DRAFT
Exhibit 4.9
NINTH ISSUER CASH MANAGEMENT AGREEMENT
DATED [*], 2005
ABBEY NATIONAL PLC
(AS NINTH ISSUER CASH MANAGER)
AND
XXXXXX FINANCING (NO. 9) PLC
(THE NINTH ISSUER)
AND
THE BANK OF NEW YORK, LONDON BRANCH
(THE NINTH ISSUER SECURITY TRUSTEE)
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.........................................1
2. Appointment of Ninth Issuer Cash Manager...............................2
3. The Ninth Issuer Cash Management Services..............................2
4. Payments, Accounts, Ledgers............................................3
5. Payments under Ninth Issuer Swaps and Termination of Ninth Issuer
Swaps..................................................................6
6. No Liability...........................................................7
7. Costs and Expenses.....................................................7
8. Information............................................................7
9. Remuneration...........................................................9
10. Covenants of Ninth Issuer Cash Manager.................................9
11. Ninth Issuer Cash Management Services Non-Exclusive...................10
12. Termination...........................................................10
13. Further Assurance.....................................................13
14. Miscellaneous.........................................................13
15. Confidentiality.......................................................14
16. Notices...............................................................15
17. Variation and Waiver..................................................15
18. No Partnership........................................................15
19. Assignment............................................................16
20. Exclusion of Third Party Rights.......................................16
21. Counterparts..........................................................16
22. Governing Law.........................................................16
SCHEDULE
1. The Cash Management Services..........................................17
2. Cash Management and Maintenance of Ledgers............................19
3. Form of Ninth Issuer Quarterly Report.................................24
4.
Signatories..................................................................27
THIS NINTH ISSUER CASH MANAGEMENT AGREEMENT is made on [*], 2005
BETWEEN:
(1) ABBEY NATIONAL PLC (registered number 2294747), 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 NINTH 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. 9) PLC (registered number 5115696), 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 NINTH ISSUER); and
(3) THE BANK OF NEW YORK, LONDON BRANCH acting through its office at 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX in its capacity as trustee (the
NINTH ISSUER SECURITY TRUSTEE which expression shall include such
persons and all other persons for the time being acting as the trustee
or trustees under the Ninth Issuer Deed of Charge).
WHEREAS:
(A) On the Ninth Issuer Closing Date, the Ninth Issuer will issue the Ninth
Issuer Notes. From the proceeds of the issue of the Ninth Issuer Notes,
the Ninth Issuer shall make the Ninth Issuer Term Advances to Funding.
(B) The Ninth Issuer Cash Manager is willing to provide cash management
services to the Ninth Issuer and the Ninth 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 Ninth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May on [*], 2005 (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 Ninth Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented from time to time) 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 Ninth Issuer
Master Definitions and Construction Schedule. In the event of a conflict
between the Amended and Restated Master Definitions and Construction
Schedule and the Ninth Issuer Master Definitions and Construction
Schedule, the Ninth Issuer Master Definitions and Construction Schedule
shall prevail.
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2. APPOINTMENT OF NINTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to Clause 12, the Ninth Issuer and the Ninth
Issuer Security Trustee (according to their respective estates and
interests) each hereby appoints the Ninth Issuer Cash Manager as its
lawful agent to provide the Ninth Issuer Cash Management Services set
out in this Agreement, including in relation to the Ninth Issuer Notes
to be issued by the Ninth Issuer. The Ninth 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 Ninth
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 NINTH ISSUER NOTES
The appointment pursuant to Clause 2.1 is conditional upon the issue of
the Ninth Issuer Notes and shall take effect upon and from the Ninth
Issuer Closing Date automatically without any further action on the part
of any person, PROVIDED THAT if the issue of the Ninth Issuer Notes has
not occurred on or by [*], 2005, or such later date as the Ninth Issuer
and the Lead Managers may agree, this Agreement shall cease to be of
further effect.
3. THE NINTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Ninth Issuer Cash Manager shall provide the services set out in this
Agreement (including, without limitation, the Schedules attached hereto)
(the NINTH ISSUER CASH MANAGEMENT SERVICES).
3.2 APPROVALS AND AUTHORISATIONS
The Ninth Issuer Cash Manager shall maintain, or procure the maintenance
of, the approvals, authorisations, consents and licences required in
connection with the business of the Ninth Issuer and shall prepare and
submit, or procure the preparation and submission of, on behalf of the
Ninth 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 Ninth Issuer and shall, so far as it
reasonably can do so, perform the Ninth 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 Ninth Issuer Cash Management Services shall include procuring (so
far as the Ninth Issuer Cash Manager, using its reasonable endeavours,
is able so to do) compliance by the Ninth Issuer with all applicable
legal requirements and with the terms of the Ninth Issuer Transaction
Documents, PROVIDED ALWAYS THAT the Ninth Issuer Cash Manager shall not
lend or provide any sum to the Ninth Issuer and that the Ninth Issuer
Cash Manager shall have no liability whatsoever to the Ninth Issuer, the
Ninth Issuer Security Trustee or any
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other person for any failure by the Ninth Issuer to make any payment due
by any of them under any of the Ninth Issuer Transaction Documents
(other than to the extent arising from any failure by the Ninth Issuer
Cash Manager to perform any of its obligations under any of the
Transaction Documents).
3.4 LIABILITY OF NINTH ISSUER CASH MANAGER
(a) The Ninth Issuer Cash Manager shall indemnify each of the Ninth Issuer
and the Ninth 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, fraud, bad faith or wilful default
of the Ninth Issuer Cash Manager in carrying out its functions as Ninth
Issuer Cash Manager under, or as a result of a breach by the Ninth
Issuer Cash Manager of, the terms and provisions of this Agreement or
such other Transaction Documents to which the Ninth Issuer Cash Manager
is a party (in its capacity as such) in relation to such functions.
(b) For the avoidance of doubt, the Ninth Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or damage
suffered or incurred by the Ninth Issuer or the Ninth Issuer Security
Trustee and/or any other person as a result of the proper performance of
the Ninth Issuer Cash Management Services by the Ninth 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, fraud, bad
faith or wilful default of the Ninth Issuer Cash Manager under, or as a
result of a breach by the Ninth Issuer Cash Manager of, the terms and
provisions of this Agreement or any of the other Transaction Documents
to which the Ninth Issuer Cash Manager is a party (in its capacity as
such) in relation to such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 NINTH ISSUER BANK ACCOUNT
(a) The Ninth Issuer Cash Manager hereby confirms that the Ninth Issuer
Transaction Accounts and the Issuer Collateral Account have been
established on or before the date hereof and that mandates in the agreed
form will apply thereto at the Ninth Issuer Closing Date. The Ninth
Issuer Cash Manager undertakes (to the extent to which the same is
within its control in its capacity as Ninth Issuer Cash Manager) that at
the Ninth Issuer Closing Date, the Ninth Issuer Transaction Accounts
will be operative and that the Ninth Issuer Cash Manager will not
knowingly create or permit to subsist any Security Interest in relation
to the Ninth Issuer Transaction Accounts other than as created under or
permitted pursuant to the Ninth Issuer Deed of Charge.
(b) The Ninth Issuer Cash Manager shall procure that the following amounts
are paid into the Ninth Issuer Transaction Accounts:
(i) all amounts of interest paid on the Ninth Issuer Term Advances;
(ii) all repayments of principal on the Ninth Issuer Term Advances;
(iii) all amounts received by the Ninth Issuer pursuant to the Dollar
Currency Swap Agreements and, the Euro Currency Swap Agreement
(other than any amounts of collateral required to be transferred
by a Ninth Issuer Swap Provider which shall be paid into the
relevant Issuer Collateral Account); and
(iv) any other amounts whatsoever received by or on behalf of the
Ninth Issuer after the Ninth Issuer Closing Date,
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and the Ninth Issuer Cash Manager shall procure that all interest earned
on the Ninth Issuer Transaction Accounts and all investment proceeds
from Authorised Investments purchased from amounts standing to the
credit of the Ninth Issuer Bank Accounts are credited to such account
except that any interest earned in respect of any collateral transferred
by any Ninth Issuer Swap Provider under any Ninth Issuer Swap Agreement
or any investment proceeds from Authorised Investments in which such
collateral is invested shall be paid into the Issuer Collateral Account.
All amounts received by the Ninth Issuer denominated (i) in Sterling
shall be paid into the Ninth Issuer Sterling Account; (ii) in Dollars
shall be paid into the Ninth Issuer Dollar Account; and (iii) in Euro
shall be paid into the Ninth Issuer Euro Account.
(c) Each of the payments into the Ninth Issuer Transaction Accounts referred
to in Clause 4.1(b) shall be made forthwith upon receipt by the Ninth
Issuer or the Ninth 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 Ninth Issuer Cash Manager may, and
shall, withdraw Cash from the Ninth 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 Ninth Issuer Cash Manager shall promptly notify each of the Ninth
Issuer and the Ninth Issuer Security Trustee of any additional account
which supplements or replaces any account specifically referred to in
the definition of the "Ninth Issuer Transaction Accounts" in the Ninth
Issuer Master Definitions and Construction Schedule.
(f) Each of the Ninth Issuer Cash Manager and the Ninth Issuer undertakes
that, so far as it is able to procure the same, the Ninth 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 Ninth Issuer Bank Account Agreement, be changed without
prior written consent of the Ninth Issuer Security Trustee (such consent
not to be unreasonably withheld or delayed). For the avoidance of doubt,
the Ninth Issuer Cash Manager may change the authorised signatories in
respect of any instructions or mandates, without the prior written
consent of the Ninth Issuer Security Trustee, in accordance with the
terms of the Ninth Issuer Bank Account Agreement.
(g) (i) Any and all amounts of collateral provided to the Ninth Issuer
by any of the Ninth Issuer Swap Providers will be credited to
the Ninth Issuer Collateral Ledger;
(ii) for the avoidance of doubt, references in this Agreement to
amounts received from any of the Ninth Issuer Swap Providers
under any of the Ninth Issuer Swap Agreements will, save as
provided in Clause 4.1(g)(iii) below, exclude any and all
amounts of collateral provided to the Ninth Issuer by any Ninth
Issuer Swap Provider;
(iii) under the Ninth Issuer Swap Agreements:
(I) any amount standing to the credit of the Ninth Issuer
Collateral Ledger in respect of such Ninth Issuer Swap
Agreement after the deduction of (A) the applicable
termination amount due, if any, or (B) any amount which
the Eight Issuer is otherwise entitled to in accordance
with the terms of the credit support agreement thereto,
in each case, from the relevant Ninth Issuer Swap
Provider to the Ninth Issuer under such Ninth Issuer
Swap Agreement, shall be repaid to the relevant Ninth
Issuer Swap Provider; and
(II) the remaining amounts standing to the credit of the
Ninth Issuer Collateral Ledger shall be applied to
discharge the Ninth Issuer Swap Counterparty's
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obligations to the Ninth Issuer by way of termination
amounts pursuant to the relevant Ninth Issuer Swap
Agreement; and
(iv) all amounts standing to the credit of the Ninth Issuer
Collateral Ledger after the application of (iii) above shall be
applied:
(I) prior to the enforcement of the Ninth Issuer Security,
in or towards the premium payable (if any) as a result
of entering into a replacement swap agreement; or
(II) following the enforcement of the Ninth Issuer Security
subject to the terms of the Ninth Issuer Deed of Charge,
either: (i) in or towards the premium payable (if any)
as a result of entering into a replacement swap
agreement; or (ii) by the Ninth Issuer Security Trustee
as Ninth Issuer Revenue Receipts in accordance with the
relevant Ninth Issuer Post-Enforcement Priority of
Payments.
(h) In the event that the Ninth Issuer owes a termination payment to a Ninth
Issuer Swap Provider as a result of an early termination of a Ninth
Issuer Swap Agreement due to the ratings downgrade of a Ninth Issuer
Swap Provider, then any Swap Replacement Payment payable to the Ninth
Issuer by a replacement swap provider as a result of its entry into a
replacement swap agreement with the Ninth Issuer shall be applied by the
Ninth Issuer in or towards to costs of the termination amount owed to
the relevant Ninth Issuer Swap Provider and, for the avoidance of doubt,
will not constitute Ninth Issuer Revenue Receipts. To the extent that an
early termination of a Ninth Issuer Swap Agreement is not caused by the
ratings downgrade of a Ninth Issuer Swap Provider then the Ninth Issuer
Revenue Receipts shall include any Swap Replacement Payment received by
the Ninth Issuer.
4.2 WITHDRAWALS
(a) The Ninth Issuer Cash Manager may make withdrawals on behalf of the
Ninth Issuer from the Ninth Issuer Transaction Accounts, but only until
receipt of a copy of a Ninth Issuer Note Enforcement Notice served by
the Ninth Issuer Security Trustee on the Ninth Issuer, as permitted by
this Agreement but shall not, in carrying out its functions as Ninth
Issuer Cash Manager under this Agreement, otherwise make withdrawals
from the Ninth Issuer Transaction Accounts.
(b) Upon receipt of such a Ninth Issuer Note Enforcement Notice, no amount
shall be withdrawn from the Ninth Issuer Transaction Accounts by the
Ninth Issuer Cash Manager without the prior written consent of the Ninth
Issuer Security Trustee.
4.3 CASH MANAGEMENT
In administering the Ninth Issuer Transaction Accounts on behalf of the
Ninth Issuer and the Ninth Issuer Security Trustee, the Ninth Issuer
Cash Manager shall comply with the provisions of Schedule 2 prior to
receipt by the Ninth Issuer Cash Manager of a copy of any Ninth Issuer
Note Enforcement Notice served on the Ninth Issuer. Following service of
a Ninth Issuer Note Enforcement Notice, the Ninth Issuer Security
Trustee or any Receiver appointed by the Ninth Issuer Security Trustee
will administer the Ninth Issuer Transaction Accounts in accordance with
the terms of the Ninth Issuer Deed of Charge.
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5. PAYMENTS UNDER NINTH ISSUER SWAPS AND TERMINATION OF NINTH ISSUER SWAPS
5.1 Subject to the order of priorities of payment set out in this Agreement
or, as the case may be, the Ninth Issuer Deed of Charge, on each
Interest Payment Date, the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay amounts received in respect of the Ninth
Issuer Series 1 Term Advances (after making payments ranking higher in
the order of 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 Ninth Issuer Notes in accordance with the
Ninth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Ninth Issuer Post-Enforcement Priority of Payments.
5.2 Subject to the order of priorities of payment set out in this Agreement
or, as the case may be, the Ninth Issuer Deed of Charge, on each
Interest Payment Date, the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay amounts received in respect of the Ninth
Issuer Series 2 Term Advances (after making payments ranking higher in
the order of 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 Ninth Issuer Notes in accordance with the
Ninth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Ninth Issuer Post-Enforcement Priority of Payments.
5.3 Subject to the order of priorities of payment set out in this Agreement
or, as the case may be, the Ninth Issuer Deed of Charge, on each
Interest Payment Date, the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay amounts received in respect of the Ninth
Issuer Series 3 Term Advances (after making payments ranking higher in
the order of priority of payments) to the relevant Euro Currency Swap
Provider. Amounts received from the relevant Euro Currency Swap Provider
will be applied to pay amounts due to the holders of the relevant
classes of Series 3 Ninth Issuer Notes in accordance with the Ninth
Issuer Pre-Enforcement Priority of Payments or, as the case may be, the
Ninth 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 Ninth Issuer Notes or (ii) in the case of the Series 4 Class A Ninth
Issuer Notes, the Interest Payment Date falling in [January 2016] or if
earlier, the occurrence of a Series 4 Class A Interest Event, or (iii)
the service of a Ninth Issuer Note Enforcement Notice, any of the Dollar
Currency Swaps or Euro Currency Swap is terminated, the Ninth Issuer
Cash Manager (on behalf of the Ninth Issuer and the Ninth Issuer
Security Trustee) shall purchase a replacement hedge in respect of the
relevant class of Ninth Issuer Notes, against fluctuations in, as
appropriate, (a) the relevant currency swap rate between Dollars and
Sterling or the possible variance between a rate calculated by reference
to LIBOR for three one-month Sterling deposits and (i) USD-LIBOR for
one-month Dollar deposits in relation to the Series 1 Class A Ninth
Issuer Notes and/or (ii) USD-LIBOR for three-month Dollar deposits in
relation to the and the Series 2 Ninth Issuer Notes or (b) the currency
swap rate between Euro and Sterling or the possible variance between a
rate calculated by reference to LIBOR for three-month Sterling deposits
and EURIBOR for three-month Euro deposits in relation to the Series 3
Class A1 Ninth Issuer Notes, and, in each case, on terms acceptable to
the Rating Agencies and the Ninth Issuer and the Ninth Issuer Security
Trustee and with a swap provider whom the Rating Agencies have
6
previously confirmed in writing to the Ninth Issuer and the Ninth Issuer
Security Trustee will not cause the then current ratings of the Ninth
Issuer Notes to be downgraded. Notwithstanding, and in addition to, the
provisions of Clause 4.1(g), the Ninth Issuer may apply any early
termination payment received from the relevant Dollar Currency Swap
Provider or Euro Currency wap Provider, for such purpose.
5.5 If the Ninth Issuer receives a Refund Payment (as defined in NINTH
ISSUER REVENUE RECEIPTS) then the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay over an amount equal to such Refund
Payment to the relevant Ninth Issuer Swap Provider upon receipt.
6. NO LIABILITY
Save as otherwise provided in this Agreement, the Ninth Issuer Cash
Manager shall have no liability for the obligations of either the Ninth
Issuer Security Trustee or the Ninth Issuer under any of the Transaction
Documents or otherwise and nothing herein shall constitute a guarantee,
or similar obligation, by the Ninth Issuer Cash Manager of either
Funding, the Ninth Issuer Security Trustee or the Ninth Issuer in
respect of any of them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Ninth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Ninth Issuer
Post-Enforcement Priority of Payments, the Ninth Issuer will on each
Interest Payment Date reimburse the Ninth 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 Ninth
Issuer Cash Manager in the performance of the Ninth Issuer Cash
Management Services including any such costs, expenses or charges not
reimbursed to the Ninth Issuer Cash Manager on any previous Interest
Payment Date and the Ninth Issuer Cash Manager shall supply the Ninth
Issuer with an appropriate VAT invoice issued by the Ninth Issuer Cash
Manager or, if the Ninth 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 Ninth Issuer Cash Manager represents and warrants that at the date
hereof, in respect of the software which is to be used by the Ninth
Issuer Cash Manager in providing the Ninth 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 Ninth 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
Ninth 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 Ninth Issuer Cash Manager shall use reasonable endeavours to
maintain in working order the information technology systems used by the
Ninth Issuer Cash Manager in providing the Ninth Issuer Cash Management
Services.
(d) The Ninth 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 Ninth
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 Ninth Issuer Cash Manager shall take all reasonable steps to ensure
that it receives a monthly bank statement in relation to each of the
Ninth Issuer Bank Accounts and that it furnishes a copy of such
statements to the Ninth Issuer and the Ninth Issuer Security Trustee.
8.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Ninth Issuer Cash Manager shall
permit the Auditors of the Ninth Issuer and any other person nominated
by the Ninth Issuer Security Trustee, (to whom the Ninth 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 Ninth Issuer Cash Management Services provided by the
Ninth Issuer Cash Manager and related matters in accordance with this
Agreement.
8.4 STATUTORY OBLIGATIONS
The Ninth Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Ninth Issuer, to prepare or procure the preparation of and
file all reports, annual returns, financial statements, statutory forms
and other returns which the Ninth Issuer is required by law to prepare
and file. Subject to approval thereof by the directors of the Ninth
Issuer, the Ninth 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 Ninth Issuer
Security Trustee, the Ninth Issuer and the Rating Agencies as soon as
practicable after the end of each accounting reference period of the
Ninth Issuer.
8.5 INFORMATION COVENANTS
(a) The Ninth Issuer Cash Manager shall provide the Ninth Issuer, the Ninth
Issuer Security Trustee, the Seller and the Rating Agencies with a
quarterly report in, or substantially in, the form set out in Schedule 3
in respect of the Ninth Issuer. Such quarterly report shall be delivered
to the Ninth Issuer, the Ninth 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 Ninth Issuer Cash Manager shall provide, or procure the provision
of, to the Ninth Issuer, the Ninth 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.
(c) The Ninth Issuer Cash Manager shall notify the Rating Agencies in
writing of the details of (i) any material amendment to the Ninth Issuer
Transaction Documents to which the Ninth
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Issuer is a party; (ii) the occurrence of a Ninth Issuer Note Event of
Default; and (iii) any other information relating to the Ninth 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 Ninth Issuer Cash Manager's
day-to-day provision of the Ninth Issuer Cash Management Services under
the other terms of this Agreement.
(d) The Ninth Issuer Cash Manager shall, at the request of the Ninth Issuer
Security Trustee, furnish the Ninth 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 Ninth Issuer
Security Trustee to request in connection with this Agreement, PROVIDED
THAT the Ninth Issuer Security Trustee shall not make such a request
more than once every three months unless, in the belief of the Ninth
Issuer Security Trustee, a Ninth Issuer Intercompany Loan Event of
Default, a Ninth Issuer Note Event of Default or a Ninth Issuer Cash
Manager Termination Event (as defined in Clause 12.1) 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
Ninth Issuer Cash Manager's day-to-day provision of the Ninth Issuer
Cash Management Services under the other terms of this Agreement.
9. REMUNERATION
9.1 FEE PAYABLE
The Ninth Issuer shall pay to the Ninth Issuer Cash Manager for its
services hereunder a cash management fee which shall be agreed in
writing between the Ninth Issuer, the Ninth Issuer Security Trustee and
the Ninth Issuer Cash Manager from time to time.
9.2 PAYMENT OF FEE
The cash management fee referred to in Clause 9.1 shall be paid to the
Ninth Issuer Cash Manager in arrear on each Interest Payment Date in the
manner contemplated by and in accordance with the provisions of the
Ninth Issuer Pre-Enforcement Revenue Priority of Payments or, as the
case may be, the Ninth Issuer Post-Enforcement Priority of Payments.
10. COVENANTS OF NINTH ISSUER CASH MANAGER
10.1 COVENANTS
The Ninth Issuer Cash Manager hereby covenants with and undertakes to
each of the Ninth Issuer and the Ninth 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 Ninth Issuer or the Ninth 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 Ninth Issuer Security Trustee shall prevail;
(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 Ninth Issuer
Cash Management Services and prepare and submit all necessary
applications and requests for any further approval,
authorisation,
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consent or licence required in connection with the performance
of the Ninth Issuer Cash Management Services;
(d) save as otherwise agreed with the Ninth Issuer and the Ninth
Issuer Security Trustee, it will provide free of charge to the
Ninth Issuer during normal office hours office space,
facilities, equipment and staff sufficient to fulfil the
obligations of the Ninth Issuer under this Agreement;
(e) it will not knowingly fail to comply with any legal requirements
in the performance of the Ninth 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 Ninth
Issuer Security Trustee amend or terminate any of the Ninth
Issuer Transaction Documents save in accordance with their
terms.
10.2 DURATION OF COVENANTS
The covenants of the Ninth Issuer Cash Manager in Clause 10.1 shall
remain in force until this Agreement is terminated but without prejudice
to any right or remedy of the Ninth Issuer and/or the Ninth Issuer
Security Trustee arising from breach of any such covenant prior to the
date of termination of this Agreement.
11. NINTH ISSUER CASH MANAGEMENT SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Ninth 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 Ninth Issuer or the Ninth Issuer Security Trustee.
12. TERMINATION
12.1 NINTH ISSUER CASH MANAGER TERMINATION EVENTS
If any of the following events (NINTH ISSUER CASH MANAGER TERMINATION
EVENTS) shall occur:
(a) default is made by the Ninth 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 Ninth Issuer
Cash Manager becoming aware of such default and receipt by the
Ninth Issuer Cash Manager of written notice from the Ninth
Issuer or the Ninth Issuer Security Trustee, as the case may be,
requiring the same to be remedied; or
(b) default is made by the Ninth Issuer Cash Manager in the
performance or observance of any of its other covenants and
obligations under this Agreement, which in the reasonable
opinion of the Ninth Issuer Security Trustee is materially
prejudicial to the interests of the Ninth Issuer Secured
Creditors and such default continues unremedied for a period of
twenty days after the earlier of the Ninth Issuer Cash Manager
becoming aware of such default and receipt by the Ninth Issuer
Cash Manager of
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written notice from the Ninth Issuer Security Trustee requiring
the same to be remedied; or
(c) while the Ninth Issuer Cash Manager is the Seller, an Insolvency
Event occurs,
then the Ninth Issuer Security Trustee may at once or at any time
thereafter while such default continues by notice in writing to the
Ninth Issuer Cash Manager terminate its appointment as Ninth 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 NINTH ISSUER CASH MANAGER
The appointment of the Ninth Issuer Cash Manager under this Agreement
may be terminated upon the expiry of not less than 12 months' notice of
termination given by the Ninth Issuer Cash Manager to the Ninth Issuer
and the Ninth Issuer Security Trustee PROVIDED THAT:
(a) the Ninth Issuer and the Ninth 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 Ninth Issuer and the Ninth 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 Ninth
Issuer and the Ninth Issuer Security Trustee and the Ninth
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 Ninth Issuer under such agreement are charged
in favour of the Ninth Issuer Security Trustee on terms
satisfactory to the Ninth Issuer Security Trustee; and
(e) the then current ratings (if any) of the Ninth Issuer Notes are
not adversely affected as a result thereof, unless otherwise
agreed by an Extraordinary Resolution (as defined in the Ninth
Issuer Trust Deed) of the holders of the Class A Ninth Issuer
Notes.
12.3 EFFECT OF TERMINATION
(a) On and after termination of the appointment of the Ninth Issuer Cash
Manager under this Agreement pursuant to this Clause 12, all authority
and power of the Ninth Issuer Cash Manager under this Agreement shall be
terminated and be of no further effect and the Ninth Issuer Cash Manager
shall not thereafter hold itself out in any way as the agent of the
Ninth Issuer or the Ninth Issuer Security Trustee pursuant to this
Agreement.
(b) Upon termination of the appointment of the Ninth Issuer Cash Manager
under this Agreement pursuant to this Clause 12, the Ninth Issuer Cash
Manager shall:
(i) forthwith deliver (and in the meantime hold on trust for, and to
the order of, the Ninth Issuer or the Ninth Issuer Security
Trustee, as the case may be) to the Ninth Issuer or the Ninth
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 Ninth
Issuer or the
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Ninth Issuer Security Trustee, as the case may be, (if
practicable, on the date of receipt) any monies then held by the
Ninth Issuer Cash Manager on behalf of the Ninth Issuer, the
Ninth Issuer Security Trustee and any other assets of the Ninth
Issuer and the Ninth Issuer Security Trustee;
(ii) take such further action as the Ninth Issuer or the Ninth Issuer
Security Trustee, as the case may be, may reasonably direct at
the expense of the Ninth Issuer or the Ninth Issuer Security
Trustee, as the case may be (including in relation to the
appointment of a substitute cash manager) provided that the
Ninth 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 Ninth Issuer or the
Ninth 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
Ninth Issuer or the Ninth Issuer Security Trustee or such
nominee, as the case may be.
12.4 NOTICE OF EVENT OF DEFAULT
The Ninth Issuer Cash Manager shall deliver to the Ninth Issuer and the
Ninth Issuer Security Trustee as soon as reasonably practicable but in
any event within three Business Days of becoming aware thereof a notice
of any Ninth Issuer Cash Manager Termination Event or any Ninth 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 Ninth
Issuer Cash Manager Termination Event or Ninth 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 Ninth Issuer
Cash Manager under this Agreement shall be without prejudice to the
liabilities of the Ninth Issuer and the Ninth Issuer Security Trustee to
the Ninth Issuer Cash Manager or vice versa incurred before the date of
such termination. The Ninth 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 Ninth Issuer or the Ninth Issuer Security Trustee.
(b) This Agreement shall terminate at such time as the Ninth Issuer Secured
Obligations have been fully discharged.
(c) On termination of the appointment of the Ninth Issuer Cash Manager under
the provisions of this Clause 12, the Ninth 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 Ninth Issuer shall pay such monies so
receivable by the Ninth Issuer Cash Manager in accordance with the Ninth
Issuer Pre-Enforcement Revenue Priority of Payments or, as the case may
be, the Ninth 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 Ninth Issuer
Cash Manager's rights to receive payment of all amounts (if any) due to
it from the Ninth Issuer other than under this Agreement.
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(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 13.1, the Ninth Issuer and
the Ninth Issuer Security Trustee shall upon request by the Ninth Issuer
Cash Manager forthwith give to the Ninth Issuer Cash Manager such
further powers of attorney or other written authorisations, mandates or
instruments as are necessary to enable the Ninth Issuer Cash Manager to
perform the Ninth Issuer Cash Management Services.
13.3 CHANGE OF NINTH ISSUER SECURITY TRUSTEE
In the event that there is any change in the identity of the Ninth
Issuer Security Trustee or an additional Ninth Issuer Security Trustee
is appointed in accordance with the Ninth Issuer Deed of Charge, the
Ninth Issuer Cash Manager shall execute such documents with any other
parties to this Agreement and take such actions as such new Ninth Issuer
Security Trustee may reasonably require for the purposes of vesting in
such new Ninth Issuer Security Trustee the rights of the Ninth Issuer
Security Trustee under this Agreement and under the Ninth Issuer Deed of
Charge and releasing the retiring Ninth Issuer Security Trustee from
further obligations thereunder and while any of the Ninth Issuer Notes
remains outstanding shall give notice thereof to the Rating Agencies.
13.4 NO OBLIGATION ON NINTH ISSUER SECURITY TRUSTEE
Nothing herein contained shall impose any obligation or liability on the
Ninth Issuer Security Trustee to assume or perform any of the
obligations of the Ninth Issuer or the Ninth Issuer Cash Manager
hereunder or render it liable for any breach thereof.
14. MISCELLANEOUS
14.1 NO SET-OFF
The Ninth Issuer Cash Manager agrees that it will not:
(a) Set-off or purport to set off any amount which either the Ninth
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 Ninth 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 Ninth Issuer Bank Accounts.
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14.2 NO PETITION
The Ninth Issuer Cash Manager agrees that for so long as any Ninth
Issuer Notes are outstanding it will not petition or commence
proceedings for the administration or winding-up of the Ninth Issuer or
participate in any such proceedings with regard thereto or file
documents with the court for the appointment of an administrator in
relation to the Ninth Issuer or serve a notice of intention to appoint
an administrator in relation to the Ninth Issuer.
14.3 NO RECOURSE
(a) In relation to all sums due and payable by the Ninth Issuer to the Ninth
Issuer Cash Manager, the Ninth Issuer Cash Manager agrees that it shall
have recourse only to sums paid to or received by (or on behalf of) the
Ninth Issuer pursuant to the provisions of the Ninth Issuer Transaction
Documents.
(b) For the avoidance of doubt, the Ninth 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 Ninth Issuer or any Receiver
appointed pursuant to the Ninth Issuer Deed of Charge in respect of such
amounts.
(c) Notwithstanding any other provisions of this Agreement, all obligations
to, and rights of, the Ninth 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
Ninth 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 Ninth Issuer, the Ninth Issuer Cash Manager and the Ninth 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;
(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 Ninth Issuer Note
Event of Default, or a Ninth Issuer
14
Cash Manager Termination Event, the protection or enforcement of
any of its rights under any of the Ninth 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 Ninth Issuer or any New
Issuer) to any credit rating agency or any prospective new cash
manager or Ninth 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 5.00pm (London time) 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 Ninth 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, Consumer Risk;
(b) in the case of the Ninth Issuer, to Xxxxxx Financing (No. 9) 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, Consumer Risk; and
(c) in the case of the Ninth Issuer Security Trustee, to The Bank of
New York, 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(facsimile number (00) 00 0000 0000/6399) 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.
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.
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19. ASSIGNMENT
19.1 ASSIGNMENT BY THE NINTH ISSUER
The Ninth Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of
each of the Ninth Issuer Security Trustee and the Ninth Issuer Cash
Manager, except that the Ninth Issuer may assign its respective rights
hereunder without such consent pursuant to the Ninth Issuer Deed of
Charge.
19.2 NO ASSIGNMENT BY NINTH ISSUER CASH MANAGER
The Ninth Issuer Cash Manager may not assign or transfer any of its
rights and obligations under this Agreement without the prior written
consent of the Ninth Issuer and the Ninth 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 and such counterparts, when taken together, shall
constitute one and the same document.
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.
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SCHEDULE 1
THE CASH MANAGEMENT SERVICES
The Ninth Issuer Cash Manager shall:
(a) operate the Ninth Issuer Bank Accounts (and, in respect of the Issuer
Collateral Account, the Ninth Issuer Collateral Ledger) and ensure that
payments are made into and from such accounts in accordance with this
Agreement, the Ninth Issuer Deed of Charge, the Ninth Issuer Bank
Account Agreement and any other relevant Ninth Issuer Transaction
Document, PROVIDED HOWEVER THAT nothing herein shall require the Ninth
Issuer Cash Manager to make funds available to the Ninth 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 Ninth 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 Ninth Issuer or required to be given by the Ninth Issuer pursuant to
the Ninth Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Ninth Issuer under any of
the Ninth Issuer Transaction Documents, PROVIDED THAT such monies are at
the relevant time available to the Ninth Issuer and PROVIDED FURTHER
that nothing herein shall constitute a guarantee by the Ninth Issuer
Cash Manager of all or any of the obligations of the Ninth Issuer under
any of the Ninth Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Ninth
Issuer Corporate Services Provider under the Ninth Issuer Corporate
Services Agreement, keep general books of account and records of the
Ninth 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 Ninth
Issuer Corporate Services Provider under the Ninth Issuer Corporate
Services Agreement, provide or procure the provision of company
secretarial and administration services to the Ninth 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) on behalf of the Ninth Issuer, PROVIDED THAT such monies are at the
relevant time available to the Ninth Issuer, pay all the out-of-pocket
expenses of the Ninth Issuer, incurred by the Ninth Issuer Cash Manager
on behalf of the Ninth Issuer in the performance of the Ninth Issuer
Cash Manager's duties hereunder including without limitation:
(i) all Taxes which may be due or payable by the Ninth 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
17
(iv) all communication expenses including postage, courier and
telephone charges;
(i) with the prior written consent of the Ninth Issuer Security Trustee, the
Ninth Issuer Cash Manager may invest monies standing from time to time
to the credit of the Ninth Issuer Bank Accounts (including, for the
avoidance of doubt, sums standing from time to time to the credit of the
Ninth Issuer Collateral Ledger) in Authorised Investments, subject to
the following provisions:
(i) any such Authorised Investment shall be made in the joint names
of the Ninth Issuer and the Ninth Issuer Security Trustee;
(ii) any costs properly and reasonably incurred in making and
changing Authorised Investments will be reimbursed to the Ninth
Issuer Cash Manager and the Ninth Issuer Security Trustee by the
Ninth Issuer; and
(iii) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Ninth Issuer
Bank Account from which monies were withdrawn to make the
relevant Authorised Investment.
The Ninth Issuer Security Trustee and the Ninth Issuer Cash Manager
shall not be responsible (save where any loss results from the Ninth
Issuer Security Trustee's or the Ninth 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) if necessary, perform all currency conversions free of charge, cost or
expense at the relevant exchange rate;
(k) 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;
(l) for the purposes of any calculations referred to in sub-paragraphs (j)
and (k) 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 any currency amounts used in or resulting
from such calculations will be rounded in accordance with the relevant
market practice;
(m) make all returns and filings required to be made by the Ninth Issuer and
provide or procure the provision of company secretarial and
administration services to the Ninth Issuer; and
(n) arrange payment of all fees to the London Stock Exchange plc or, as
applicable, the UK Listing Authority or, as applicable, the Financial
Services Authority.
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SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. DETERMINATION
(a) On each Ninth Issuer Note Determination Date, the Ninth Issuer Cash
Manager shall determine each of the following in accordance with this
paragraph 1:
(i) the amount of any Ninth Issuer Principal Receipts and Ninth
Issuer Revenue Receipts available as at the following Interest
Payment Date; and
(ii) the Principal Amount Outstanding of the Ninth Issuer Notes, the
Pool Factor, and the Note Principal Payment of the Ninth Issuer
Notes in accordance with the Conditions.
(b) The Ninth 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 Ninth 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
Ninth Issuer Note Determination Date to but excluding the next Interest
Payment Date).
(c) The Ninth Issuer Cash Manager shall notify the Ninth Issuer and the
Ninth Issuer Security Trustee on request of any such other assumptions
and shall take account of any representations made by the Ninth Issuer
and the Ninth Issuer Security Trustee (as the case may be) in relation
thereto.
(d) 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 Ninth 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 NINTH ISSUER REVENUE RECEIPTS
Ninth 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 Ninth
Issuer Account Banks under the Ninth Issuer Bank Account
Agreement pursuant to paragraph (d) below,
in each case until enforcement of the Ninth Issuer Security pursuant to
the Ninth Issuer Deed of Charge or until such time as there are no Ninth
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 NINTH ISSUER PRE-ENFORCEMENT REVENUE PRIORITY OF
PAYMENTS):
(a) firstly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
19
(i) any remuneration then due and payable to the Ninth
Issuer Security Trustee together with interest and any
amount in respect of VAT thereon as provided therein and
any amounts then due and payable or to become due and
payable during the immediately following Interest Period
to the Ninth Issuer Security Trustee under the Ninth
Issuer Deed of Charge;
(ii) any remuneration then due and payable to the Note
Trustee together with interest and any amount in respect
of VAT thereon as provided therein 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 Ninth Issuer Trust
Deed; and
(iii) any remuneration then due and payable to the Agent Bank,
the Paying Agents, the Registrar and the Transfer Agent
together with interest and any amount in respect of VAT
thereon as provided therein 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
Ninth Issuer Paying Agent and Agent Bank Agreement;
(b) secondly, to pay any amounts due and payable by the Ninth Issuer
to third party creditors and incurred without breach by the
Ninth 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 Ninth Issuer during the immediately following
Interest Period and to pay or discharge any liability of the
Ninth Issuer for corporation tax on any chargeable income,
profit or gain of the Ninth 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 Ninth
Issuer Cash Manager together with interest and any
amount in respect of VAT thereon as provided therein 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 Ninth
Issuer Cash Manager under the provisions of the Ninth
Issuer Cash Management Agreement;
(ii) any remuneration then due and payable to the Ninth
Issuer Corporate Services Provider together with
interest and any amount in respect of VAT thereon as
provided therein 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 Ninth Issuer Corporate Services Provider under
the Ninth Issuer Corporate Services Agreement; and
(iii) any remuneration then due and payable to the Ninth
Issuer Account Banks together with interest and any
amount in respect of VAT thereon as provided therein 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 Ninth
Issuer Account Banks under the Ninth Issuer Bank Account
Agreement;
(d) fourthly, to pay in no order of priority between them and pro
rata according to the respective amounts thereof of:
20
(i) those amounts due and payable by the Ninth 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 Ninth Issuer following a Ninth Issuer Swap Provider
Default by the Series 1 Class A Dollar Currency Swap
Provider or a Ninth Issuer Downgrade Termination Event),
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 Ninth Issuer Notes;
(ii) those amounts due and payable by the Ninth 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 Ninth Issuer following a Ninth Issuer Swap Provider
Default by the Series 2 Class A Dollar Currency Swap
Provider or a Ninth Issuer Downgrade Termination Event),
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 Ninth Issuer Notes;
(iii) those amounts due and payable by the Ninth Issuer to the
Series 3 Class A1 Euro Currency Swap Provider pursuant
to the Series 3 Class A1 Euro Currency Swap Agreement
(except for any termination payment due and payable by
the Ninth Issuer following a Ninth Issuer Swap Provider
Default by the Series 3 Class A1 Euro Currency Swap
Provider or a Ninth Issuer Downgrade Termination
Payment) and from the proceeds received from the Series
3 Class A1 Euro Currency Swap Provider interest due and
payable by the Ninth Issuer on the Series 3 Class A1
Ninth Issuer Notes; and
(iv) interest due and payable by the Ninth Issuer on the
Series 3 Class A2 Ninth Issuer Notes;
(v) interest due and payable by the Ninth Issuer or the
Series 4 Class A Ninth Issuer Notes
(vi)
(e) fifthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) any termination payments due and payable by the Ninth
Issuer under the Series 1 Class A Dollar Currency Swap
Agreement, following the occurrence
21
of a Ninth Issuer Swap Provider Default by the Series 1
Class A Dollar Currency Swap Provider or a Ninth Issuer
Downgrade Termination Payment;
(ii) any termination payments due and payable by the Ninth
Issuer under the Series 2 Class A Dollar Currency Swap
Agreement, following the occurrence of a Ninth Issuer
Swap Provider Default by the Series 2 Class A Dollar
Currency Swap Provider or a Ninth Issuer Downgrade
Termination Payment; and
(iii) any termination payments due and payable by the Ninth
Issuer under the Series 3 Class A1 Euro Currency Swap
Agreement, following the occurrence of a Ninth Issuer
Swap Provider Default by the Series 3 Class A1 Euro
Currency Swap Provider or a Ninth Issuer Downgrade
Termination Payment;
(iv)
(v)
(f) sixthly, to pay the Ninth Issuer an amount equal to 0.01 per
cent. of the interest received on the Ninth Issuer Term Advances
to be retained by the Ninth Issuer as profit; and
(g) sevently, to pay to shareholders of the Ninth Issuer any
dividend declared by the Ninth Issuer.
4. PRIORITY OF PAYMENTS FOR NINTH ISSUER PRINCIPAL RECEIPTS
Subject to Condition 5 of the Ninth Issuer Notes, until enforcement of
the Ninth Issuer Security pursuant to the Ninth Issuer Deed of Charge or
until such time as there are no Ninth Issuer Notes outstanding, Ninth
Issuer Principal Receipts will be applied to repay the Ninth Issuer
Notes as follows:
(i) the Series 1 Class A Ninth Issuer Notes shall be redeemed on the
Interest Payment Date falling in [December 2006] in an amount
equal to the amount, if any, repaid in respect of the Ninth
Issuer Series 1 Term AAA Advance, converted into Dollars at the
relevant Dollar Currency Swap Rate;
(ii) the Series 2 Class A Ninth 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
Ninth Issuer Series 2 Term AAA Advance, converted into Dollars
at the relevant Dollar Currency Swap Rate;
(iii)
(iv) the Series 3 Class A2 Ninth 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
Ninth Issuer Series 3A2 Term AAA Advance;
(v) the Series 3 Class A1 Ninth 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
22
in respect of the Ninth Issuer Series 3A1 Term AAA Advance,
converted into Euros at the Euro Currency Swap Rate; and
(vi) the Series 4 Class A Ninth 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
Ninth Issuer Series 4A Term AAA Advance.
(vii)
5. RECORDS
In addition, the Ninth 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 Agreement.
23
SCHEDULE 3
FORM OF NINTH ISSUER QUARTERLY REPORT
XXXXXX FINANCING (NO. 9) PLC
PROFIT & LOSS ACCOUNT
PERIOD ENDED
THIS QUARTER PRIOR QUARTER
[POUND] [POUND]
----------------------------
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
============================
24
XXXXXX FINANCING (NO. 9) PLC
BALANCE SHEET
PERIOD ENDED
[POUND] [POUND]
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
25
XXXXXX FINANCING (NO.PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A1 SERIES 3 CLASS A2 SERIES 4 CLASS A
Xxxxx'x Current Rating P -1 Aaa Aaa Aaa Aaa
Fitch Current Rating F1 AAA AAA AAA AAA
S&P Current Rating A-1+ AAA AAA AAA AAA
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A1 SERIES 3 CLASS A2 SERIES 4 CLASS A
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note
Principal
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A1 SERIES 3 CLASS A2 SERIES 4 CLASS A
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A1 SERIES 3 CLASS A2 SERIES 4 CLASS A
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
26
SIGNATORIES
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 9) PLC )
SIGNED for and on behalf of )
THE BANK OF NEW YORK, LONDON BRANCH )
27
