amounts thereof of:
(i) those amounts due and payable by the Seventh Issuer to the
Series 1 Class A Dollar Currency Swap Provider pursuant to
the Series 1 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 1 Class A Dollar Currency Swap Provider), and
from the proceeds received from the Series 1 Class A Dollar
Currency Swap Provider, interest due and payable on the
Series 1 Class A Seventh Issuer Notes;
(ii) those amounts due and payable by the Seventh Issuer to the
Series 2 Class A Dollar Currency Swap Provider pursuant to
the Series 2 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 2 Class A Dollar Currency Swap Provider), and
from the proceeds received from the Series 2 Class A Dollar
Currency Swap Provider, interest due and payable on the
Series 2 Class A Seventh Issuer Notes;
(iii) those amounts due and payable by the Seventh Issuer to the
Series 3 Class A Dollar Currency Swap Provider pursuant to
the Series 3 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 3 Class A Dollar Currency Swap Provider), and
from the proceeds received on each Interest Payment Date
from the Series 3 Class A Dollar Currency Swap Provider,
interest due and payable on the Series 3 Class A Seventh
Issuer Notes;
(iv) those amounts due and payable by the Seventh Issuer to the
Series 4 Class A1 Euro Currency Swap Provider pursuant to
the Series 4 Class A1 Euro Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 4 Class A1 Euro Currency Swap Provider), and from
the proceeds received from the Series 4 Class A1 Euro
Currency Swap Provider, interest due and payable by the
Seventh Issuer on the Series 4 Class A1 Seventh Issuer
Notes; and
(v) interest due and payable by the Seventh Issuer on the Series
4 Class A2 Seventh Issuer Notes;
(e) fifthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Seventh Issuer to the
Series 1 Class B Dollar Currency Swap Provider pursuant to
the Series 1 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 1 Class B Dollar Currency Swap Provider), and
from the proceeds received from the Series 1 Class B Dollar
Currency Swap Provider, interest due and payable on the
Series 1 Class B Seventh Issuer Notes;
20
(ii) those amounts due and payable by the Seventh Issuer to the
Series 2 Class B Dollar Currency Swap Provider pursuant to
the Series 2 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 2 Class B Dollar Currency Swap Provider), and
from the proceeds received from the Series 2 Class B Dollar
Currency Swap Provider, interest due and payable on the
Series 2 Class B Seventh Issuer Notes;
(iii) interest due and payable by the Seventh Issuer on the Series
3 Class B Seventh Issuer Notes; and
(iv) those amounts due and payable by the Seventh Issuer to the
Series 3 Class B Euro Currency Swap Provider pursuant to the
Series 4 Class B Euro Currency Swap Agreement (except for
any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 4 Class B Euro Currency Swap Provider), and from
the proceeds received from the Series 4 Class B Euro
Currency Swap Provider, interest due and payable on the
Series 4 Class B Seventh Issuer Notes;
(f) sixthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Seventh Issuer to the
Series 1 Class M Dollar Currency Swap Provider pursuant to
the Series 1 Class M Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
Series 1 Class M Dollar Currency Swap Provider), and from
the proceeds received from the Series 1 Class M Dollar
Currency Swap Provider, interest due and payable on the
Series 1 Class M Seventh Issuer Notes;
(ii) those amounts due and payable by the Seventh Issuer to the
Series 2 Class M Dollar Currency Swap Provider pursuant to
the Series 2 Class M Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 2 Class M Dollar Currency Swap Provider), and
from the proceeds received from the Series 2 Class M Dollar
Currency Swap Provider, interest due and payable on the
Series 2 Class M Seventh Issuer Notes;
(iii) interest due and payable by the Seventh Issuer on the Series
3 Class M Seventh Issuer Notes; and
(iv) those amounts due and payable by the Seventh Issuer to the
Series 4 Class M Euro Currency Swap Provider pursuant to the
Series 4 Class M Euro Currency Swap Agreement (except for
any termination payment due and payable by the Seventh
Issuer following a Seventh Issuer Swap Provider Default by
the Series 4 Class M Euro Currency Swap Provider), and from
the proceeds received from the Series 4 Class M Euro
Currency Swap Provider, interest due and payable on the
Series 4 Class M Seventh Issuer Notes;
(g) seventhly, to pay pro rata and pari passu according to the
respective amounts thereof of:
21
(i) any termination payments due and payable by the Seventh
Issuer under the Series 1 Class A Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 1 Class A Dollar Currency
Swap Provider;
(ii) any termination payments due and payable by the Seventh
Issuer under the Series 2 Class A Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 2 Class A Dollar Currency
Swap Provider;
(iii) any termination payments due and payable by the Seventh
Issuer under the Series 3 Class A Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 3 Class A Dollar Currency
Swap Provider; and
(iv) any termination payments due and payable by the Seventh
Issuer under the Series 4 Class A1 Euro Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 4 Class A1 Euro Currency Swap
Provider; and
(h) eighthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) any termination payments due and payable by the Seventh
Issuer under the Series 1 Class B Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 1 Class B Dollar Currency
Swap Provider;
(ii) any termination payments due and payable by the Seventh
Issuer under the Series 2 Class B Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 2 Class B Dollar Currency
Swap Provider; and
(iii) any termination payments due and payable by the Seventh
Issuer under the Series 4 Class B Euro Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 4 Class B Euro Currency Swap
Provider;
(i) ninthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) any termination payments due and payable by the Seventh
Issuer under the Series 1 Class M Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series 1 Class M Dollar Currency
Swap Provider;
(ii) any termination payments due and payable by the Seventh
Issuer under the Series 2 Class M Dollar Currency Swap
Agreement, following the occurrence of a Seventh Issuer Swap
Provider Default by the Series Class M Dollar Currency Swap
Provider; and
(iii) any termination payments due and payable by the Seventh
Issuer under the Series 4 Class M Euro Currency Swap
Agreement, following the occurrence
22
of a Seventh Issuer Swap Provider Default by the Series 4 Class M
Euro Currency Swap Provider;
(j) tenthly, to pay the Seventh Issuer an amount equal to 0.01 per
cent. of the interest received on the Seventh Issuer Term Advances
to be retained by the Seventh Issuer as profit; and
(k) eleventhly, to pay to shareholders of the Seventh Issuer any
dividend declared by the Seventh Issuer.
4. PRIORITY OF PAYMENTS FOR SEVENTH ISSUER PRINCIPAL RECEIPTS
Subject to Condition 5 of the Seventh Issuer Notes, until enforcement of
the Seventh Issuer Security pursuant to the Seventh Issuer Deed of Charge
or until such time as there are no Seventh Issuer Notes outstanding,
Seventh Issuer Principal Receipts will be applied to repay the Seventh
Issuer Notes as follows:
(a) the Series 1 Class A Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 1 Term AAA Advance, converted into Dollars
at the relevant Dollar Currency Swap Rate;
(b) the Series 2 Class A Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 2 Term AAA Advance, converted into Dollars
at the relevant Dollar Currency Swap Rate;
(c) the Series 3 Class A Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 3 Term AAA Advance, converted into Dollars
at the relevant Dollar Currency Swap Rate;
(d) the Series 4 Class A1 Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 4A1 Term AAA Advance, converted into Euros
at the relevant Euro Currency Swap Rate;
(e) the Series 4 Class A2 Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 4A2 Term AAA Advance;
(f) the Series 1 Class B Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 1 Term AA Advance, converted into Dollars at
the relevant Dollar Currency Swap Rate;
(g) the Series 2 Class B Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 2 Term AA Advance, converted into Dollars at
the relevant Dollar Currency Swap Rate;
(h) the Series 3 Class B Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 3 Term AA Advance;
23
(i) the Series 4 Class B Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 4 Term AA Advance converted into Euros at
the relevant Euro Currency Swap Rate;
(j) the Series 1 Class M Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 1 Term A Advance, converted into Dollars at
the relevant Dollar Currency Swap Rate;
(k) the Series 2 Class M Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 2 Term A Advance, converted into Dollars at
the relevant Dollar Currency Swap Rate;
(l) the Series 3 Class M Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 3 Term A Advance; and
(m) the Series 4 Class M Seventh Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount, if
any, repaid on that Interest Payment Date in respect of the
Seventh Issuer Series 4 Term A Advance converted into Euros at the
relevant Euro Currency Swap Rate.
5. RECORDS
In addition, the Seventh Issuer Cash Manager shall ensure that a separate
record is kept of any amount received from the Dollar Currency Swap
Providers and the Euro Currency Swap Provider and pursuant to,
respectively, the Dollar Currency Swap Agreements and the Euro Currency
Swap Agreements.
24
SCHEDULE 3
FORM OF SEVENTH ISSUER QUARTERLY REPORT
XXXXXX FINANCING (NO. 7) PLC
PROFIT & LOSS ACCOUNT
PERIOD ENDED
THIS QUARTER PRIOR QUARTER
{pound-sterling}{pound-sterling}
-------------------------------
Interest Receivable - Inter-Company Loan 0 0
Interest Receivable - Cash Deposits
---------------
Interest Payable - Notes
Interest Payable
-------------------------------
0 0
-------------------------------
Net Operating Income 0 0
Other Income
Insurance Commission
Operating Expenses
-------------------------------
Profit/loss on ordinary activities before tax 0 0
Taxation
-------------------------------
Profit/loss on ordinary activities after tax 0 0
Dividend 0 0
Retained profit brought forward 0 0
-------------------------------
Retained profit for the year 0 0
===============================
25
XXXXXX FINANCING (NO. 7) PLC
BALANCE SHEET
PERIOD ENDED
{pound-sterling}{pound-sterling}
FIXED ASSET INVESTMENTS
Inter Company Lending 0
CURRENT ASSETS
Interest Receivable 0
Other debtors 0
Cash at Bank 0
-------------
0
-------------
CREDITORS: AMOUNTS FALLING DUE WITHIN ONE YEAR
Accruals 0
Interest Payable Accrual 0
Taxation 0
-------------
0
-------------
Net current assets 0
CREDITORS: AMOUNTS FALLING DUE AFTER ONE YEAR
Amount due to Noteholders 0
-------------
Total Assets less current liabilities 0
=============
Share Capital 0
Reserves 0
-------------
0
=============
Diff 0
26
XXXXXX FINANCING (NO. 7) PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A
Xxxxx'x Current Rating P -1 Aaa Aaa Aaa
Fitch Current Rating F1+ AAA AAA AAA
S&P Current Rating A-1+ AAA AAA AAA
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Xxxxx'x Current Rating Aa3 Aa3 Aa3 Aa3
Fitch Current Rating AA AA AA AA
S&P Current Rating AA AA AA AA
SERIES 1 CLASS M SERIES 2 CLASS M SERIES 3 CLASS M SERIES 4 CLASS M
Xxxxx'x Current Rating A2 A2 A2 A2
Fitch Current Rating A A A A
S&P Current Rating A A A A
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS M SERIES 2 CLASS M SERIES 3 CLASS M SERIES 4 CLASS M
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS M SERIES 2 CLASS M SERIES 3 CLASS M SERIES 4 CLASS M
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
SERIES 1 CLASS M SERIES 2 CLASS M SERIES 3 CLASS M SERIES 4 CLASS M
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
27
SIGNATORIES
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 7) PLC )
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
28
