Exhibit 4.9
DATED ___ October, 2002
ABBEY NATIONAL PLC
(the Sixth Issuer Cash Manager)
and
XXXXXX FINANCING (NO. 6) PLC
(the Sixth Issuer)
and
THE BANK OF NEW YORK
(the Sixth Issuer Security Trustee)
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SIXTH ISSUER CASH MANAGEMENT AGREEMENT
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XXXXX & OVERY
London
ICM:572259.1
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation...........................................1
2. Appointment of Sixth Issuer Cash Manager.................................2
3. The Sixth Issuer Cash Management Services................................2
4. Payments, Accounts, Ledgers..............................................3
5. Payments under Sixth Issuer Currency swaps and Termination
of Sixth Issuer Currency Swaps.........................................5
6. No Liability.............................................................7
7. Costs and Expenses.......................................................7
8. Information..............................................................7
9. Remuneration.............................................................9
10. Covenants of Sixth Issuer Cash Manager...................................9
11. Sixth 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..........................................................16
19. Assignment..............................................................16
20. Exclusion of Third Party Rights.........................................16
21. Counterparts............................................................16
22. Governing Law...........................................................16
SCHEDULES
1. The Cash Management Services............................................17
2. Cash Management and Maintenance of Ledgers..............................19
3. Form of Issuer Quarterly Report.........................................29
SIGNATORIES..................................................................33
THIS SIXTH ISSUER CASH MANAGEMENT AGREEMENT is made on ___ October, 2002
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, Xxxxxxx Xxxxx, Xxxxxx XX0 0XX in its capacity as cash
manager (the "SIXTH 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. 6) PLC (registered number 4359738) a public limited
company incorporated under the laws of England and Wales whose registered
office is at Abbey National House, 2 Triton Square, Regents Place, London
NW1 3AN (the "SIXTH 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 "SIXTH 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 Sixth Issuer Deed of Charge and the Sixth Issuer Trust Deed).
WHEREAS:
(A) On the Sixth Issuer Closing Date the Sixth Issuer will issue the Sixth
Issuer Notes. From the proceeds of the issue of the Sixth Issuer Notes,
the Sixth Issuer shall make the Sixth Issuer Term Advances to Funding.
(B) The Sixth Issuer Cash Manager is willing to provide cash management
services to the Sixth Issuer and the Sixth 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 Sixth Issuer Master Definitions and Construction Schedule, both signed
for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx and May
on ___ October, 2002 (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 Sixth 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
Sixth Issuer Master Definitions and Construction Schedule. In the event of
a conflict between the Amended and Restated Master Definitions and
Construction Schedule and the Sixth Issuer Master Definitions and
Construction Schedule, the Sixth Issuer Master Definitions and
Construction Schedule shall prevail.
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2. APPOINTMENT OF SIXTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to CLAUSE 12, the Sixth Issuer and the Sixth
Issuer Security Trustee (according to their respective estates and
interests) each hereby appoints the Sixth Issuer Cash Manager as its
lawful agent to provide the Sixth Issuer Cash Management Services set out
in this Agreement, including in relation to the Sixth Issuer Notes to be
issued by the Sixth Issuer. The Sixth 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 Sixth 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 SIXTH ISSUER NOTES
The appointment pursuant to CLAUSE 2.1 is conditional upon the issue of
the Sixth Issuer Notes and shall take effect upon and from the Sixth
Issuer Closing Date automatically without any further action on the part
of any person PROVIDED THAT if the issue of the Sixth Issuer Notes has not
occurred by ___ October, 2002, or such later date as the Sixth Issuer and
the Lead Manager may agree, this Agreement shall cease to be of further
effect.
3. THE SIXTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Sixth Issuer Cash Manager shall provide the services set out in this
Agreement (including, without limitation, the SCHEDULES) (the "SIXTH
ISSUER CASH MANAGEMENT SERVICES").
3.2 APPROVALS AND AUTHORISATIONS
The Sixth Issuer Cash Manager shall maintain, or procure the maintenance
of, the approvals, authorisations, consents and licences required in
connection with the business of the Sixth Issuer and shall prepare and
submit, or procure the preparation and submission of, on behalf of the
Sixth 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 Sixth Issuer and shall, so far as it
reasonably can do so, perform the Sixth 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 Sixth Issuer Cash Management Services shall include procuring (so far
as the Sixth Issuer Cash Manager, using its reasonable endeavours, is able
so to do) compliance by the Sixth Issuer with all applicable legal
requirements and with the terms of the Sixth Issuer Transaction Documents,
PROVIDED ALWAYS THAT the Sixth Issuer Cash Manager shall
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not lend or provide any sum to the Sixth Issuer and that the Sixth Issuer
Cash Manager shall have no liability whatsoever to the Sixth Issuer, the
Sixth Issuer Security Trustee or any other person for any failure by the
Sixth Issuer to make any payment due by any of them under any of the Sixth
Issuer Transaction Documents (other than to the extent arising from any
failure by the Sixth Issuer Cash Manager to perform any of its obligations
under any of the Transaction Documents).
3.4 LIABILITY OF SIXTH ISSUER CASH MANAGER
(a) The Sixth Issuer Cash Manager shall indemnify each of the Sixth Issuer and
the Sixth 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 Sixth Issuer
Cash Manager in carrying out its functions as Sixth Issuer Cash Manager
under, or as a result of a breach by the Sixth Issuer Cash Manager of, the
terms and provisions of this Agreement or such other Transaction Documents
to which the Sixth Issuer Cash Manager is a party (in its capacity as
such) in relation to such functions.
(b) For the avoidance of doubt, the Sixth Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or damage
suffered or incurred by the Sixth Issuer or the Sixth Issuer Security
Trustee and/or any other person as a result of the proper performance of
the Sixth Issuer Cash Management Services by the Sixth 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 Sixth Issuer Cash Manager under, or as a result of a breach
by the Sixth Issuer Cash Manager of, the terms and provisions of this
Agreement or any of the other Transaction Documents to which the Sixth
Issuer Cash Manager is a party (in its capacity as such) in relation to
such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 SIXTH ISSUER BANK ACCOUNT
(a) The Sixth Issuer Cash Manager hereby confirms that the Sixth Issuer
Transaction Accounts have been established on or before the date hereof
and that mandates in the agreed form will apply thereto at the Sixth
Issuer Closing Date. The Sixth Issuer Cash Manager undertakes (to the
extent to which the same is within its control in its capacity as Sixth
Issuer Cash Manager) that at the Sixth Issuer Closing Date the Sixth
Issuer Transaction Accounts will be operative and that the Sixth Issuer
Cash Manager will not knowingly create or permit to subsist any Security
Interest in relation to the Sixth Issuer Transaction Accounts other than
as created under or permitted pursuant to the Sixth Issuer Deed of Charge.
(b) The Sixth Issuer Cash Manager shall procure that the following amounts are
paid into the Sixth Issuer Transaction Accounts:
(i) all amounts of interest paid on the Sixth Issuer Term Advances;
(ii) all repayments of principal on the Sixth Issuer Term Advances;
(iii) all amounts received by the Sixth Issuer pursuant to the Dollar
Currency Swap Agreements, the Euro Currency Swap Agreements, and the
Swiss Franc Currency Swap Agreement;
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(iv) all Liquidity Drawings; and
(v) any other amounts whatsoever received by or on behalf of the Sixth
Issuer after the Sixth Issuer Closing Date,
and the Sixth Issuer Cash Manager shall procure that all interest earned
on the Sixth Issuer Transaction Accounts and all investment proceeds from
Authorised Investments purchased from amounts standing to the credit of
the Sixth Issuer Bank Accounts are credited to such account. All amounts
received by the Sixth Issuer denominated (i) in Sterling shall be paid
into the Sixth Issuer Sterling Transaction Account; (ii) in Dollars shall
be paid into the Sixth Issuer Dollar Account; (iii) in Euro shall be paid
into the Sixth Issuer Euro Account; and (iv) in Swiss Francs shall be paid
into the Fifth Issuer Swiss Franc Account.
(c) Each of the payments into the Sixth Issuer Transaction Accounts referred
to in CLAUSE 4.1(B) shall be made forthwith upon receipt by the Sixth
Issuer or the Sixth 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 Sixth Issuer Cash Manager may, and shall,
withdraw Cash from the Sixth 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 Sixth Issuer Cash Manager shall promptly notify each of the Sixth
Issuer and the Sixth Issuer Security Trustee of any additional account
which supplements or replaces any account specifically referred to in the
definition of the "Sixth Issuer Transaction Accounts" in the Sixth Issuer
Master Definitions and Construction Schedule.
(f) Each of the Sixth Issuer Cash Manager and the Sixth Issuer undertakes
that, so far as it is able to procure the same, the Sixth 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 Sixth Issuer Bank Account Agreement, be changed without prior written
consent of the Sixth Issuer Security Trustee (such consent not to be
unreasonably withheld or delayed). For the avoidance of doubt, the Sixth
Issuer Cash Manager may change the authorised signatories in respect of
any instructions or mandates, without the prior written consent of the
Sixth Issuer Security Trustee, in accordance with the terms of the Sixth
Issuer Bank Account Agreement.
4.2 WITHDRAWALS
(a) The Sixth Issuer Cash Manager may make withdrawals on behalf of the Sixth
Issuer from the Sixth Issuer Transaction Accounts, but only until receipt
of a copy of a Sixth Issuer Note Enforcement Notice served by the Sixth
Issuer Security Trustee on the Sixth Issuer, as permitted by this
Agreement but shall not in carrying out its functions as Sixth Issuer Cash
Manager under this Agreement otherwise make withdrawals from the Sixth
Issuer Transaction Accounts.
(b) Upon receipt of such a Sixth Issuer Note Enforcement Notice, no amount
shall be withdrawn from the Sixth Issuer Transaction Accounts by the Sixth
Issuer Cash Manager without the prior written consent of the Sixth Issuer
Security Trustee.
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4.3 CASH MANAGEMENT
In administering the Sixth Issuer Transaction Accounts on behalf of the
Sixth Issuer and the Sixth Issuer Security Trustee, the Sixth Issuer Cash
Manager shall comply with the provisions of SCHEDULE 2 prior to receipt by
the Sixth Issuer Cash Manager of a copy of any Sixth Issuer Note
Enforcement Notice served on the Sixth Issuer. Following service of a
Sixth Issuer Note Enforcement Notice, the Sixth Issuer Security Trustee or
any Receiver appointed by the Sixth Issuer Security Trustee will
administer the Sixth Issuer Transaction Accounts in accordance with the
terms of the Sixth Issuer Deed of Charge.
5. PAYMENTS UNDER SIXTH ISSUER CURRENCY SWAPS AND TERMINATION OF SIXTH ISSUER
CURRENCY SWAPS
5.1 Subject to the order of priorities of payment set out in this Sixth Issuer
Cash Management Agreement or, as the case may be, the Sixth Issuer Deed of
Charge, on each Interest Payment Date, the Sixth Issuer, or the Sixth
Issuer Cash Manager on its behalf, will pay amounts received in respect of
the Sixth Issuer Series 1 Term Advances (after making payments ranking
higher in the order or priority of payments) to the relevant Dollar
Currency Swap Providers. Amounts received from the relevant Dollar
Currency Swap Providers will be applied to pay amounts due to the holders
of the relevant classes of Series 1 Sixth Issuer Notes in accordance with
the Sixth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Sixth Issuer Post-Enforcement Priority of Payments.
5.2 Subject to the order or priorities of payment set out in this Sixth Issuer
Cash Management Agreement or, as the case may be, the Sixth Issuer Deed of
Charge, on each Interest Payment Date, the Sixth Issuer, or the Sixth
Issuer Cash Manager on its behalf, will pay amounts received in respect of
the Sixth Issuer Series 2 Term AAA Advance, the Sixth Issuer Series 2 Term
AA Advance and the Sixth Issuer Series 2 Term BBB Advance (after making
payments ranking higher in the order or priority of payments) to the
relevant Dollar Currency Swap Providers. Amounts received from the
relevant Dollar Currency Swap Providers will be applied to pay amounts due
to the holders of the relevant classes of Series 2 Class A Sixth Issuer
Notes, the Series 2 Class B Sixth Issuer Notes and the Series 2 Class C
Sixth Issuer Notes in accordance with the Sixth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Sixth Issuer
Post-Enforcement Priority of Payments.
5.3 Subject to the order of priorities of payment set out in this Sixth Issuer
Cash Management Agreement or, as the case may be, the Sixth Issuer Deed of
Charge, on each Interest Payment Date, the Sixth Issuer, or the Sixth
Issuer Cash Manager on its behalf, will pay amounts received in respect of
the Sixth Issuer Series 3 Term AAA Advance, the Sixth Issuer Series 3 Term
AA Advance and the Sixth Issuer Series 3 Term BBB 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 Sixth Issuer Notes, the Series 3 Class B Sixth Issuer
Notes and the Series 3 Class C Sixth Issuer Notes in accordance with the
Sixth Issuer Pre-Enforcement Priority of Payments or, as the case may be,
the Sixth Issuer Post-Enforcement Priority of Payments.
5.4 Subject to the order of priorities of payment set out in this Sixth Issuer
Cash Management Agreement or, as the case may be, the Sixth Issuer Deed of
Charge, on each Interest Payment Date, the Sixth Issuer, or the Sixth
Issuer Cash Manager on its behalf, will pay amounts received in respect of
the Sixth Issuer Series 4A1 Term AAA Advance, the Sixth Issuer Series 4
Term AA Advance and the Sixth Issuer Series 4 Term BBB Advance (after
making
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payments ranking higher in the order or priority of payments) to the Euro
Currency Swap Provider and will pay amounts received in respect of the
Series 4A2 Term AAA Advance to the Swiss Franc 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 4 Class A1 Sixth
Issuer Notes, the Series 4 Class B Sixth Issuer Notes and the Series 4
Class C Sixth Issuer Notes and amounts received from the Swiss Franc
Currency Swap Provider will be applied to pay amounts due to the holders
of the Series 4 Class A2 Sixth Issuer Notes in accordance with the Sixth
Issuer Pre-Enforcement Priority of Payments or, as the case may be, the
Sixth Issuer Post-Enforcement Priority of Payments.
5.5 Subject to the order of priorities of payment set out in this Sixth Issuer
Cash Management Agreement or, as the case may be, the Sixth Issuer Deed of
Charge, on each Interest Payment Date, the Sixth Issuer, or the Sixth
Issuer Cash Manager on its behalf, will pay amounts received in respect of
the Sixth Issuer Series 5 Term AAA Advance, the Sixth Issuer Series 5 Term
AA Advance and the Sixth Issuer Series 5 Term BBB Advance (after making
payments ranking higher in the order or priority of payments) to the
holders of the Series 5 Class A Sixth Issuer Notes, the Series 5 Class B
Sixth Issuer Notes and the Series 5 Class C Sixth Issuer Notes in
accordance with the Sixth Issuer Pre-Enforcement Priority of Payments or,
as the case may be, the Sixth Issuer Post-Enforcement Priority of
Payments.
5.6 If on or prior to the date of the earlier of (i) repayment in full of the
Sixth Issuer Notes or (ii) the service of a Sixth Issuer Note Enforcement
Notice, any of the Dollar Currency Swaps, Euro Currency Swaps or Swiss
Franc Currency Swap is terminated, the Sixth Issuer Cash Manager (on
behalf of the Sixth Issuer and the Sixth Issuer Security Trustee) shall
purchase a replacement hedge in respect of the relevant class of Sixth
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 Sixth Issuer
Notes and/or (ii) LIBOR for three-month Dollar deposits in relation to the
Series 1 Class B Sixth Issuer Notes, the Series 1 Class C Sixth Issuer
Notes, the Series 2 Class A Sixth Issuer Notes, the Series 2 Class B Sixth
Issuer Notes, the Series 2 Class C Sixth Issuer Notes, the Series 4 Class
A1 Sixth Issuer Notes, the Series 4 Class B Sixth Issuer Notes and the
Series 4 Class C Sixth 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 3 Class A Sixth Issuer Notes, the Series 3 Class B
Sixth Issuer Notes and the Series 3 Class C Issuer Notes or (c) the
relevant currency swap rate between Swiss Franc and Sterling or the
possible variance between LIBOR for three-month Sterling deposits and a
fixed rate of interest in relation to the Series 4 Class A2 Sixth Issuer
Notes up to and including the Interest Payment Date in October 2007 and,
thereafter, LIBOR for three-month Swiss Franc deposits and, in each case,
on terms acceptable to the Rating Agencies and the Sixth Issuer and the
Sixth Issuer Security Trustee and with a swap provider whom the Rating
Agencies have previously confirmed in writing to the Sixth Issuer and the
Sixth Issuer Security Trustee will not cause the then current ratings of
the Sixth Issuer Notes to be downgraded. The Sixth Issuer may apply any
early termination payment received from the relevant Dollar Currency Swap
Provider, Euro Currency Swap Provider or Swiss Franc Currency Swap
Provider, for such purpose.
5.7 If the Sixth Issuer receives a Refund Payment (as defined in "Sixth Issuer
Revenue Receipts") then the Sixth Issuer, or the Sixth Issuer Cash Manager
on its behalf, will pay over an amount equal to such Refund Payment to the
relevant Sixth Issuer Swap Provider upon receipt.
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6. NO LIABILITY
Save as otherwise provided in this Agreement, the Sixth Issuer Cash
Manager shall have no liability for the obligations of either the Sixth
Issuer Security Trustee or the Sixth Issuer under any of the Transaction
Documents or otherwise and nothing herein shall constitute a guarantee, or
similar obligation, by the Sixth Issuer Cash Manager of either Funding,
the Sixth Issuer Security Trustee or the Sixth Issuer in respect of any of
them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Sixth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Sixth Issuer
Post-Enforcement Priority of Payments the Sixth Issuer will on each
Interest Payment Date reimburse the Sixth 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 Sixth
Issuer Cash Manager in the performance of the Sixth Issuer Cash Management
Services including any such costs, expenses or charges not reimbursed to
the Sixth Issuer Cash Manager on any previous Interest Payment Date and
the Sixth Issuer Cash Manager shall supply the Sixth Issuer with an
appropriate VAT invoice issued by the Sixth Issuer Cash Manager or, if the
Sixth 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 Sixth Issuer Cash Manager represents and warrants that at the date
hereof in respect of the software which is to be used by the Sixth Issuer
Cash Manager in providing the Sixth 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 Sixth 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 Sixth 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.
(c) The Sixth Issuer Cash Manager shall use reasonable endeavours to maintain
in working order the information technology systems used by the Sixth
Issuer Cash Manager in providing the Sixth Issuer Cash Management
Services.
(d) The Sixth 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 Sixth Issuer
elects as a substitute cash manager in accordance
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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 Sixth Issuer Cash Manager shall take all reasonable steps to ensure
that it receives a monthly bank statement in relation to each of the Sixth
Issuer Bank Accounts and that it furnishes a copy of such statements to
the Sixth Issuer and the Sixth Issuer Security Trustee.
8.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Sixth Issuer Cash Manager shall permit
the Auditors of the Sixth Issuer and any other person nominated by the
Sixth Issuer Security Trustee, (to whom the Sixth 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
Sixth Issuer Cash Management Services provided by the Sixth Issuer Cash
Manager and related matters in accordance with this Agreement.
8.4 STATUTORY OBLIGATIONS
The Sixth Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Sixth Issuer, to prepare or procure the preparation of and
file all reports, annual returns, financial statements, statutory forms
and other returns which the Sixth Issuer is required by law to prepare and
file. Subject to approval thereof by the directors of the Sixth Issuer,
the Sixth 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 Sixth Issuer Security Trustee,
the Sixth Issuer and the Rating Agencies as soon as practicable after the
end of each accounting reference period of the Sixth Issuer.
8.5 INFORMATION COVENANTS
(a) The Sixth Issuer Cash Manager shall provide the Sixth Issuer, the Sixth
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 Sixth Issuer. Such quarterly report shall be delivered to
the Sixth Issuer, the Sixth Issuer Security Trustee, the Seller and the
Rating Agencies by the last Business Day of the month in which each
Interest Payment Date occurs.
(b) The Sixth Issuer Cash Manager shall provide, or procure the provision of,
to the Sixth Issuer, the Sixth 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 Sixth Issuer Cash Manager shall notify the Rating Agencies in writing
of the details of (i) any material amendment to the Sixth Issuer
Transaction Documents to which the Sixth Issuer is a party; (ii) the
occurrence of a Sixth Issuer Note Event of Default; and (iii) any other
information relating to the Sixth 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 Sixth Issuer Cash Manager's day-to-day provision of the Sixth
Issuer Cash Management Services under the other terms of this Agreement.
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(d) The Sixth Issuer Cash Manager shall, at the request of the Sixth Issuer
Security Trustee, furnish the Sixth 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 Sixth Issuer Security
Trustee to request in connection with this Agreement, PROVIDED THAT the
Sixth Issuer Security Trustee shall not make such a request more than once
every three months unless, in the belief of the Sixth Issuer Security
Trustee, a Sixth Issuer Intercompany Loan Event of Default, Sixth Issuer
Note Event of Default or Sixth 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 Sixth Issuer Cash Manager's
day-to-day provision of the Sixth Issuer Cash Management Services under
the other terms of this Agreement.
9. REMUNERATION
9.1 FEE PAYABLE
The Sixth Issuer shall pay to the Sixth Issuer Cash Manager for its
services hereunder a cash management fee which shall be agreed in writing
between the Sixth Issuer, the Sixth Issuer Security Trustee and the Sixth
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
Sixth Issuer Cash Manager in arrear on each Interest Payment Date in the
manner contemplated by and in accordance with the provisions of the Sixth
Issuer Pre-Enforcement Revenue Priority of Payments or, as the case may
be, the Sixth Issuer Post-Enforcement Priority of Payments.
10. COVENANTS OF SIXTH ISSUER CASH MANAGER
10.1 COVENANTS
The Sixth Issuer Cash Manager hereby covenants with and undertakes to each
of the Sixth Issuer and the Sixth 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 Sixth Issuer or the Sixth 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 Sixth
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 Sixth 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 Sixth Issuer Cash
Management Services;
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(d) save as otherwise agreed with the Sixth Issuer and the Sixth Issuer
Security Trustee, it will provide free of charge to the Sixth Issuer
during normal office hours office space, facilities, equipment and
staff sufficient to fulfil the obligations of the Sixth Issuer under
this Agreement;
(e) it will not knowingly fail to comply with any legal requirements in
the performance of the Sixth 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 Sixth Issuer
Security Trustee amend or terminate any of the Sixth Issuer
Transaction Documents save in accordance with their terms.
10.2 DURATION OF COVENANTS
The covenants of the Sixth 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 Sixth Issuer and/or the Sixth Issuer Security
Trustee arising from breach of any such covenant prior to the date of
termination of this Agreement.
11. SIXTH ISSUER CASH MANAGEMENT SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Sixth 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
Sixth Issuer or the Sixth Issuer Security Trustee.
12. TERMINATION
12.1 SIXTH ISSUER CASH MANAGER TERMINATION EVENTS
If any of the following events ("SIXTH ISSUER CASH MANAGER TERMINATION
EVENTS") shall occur:
(a) default is made by the Sixth 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 Sixth Issuer
Cash Manager becoming aware of such default and receipt by the Sixth
Issuer Cash Manager of written notice from the Sixth Issuer or the
Sixth Issuer Security Trustee, as the case may be, requiring the
same to be remedied; or
(b) default is made by the Sixth 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 Sixth Issuer
Security Trustee is materially prejudicial to the interests of the
Sixth Issuer Secured Creditors and such default continues unremedied
for a period of twenty days after the earlier of the Sixth Issuer
Cash Manager becoming aware of such default and receipt by the Sixth
Issuer Cash Manager of written notice from the Sixth Issuer Security
Trustee requiring the same to be remedied; or
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(c) while the Sixth Issuer Cash Manager is the Seller, an Insolvency
Event occurs,
then the Sixth Issuer Security Trustee may at once or at any time
thereafter while such default continues by notice in writing to the Sixth
Issuer Cash Manager terminate its appointment as Sixth 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 SIXTH ISSUER CASH MANAGER
The appointment of the Sixth Issuer Cash Manager under this Agreement may
be terminated upon the expiry of not less than 12 months' notice of
termination given by the Sixth Issuer Cash Manager to the Sixth Issuer and
the Sixth Issuer Security Trustee PROVIDED THAT:
(a) the Sixth Issuer and the Sixth 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 Sixth Issuer and the Sixth 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 Sixth Issuer and the Sixth
Issuer Security Trustee and the Sixth 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 Sixth Issuer under such
agreement are charged in favour of the Sixth Issuer Security Trustee
on terms satisfactory to the Sixth Issuer Security Trustee; and
(e) the then current ratings (if any) of the Sixth Issuer Notes are not
adversely affected as a result thereof, unless otherwise agreed by
an Extraordinary Resolution (as defined in the Sixth Issuer Trust
Deed) of the holders of the Class A Sixth Issuer Notes, the Class B
Sixth Issuer Notes and the Class C Sixth Issuer Notes.
12.3 EFFECT OF TERMINATION
(a) On and after termination of the appointment of the Sixth Issuer Cash
Manager under this Agreement pursuant to this CLAUSE 12, all authority and
power of the Sixth Issuer Cash Manager under this Agreement shall be
terminated and be of no further effect and the Sixth Issuer Cash Manager
shall not thereafter hold itself out in any way as the agent of the Sixth
Issuer or the Sixth Issuer Security Trustee pursuant to this Agreement.
(b) Upon termination of the appointment of the Sixth Issuer Cash Manager under
this Agreement pursuant to this CLAUSE 12, the Sixth Issuer Cash Manager
shall:
(i) forthwith deliver (and in the meantime hold on trust for, and to the
order of, the Sixth Issuer or the Sixth Issuer Security Trustee, as
the case may be) to the Sixth Issuer or the Sixth Issuer Security
Trustee, as the case may be or as it shall direct, all books of
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account, papers, records, registers, correspondence and documents in
its possession or under its control relating to the affairs of or
belongings of the Sixth Issuer or the Sixth Issuer Security Trustee,
as the case may be, (if practicable, on the date of receipt) any
monies then held by the Sixth Issuer Cash Manager on behalf of the
Sixth Issuer, the Sixth Issuer Security Trustee and any other assets
of the Sixth Issuer and the Sixth Issuer Security Trustee;
(ii) take such further action as the Sixth Issuer or the Sixth Issuer
Security Trustee, as the case may be, may reasonably direct at the
expense of the Sixth Issuer or the Sixth Issuer Security Trustee, as
the case may be (including in relation to the appointment of a
substitute cash manager) provided that the Sixth 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 Sixth Issuer or the Sixth
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 Sixth Issuer or the Sixth Issuer Security
Trustee or such nominee, as the case may be.
12.4 NOTICE OF EVENT OF DEFAULT
The Sixth Issuer Cash Manager shall deliver to the Sixth Issuer and the
Sixth Issuer Security Trustee as soon as reasonably practicable but in any
event within three Business Days of becoming aware thereof a notice of any
Sixth Issuer Cash Manager Termination Event or any Sixth 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 Sixth Issuer Cash
Manager Termination Event or Sixth 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 Sixth Issuer Cash
Manager under this Agreement shall be without prejudice to the liabilities
of the Sixth Issuer and the Sixth Issuer Security Trustee to the Sixth
Issuer Cash Manager or vice versa incurred before the date of such
termination. The Sixth 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 Sixth Issuer or the Sixth Issuer Security Trustee.
(b) This Agreement shall terminate at such time as the Sixth Issuer Secured
Obligations have been fully discharged.
(c) On termination of the appointment of the Sixth Issuer Cash Manager under
the provisions of this CLAUSE 12, the Sixth 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 Sixth Issuer shall pay such monies so
receivable by the Sixth Issuer Cash Manager in accordance with the Sixth
Issuer Pre-Enforcement Revenue
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Priority of Payments or, as the case may be, the Sixth 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 Sixth Issuer Cash Manager's rights to
receive payment of all amounts (if any) due to it from the Sixth 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 13.1, the Sixth Issuer and
the Sixth Issuer Security Trustee shall upon request by the Sixth Issuer
Cash Manager forthwith give to the Sixth Issuer Cash Manager such further
powers of attorney or other written authorisations, mandates or
instruments as are necessary to enable the Sixth Issuer Cash Manager to
perform the Sixth Issuer Cash Management Services.
13.3 CHANGE OF SIXTH ISSUER SECURITY TRUSTEE
In the event that there is any change in the identity of the Sixth Issuer
Security Trustee or an additional Sixth Issuer Security Trustee is
appointed in accordance with the Sixth Issuer Deed of Charge the Sixth
Issuer Cash Manager shall execute such documents with any other parties to
this Agreement and take such actions as such new Sixth Issuer Security
Trustee may reasonably require for the purposes of vesting in such new
Sixth Issuer Security Trustee the rights of the Sixth Issuer Security
Trustee under this Agreement and under the Sixth Issuer Deed of Charge and
releasing the retiring Sixth Issuer Security Trustee from further
obligations thereunder and while any of the Sixth Issuer Notes remains
outstanding shall give notice thereof to the Rating Agencies.
13.4 NO OBLIGATION ON SIXTH ISSUER SECURITY TRUSTEE
Nothing herein contained shall impose any obligation or liability on the
Sixth Issuer Security Trustee to assume or perform any of the obligations
of the Sixth Issuer or the Sixth Issuer Cash Manager hereunder or render
it liable for any breach thereof.
14. MISCELLANEOUS
14.1 NO SET-OFF
The Sixth Issuer Cash Manager agrees that it will not:
(a) set off or purport to set off any amount which either the Sixth 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 Sixth Issuer Bank Accounts; or
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(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 standing to the credit of the
Sixth Issuer Bank Accounts.
14.2 NO PETITION
The Sixth Issuer Cash Manager agrees that for so long as any Sixth Issuer
Notes are outstanding it will not petition or commence proceedings for the
administration or winding up of the Sixth 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 Sixth Issuer to the Sixth
Issuer Cash Manager, the Sixth Issuer Cash Manager agrees that it shall
have recourse only to sums paid to or received by (or on behalf of) the
Sixth Issuer pursuant to the provisions of the Sixth Issuer Transaction
Documents.
(b) For the avoidance of doubt, the Sixth 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 Sixth Issuer, or any Receiver appointed pursuant
to the Sixth Issuer Deed of Charge in respect of such amounts.
(c) Notwithstanding any other provisions of this Agreement, all obligations
to, and rights of, the Sixth 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 Sixth
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 Sixth Issuer, the Sixth Issuer Cash Manager and the Sixth 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
15
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);
(e) to the extent that the recipient needs to disclose the same for
determining the existence of, or declaring, a Sixth Issuer Note
Event of Default, or a Sixth Issuer Cash Manager Termination Event,
the protection or enforcement of any of its rights under any of the
Sixth 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 Sixth Issuer or any New
Issuer) to any credit rating agency or any prospective new cash
manager or Sixth 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 Sixth Issuer Cash Manager, to Abbey National plc
at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx XX0
0XX (facsimile number (44) 20 [_]) for the attention of the Company
Secretary with a copy to Abbey National plc, c/o Abbey House ([_]),
000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (44)
1908 [_]) for the attention of the Securitisation Team, Risk
Operations;
(b) in the case of the Sixth Issuer, to Xxxxxx Financing (No. 6) PLC at
Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx, XX0
0XX (facsimile number (44) 20 [_]) for the attention of the Company
Secretary with a copy to Abbey National plc c/o Abbey House ([_]),
000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (44)
1908 [_]) for the attention of Securitisation Team, Risk Operations;
and
(c) in the case of the Sixth Issuer Security Trustee, to The Bank of Xxx
Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number ____) for
the attention of ____,
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
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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 SIXTH ISSUER
The Sixth Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of each
of the Sixth Issuer Security Trustee and the Sixth Issuer Cash Manager,
except that the Sixth Issuer may assign its respective rights hereunder
without such consent pursuant to the Sixth Issuer Deed of Charge.
19.2 NO ASSIGNMENT BY SIXTH ISSUER CASH MANAGER
The Sixth Issuer Cash Manager may not assign or transfer any of its rights
and obligations under this Agreement without the prior written consent of
the Sixth Issuer and the Sixth 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.
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SCHEDULE 1
THE CASH MANAGEMENT SERVICES
The Sixth Issuer Cash Manager shall:
(a) operate the Sixth Issuer Bank Accounts and ensure that payments are made
into and from such accounts in accordance with this Agreement, the Sixth
Issuer Deed of Charge, the Sixth Issuer Liquidity Facility Agreement, the
Sixth Issuer Bank Account Agreement and any other relevant Sixth Issuer
Transaction Document, PROVIDED HOWEVER THAT nothing herein shall require
the Sixth Issuer Cash Manager to make funds available to the Sixth 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 Sixth 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
Sixth Issuer or required to be given by the Sixth Issuer pursuant to the
Sixth Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Sixth Issuer under any of
the Sixth Issuer Transaction Documents, PROVIDED THAT such monies are at
the relevant time available to the Sixth Issuer and PROVIDED FURTHER that
nothing herein shall constitute a guarantee by the Sixth Issuer Cash
Manager of all or any of the obligations of the Sixth Issuer under any of
the Sixth Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Sixth Issuer
Corporate Services Provider under the Sixth Issuer Corporate Services
Agreement, keep general books of account and records of the Sixth 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 Sixth Issuer
Corporate Services Provider under the Sixth Issuer Corporate Services
Agreement, provide or procure the provision of company secretarial and
administration services to the Sixth 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 Sixth Issuer, PROVIDED THAT such monies are at the
relevant time available to the Sixth Issuer, pay all the out-of-pocket
expenses of the Sixth Issuer, incurred by the Sixth Issuer Cash Manager on
behalf of the Sixth Issuer in the performance of the Sixth Issuer Cash
Manager's duties hereunder including without limitation:
(i) all Taxes which may be due or payable by the Sixth Issuer;
(ii) all necessary filing and other fees in compliance with regulatory
requirements;
18
(iii) all legal and audit fees and other professional advisory fees; and
(iv) all communication expenses including postage, courier and telephone
charges;
(i) with the prior written consent of the Sixth Issuer Security Trustee, the
Sixth Issuer Cash Manager may invest monies standing from time to time to
the credit of the Sixth 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 Sixth Issuer and the Sixth Issuer Security Trustee;
(ii) any costs properly and reasonably incurred in making and changing
Authorised Investments will be reimbursed to the Sixth Issuer Cash
Manager and the Sixth Issuer Security Trustee by the Sixth Issuer;
and
(iii) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Sixth Issuer Bank
Account from which monies were withdrawn to make the relevant
Authorised Investment.
The Sixth Issuer Security Trustee and the Sixth Issuer Cash Manager shall
not be responsible (save where any loss results from the Sixth Issuer
Security Trustee's or the Sixth 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;
(ii) 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
(iii) 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 Sixth Issuer and
provide or procure the provision of company secretarial and administration
services to the Sixth 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
and the Swiss Exchange.
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SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. DETERMINATION
(a) On each Sixth Issuer Note Determination Date, the Sixth Issuer Cash
Manager shall determine each of the following in accordance with this
PARAGRAPH 1:
(i) the amount of any Sixth Issuer Principal Receipts and Sixth Issuer
Revenue Receipts available as at the following Interest Payment
Date;
(ii) the amount of any Sixth Issuer Liquidity Shortfall on the following
Interest Payment Date; and
(iii) the Principal Amount Outstanding of the Sixth Issuer Notes, the Pool
Factor, and the Note Principal Payment of the Sixth Issuer Notes in
accordance with the Conditions.
(b) The Sixth 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 Sixth 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 Sixth Issuer Note
Determination Date to but excluding the next Interest Payment Date).
The Sixth Issuer Cash Manager shall notify the Sixth Issuer and the Sixth
Issuer Security Trustee on request of any such other assumptions and shall
take account of any representations made by the Sixth Issuer and the Sixth
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 error) be
final and binding on all persons.
2. NOTIFICATION OF DETERMINATIONS
(a) The Sixth Issuer Cash Manager will cause each determination of Sixth
Issuer Available Funds and any Sixth Issuer Liquidity Shortfall to be
notified forthwith to the Sixth Issuer.
(b) The Sixth 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 SIXTH ISSUER REVENUE RECEIPTS
Sixth 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 Sixth Issuer
Account Banks under the Sixth Issuer Bank Account Agreement pursuant
to PARAGRAPH (D) below,
20
in each case until enforcement of the Sixth Issuer Security pursuant to
the Sixth Issuer Deed of Charge or until such time as there are no Sixth
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 "SIXTH 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:
(i) any remuneration then due and payable to the Sixth Issuer
Security Trustee and any amounts then due and payable or to
become due and payable during the immediately following
Interest Period to the Sixth Issuer Security Trustee under the
Sixth 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 Sixth 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 Swiss 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 Sixth Issuer Paying Agent and Agent Bank
Agreement and the Issuer Swiss Paying Agent and Agent Bank
Agreement (as applicable) together with any amount in respect
of VAT as provided therein;
(b) secondly, to pay any amounts due and payable by the Sixth Issuer to
third party creditors and incurred without breach by the Sixth
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 Sixth
Issuer during the immediately following Interest Period and to pay
or discharge any liability of the Sixth Issuer for corporation tax
on any chargeable income, profit or gain of the Sixth Issuer;
(c) thirdly, to pay all amounts of principal, interest and commitment
fees and any Additional Percentage due and payable to the Sixth
Issuer Liquidity Facility Provider under the Sixth Issuer Liquidity
Facility Agreement other than (i) any principal repayments due to
the Sixth Issuer Liquidity Facility Provider as a result of a Sixth
Issuer Liquidity Facility Drawing made for the purposes of paying
principal amounts due on the Series 1 Class A Sixth Issuer Notes
and/or the Series 2 Class A Sixth Issuer Notes and/or the Series 3
Class A Sixth Issuer Notes and/or the Series 4 Class A Sixth Issuer
Notes and (ii) any Sixth Issuer Liquidity Subordinated Amounts;
(d) fourthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
21
(i) any remuneration then due and payable to the Sixth 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 Sixth Issuer Cash
Manager under the provisions of the Sixth Issuer Cash
Management Agreement, together with VAT thereon as provided
therein;
(ii) any remuneration then due and payable to the Sixth 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 Sixth Issuer Corporate Services Provider under the
Sixth 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 Sixth 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 Sixth Issuer
Account Banks under the Sixth Issuer Bank Account Agreement
together with interest and any amount in respect of VAT as
provided therein;
(e) fifthly, 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 Sixth Issuer to the
Series 1 Class A Dollar Currency Swap Providers pursuant to
the Series 1 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 1 Class A Dollar Currency Swap Providers), and from the
proceeds received from the Series 1 Class A Dollar Currency
Swap Providers, interest due and payable on the Series 1 Class
A Sixth Issuer Notes;
(ii) those amounts due and payable by the Sixth Issuer to the
Series 2 Class A Dollar Currency Swap Providers pursuant to
the Series 2 Class A Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 2 Class A Dollar Currency Swap Providers), and from the
proceeds received from the Series 2 Class A Dollar Currency
Swap Providers, interest due and payable on the Series 2 Class
A Sixth Issuer Notes;
(iii) those amounts due and payable by the Sixth Issuer to the
Series 3 Class A Euro Currency Swap Provider pursuant to the
Series 3 Class A Euro Currency Swap Agreement (except for any
termination payment due and payable by the Sixth Issuer
following a Sixth Issuer Swap Provider Default by the Series 3
Class A Euro Currency Swap Provider), and from the proceeds
received on each Interest Payment Date from the Series 3 Class
A Euro Currency Swap Provider, interest due and payable on the
Series 3 Class A Sixth Issuer Notes;
22
(iv) those amounts due and payable by the Sixth Issuer to the
Series 4 Class A1 Dollar Currency Swap Providers pursuant to
the Series 4 Class A1 Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 4 Class A1 Dollar Currency Swap Providers), and from
the proceeds received from the Series 4 Class A Dollar
Currency Swap Providers, interest due and payable by the Sixth
Issuer on the Series 4 Class A1 Sixth Issuer Notes;
(v) those amounts due and payable by the Sixth Issuer to the
Series 4 Class A2 Swiss Franc Currency Swap Provider pursuant
to the Series 4 Class A2 Swiss Franc Currency Swap Agreement
(except for any termination payment due and payable by the
Sixth Issuer following a Sixth Issuer Swap Provider Default by
the Series 4 Class A2 Swiss Franc Currency Swap Provider), and
from the proceeds received from the Series 4 Class A2 Swiss
Franc Currency Swap Provider, interest due and payable by the
Sixth Issuer on the Series 4 Class A2 Sixth Issuer Notes; and
(vi) interest due and payable by the Sixth Issuer on the Series 5
Class A Sixth 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 Sixth Issuer to the
Series 1 Class B Dollar Currency Swap Providers pursuant to
the Series 1 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 1 Class B Dollar Currency Swap Providers), and from the
proceeds received from the Series 1 Class B Dollar Currency
Swap Providers, interest due and payable on the Series 1 Class
B Sixth Issuer Notes;
(ii) those amounts due and payable by the Sixth Issuer to the
Series 2 Class B Dollar Currency Swap Providers pursuant to
the Series 2 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 2 Class B Dollar Currency Swap Providers), and from the
proceeds received from the Series 2 Class B Dollar Currency
Swap Providers, interest due and payable on the Series 2 Class
B Sixth Issuer Notes;
(iii) those amounts due and payable by the Sixth Issuer to the
Series 3 Class B Euro Currency Swap Provider pursuant to the
Series 3 Class B Euro Currency Swap Agreement (except for any
termination payment due and payable by the Sixth Issuer
following a Sixth Issuer Swap Provider Default by the Series 3
Class B Euro Currency Swap Provider), and from the proceeds
received from the Series 3 Class B Euro Currency Swap
Provider, interest due and payable on the Series 3 Class B
Sixth Issuer Notes;
23
(iv) those amounts due and payable by the Sixth Issuer to the
Series 4 Class B Dollar Currency Swap Providers pursuant to
the Series 4 Class B Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 4 Class B Dollar Currency Swap Providers), and from the
proceeds received from the Series 4 Class B Dollar Currency
Swap Providers, interest due and payable on the Series 4 Class
B Sixth Issuer Notes; and
(v) interest due and payable by the Sixth Issuer on the Series 5
Class B Sixth Issuer Notes;
(g) seventhly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) those amounts due and payable by the Sixth Issuer to the
Series 1 Class C Dollar Currency Swap Providers pursuant to
the Series 1 Class C Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by
Series 1 Class C Dollar Currency Swap Providers), and from the
proceeds received from the Series 1 Class C Dollar Currency
Swap Providers, interest due and payable on the Series 1 Class
C Sixth Issuer Notes;
(ii) those amounts due and payable by the Sixth Issuer to the
Series 2 Class C Dollar Currency Swap Providers pursuant to
the Series 2 Class C Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 2 Class C Dollar Currency Swap Providers), and from the
proceeds received from the Series 2 Class C Dollar Currency
Swap Provider, interest due and payable on the Series 2 Class
C Sixth Issuer Notes;
(iii) those amounts due and payable by the Sixth Issuer to the
Series 3 Class C Euro Currency Swap Provider pursuant to the
Series 3 Class C Euro Currency Swap Agreement (except for any
termination payment due and payable by the Sixth Issuer
following a Sixth Issuer Swap Provider Default by the Series 3
Class C Euro Currency Swap Provider), and from the proceeds
received from the Series 3 Class C Euro Currency Swap
Provider, interest due and payable on the Series 3 Class C
Sixth Issuer Notes;
(iv) those amounts due and payable by the Sixth Issuer to the
Series 4 Class C Dollar Currency Swap Providers pursuant to
the Series 4 Class C Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Sixth
Issuer following a Sixth Issuer Swap Provider Default by the
Series 4 Class C Dollar Currency Swap Providers), and from the
proceeds received from the Series 4 Class C Dollar Currency
Swap Providers, interest due and payable on the Series 4 Class
C Sixth Issuer Notes; and
(v) interest due and payable by the Sixth Issuer on the Series 5
Class C Sixth Issuer Notes;
24
(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 Sixth Issuer
under the Series 1 Class A Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 1 Class A Dollar Currency Swap
Providers;
(ii) any termination payments due and payable by the Sixth Issuer
under the Series 2 Class A Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 2 Class A Dollar Currency Swap
Providers;
(iii) any termination payments due and payable by the Sixth Issuer
under the Series 3 Class A Euro Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 3 Class A Euro Currency Swap Provider;
(iv) any termination payments due and payable by the Sixth Issuer
under the Series 4 Class A1 Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 4 Class A1 Dollar Currency Swap
Providers; and
(v) any termination payments due and payable by the Sixth Issuer
under the Series 4 Class A2 Swiss Franc Currency Swap
Agreement, following the occurrence of a Sixth Issuer Swap
Provider Default by the Series 4 Class A2 Swiss Franc 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 Sixth Issuer
under the Series 1 Class B Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 1 Class B Dollar Currency Swap
Providers;
(ii) any termination payments due and payable by the Sixth Issuer
under the Series 2 Class B Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 2 Class B Dollar Currency Swap
Providers;
(iii) any termination payments due and payable by the Sixth Issuer
under the Series 3 Class B Euro Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 3 Class B Euro Currency Swap Provider;
and
(iv) any termination payments due and payable by the Sixth Issuer
under the Series 4 Class B Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 4 Class Dollar Currency Swap Providers;
25
(j) tenthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) any termination payments due and payable by the Sixth Issuer
under the Series 1 Class C Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 1 Class C Dollar Currency Swap
Providers;
(ii) any termination payments due and payable by the Sixth Issuer
under the Series 2 Class C Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series Class C Dollar Currency Swap Providers;
(iii) any termination payments due and payable by the Sixth Issuer
under the Series 3 Class C Euro Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 2 Class C Euro Currency Swap Provider;
and
(iv) any termination payments due and payable by the Sixth Issuer
under the Series 4 Class C Dollar Currency Swap Agreement,
following the occurrence of a Sixth Issuer Swap Provider
Default by the Series 4 Class C Dollar Currency Swap
Providers;
(k) eleventhly, in or toward satisfaction of any Sixth Issuer Liquidity
Subordinated Amounts;
(l) twelfthly, to pay the Sixth Issuer an amount equal to 0.01 per cent.
of the interest received on the Sixth Issuer Term Advances to be
retained by the Sixth Issuer as profit; and
(m) thirteenthly, to pay to shareholders of the Sixth Issuer any
dividend declared by the Sixth Issuer.
4. PRIORITY OF PAYMENTS FOR SIXTH ISSUER PRINCIPAL RECEIPTS
Subject to CONDITION 5 of the Sixth Issuer Notes, until enforcement of the
Sixth Issuer Security pursuant to the Sixth Issuer Deed of Charge or until
such time as there are no Sixth Issuer Notes outstanding, Sixth Issuer
Principal Receipts will be applied firstly in and towards satisfaction of
any amounts drawn under the Sixth Issuer Liquidity Facility in order to
repay principal amounts due on the Series 1 Class A Sixth Issuer Notes
and/or the Series 2 Class A Sixth Issuer Notes and/or the Series 3 Class A
Sixth Issuer Notes and/or the Series 4 Class A Sixth Issuer Notes in the
circumstances permitted by the terms of the Sixth Issuer Liquidity
Facility Agreement, and then, subject thereto, to repay the Sixth Issuer
Notes as follows:
(a) the Series 1 Class A Sixth Issuer Notes shall be redeemed on each
Interest Payment Date (i) in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Sixth Issuer
Series 1 Term AAA Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate, and (ii) if there is a shortfall in the
principal amount due and payable on the Series 1 Class A Sixth
Issuer Notes on the Scheduled Repayment Dates in [July 2003] and
[October 2003], from amounts
26
available to be drawn under the Sixth Issuer Liquidity Facility to
repay the Series 1 Class A Sixth Issuer Notes after converting the
same into Dollars at the relevant Dollar Currency Swap Rate;
(b) the Series 2 Class A Sixth Issuer Notes shall be redeemed on each
Interest Payment Date (i) in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Sixth Issuer
Series 2 Term AAA Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate, and (ii) if there is a shortfall in the
principal amount due and payable on the Series 2 Class A1 Sixth
Issuer Notes, on the Scheduled Repayment Date in [April 2005], from
amounts available to be drawn under the Sixth Issuer Liquidity
Facility to repay the Series 2 Class A Sixth Issuer Notes after
converting the same into Dollars at the relevant Dollar Currency
Swap Rate;
(c) the Series 3 Class A Sixth Issuer Notes shall be redeemed on each
Interest Payment Date (i) in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Sixth Issuer
Series 3 Term AAA Advance, converted into Euro at the relevant Euro
Currency Swap Rate, and (ii) if there is a shortfall in the
principal amount due and payable on the Series 3 Class A Sixth
Issuer Notes, on the Scheduled Repayment Date in [April 2007], from
amounts available to be drawn under the Sixth Issuer Liquidity
Facility to repay the Series 3 Class A Sixth Issuer Notes after
converting the same into Euro at the relevant Euro Currency Swap
Rate;
(d) the Series 4 Class A1 Sixth Issuer Notes shall be redeemed on each
Interest Payment Date (i) in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Sixth Issuer
Series 4A1 Term AAA Advance, converted into Dollar at the relevant
Dollars Currency Swap Rate and (ii) if there is a shortfall in the
principal amount due and payable on the Series 4 Class A1 Sixth
Issuer Notes, on the Scheduled Repayment Date in [October 2007],
from the amounts to be drawn under the Sixth Issuer Liquidity
Facility to repay the Series 4 Class A1 Sixth Issuer Notes after
converting the same into Dollars at the relevant Dollars Currency
Swap Rate;
(e) the Series 4 Class A2 Sixth Issuer Notes shall be redeemed on each
Interest Payment Date (i) in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Sixth Issuer
Series 4A2 Term AAA Advance, converted into Swiss Francs at the
relevant Swiss Franc Currency Swap Rate and (ii) if there is a
shortfall in the principal amount due and payable on the Series 4
Class A2 Sixth Issuer Notes, on the Scheduled Repayment Date in
[October 2007], from the amounts to be drawn under the Sixth Issuer
Liquidity Facility to repay the Series 4 Class A2 Sixth Issuer Notes
after converting the same into Swiss Francs at the relevant Swiss
Franc Currency Swap Rate;
(f) the Series 5 Class A Sixth 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 Sixth Issuer
Series 5 Term AAA Advance;
(g) the Series 1 Class B Sixth 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 Sixth Issuer
Series 1 Term AA Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate;
27
(h) the Series 2 Class B Sixth 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 Sixth Issuer
Series 2 Term AA Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate;
(i) the Series 3 Class B Sixth 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 Sixth Issuer
Series 3 Term AA Advance, converted into Euro at the relevant Euro
Currency Swap Rate;
(j) the Series 4 Class B Sixth 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 Sixth Issuer
Series 4 Term AA Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate;
(k) the Series 5 Class B Sixth 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 Sixth Issuer
Series 5 Term AA Advance;
(l) the Series 1 Class C Sixth 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 Sixth Issuer
Series 1 Term BBB Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate;
(m) the Series 2 Class C Sixth 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 Sixth Issuer
Series 2 Term BBB Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate;
(n) the Series 3 Class C Sixth 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 Sixth Issuer
Series 3 Term BBB Advance, converted into Euro at the relevant Euro
Currency Swap Rate;
(o) the Series 4 Class C Sixth 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 Sixth Issuer
Series 4 Term BBB Advance, converted into Dollars at the relevant
Dollar Currency Swap Rate; and
(p) the Series 5 Class C Sixth 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 Sixth Issuer
Series 5 Term BBB Advance.
5. SIXTH ISSUER LIQUIDITY FACILITY AGREEMENT
Upon satisfaction of the conditions to drawing set out in CLAUSES 2.1 and
2.2 of the Sixth Issuer Liquidity Facility Agreement and to the extent
that a Sixth Issuer Liquidity Shortfall exists, the Sixth Issuer Cash
Manager on behalf of the Sixth Issuer shall serve a Sixth Issuer Liquidity
Facility Drawdown Notice and take all steps required in order to make on
any Interest Payment Date:
28
(a) a drawing under the Sixth Issuer Liquidity Facility in an amount
sufficient to enable the payments or provisions referred to in
PARAGRAPH 3(A) and PARAGRAPHS 3(C) to (G) inclusive of the Sixth
Issuer Pre-Enforcement Revenue Priority of Payments to be made in
full on that Interest Payment Date; and/or
(b) to pay principal due on the Series 1 Class A Sixth Issuer Notes
and/or the Series 2 Class A Sixth Issuer Notes and/or the Series 3
Class A Sixth Issuer Notes and/or the Series 4 Class A Sixth Issuer
Notes provided that:
(i) following the occurrence of a Non-Asset Trigger Event, the
Sixth Issuer Liquidity Facility will be available to repay
principal amounts due on the Series 1 Class A Sixth Issuer
Notes and/or the Series 2 Class A Sixth Issuer Notes and/or
the Series 3 Class A Sixth Issuer Notes and/or the Series 4
Class A Sixth Issuer Notes on their Final Maturity Date only;
and
(ii) following the occurrence of an Asset Trigger Event, the Sixth
Issuer Liquidity Facility will not be available to repay
principal amounts due on the Series 1 Class A Sixth Issuer
Notes or the Series 2 Class A Sixth Issuer Notes or the Series
3 Class A Sixth Issuer Notes or the Series 4 Class A Sixth
Issuer Notes.
6. RECORDS
In addition, the Sixth Issuer Cash Manager shall ensure that a separate
record is kept of any amount drawn under the Sixth Issuer Liquidity
Facility pursuant to the Sixth Issuer Liquidity Facility Agreement and any
amount received from the Dollar Currency Swap Providers, the Euro Currency
Swap Provider and the Swiss Franc Currency Swap Provider and pursuant to,
respectively, the Dollar Currency Swap Agreements, the Euro Currency Swap
Agreements and the Swiss Franc Currency Swap Agreement.
29
SCHEDULE 3
FORM OF SIXTH ISSUER QUARTERLY REPORT
XXXXXX FINANCING (NO. 6) PLC
PROFIT & LOSS ACCOUNT
PERIOD ENDED
This Prior
Quarter 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
=====================
30
XXXXXX FINANCING (NO. 6) 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
31
XXXXXX FINANCING (NO. 6) PLC
XXXXXX FINANCING (NO. 3) PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A1 SERIES 4 CLASS A2
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 5 CLASS A SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Xxxxx'x Current Rating Aaa Aa3 Aa3 Aa3 Aa3
Fitch Current Rating AAA AA AA AA AA
S&P Current Rating AAA AA AA AA AA
SERIES 5 CLASS B SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C SERIES 5 CLASS C
Xxxxx'x Current Rating Aa3 Xxx0 Xxx0 Xxx0 Xxx0 Xxx0
Fitch Current Rating AA BBB BBB BBB BBB BBB
S&P Current Rating AA BBB BBB BBB BBB BBB
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A1 SERIES 4 CLASS A2
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
SERIES 5 CLASS A 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 5 CLASS B SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C SERIES 5 CLASS C
A
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 A1 SERIES 4 CLASS A2
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 5 CLASS A SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
A
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 5 CLASS B SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C SERIES 5 CLASS C
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A1 SERIES 4 CLASS A2
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
SERIES 5 CLASS A 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
32
SERIES 5 CLASS B SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C SERIES 5 CLASS C
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A1 SERIES 4 CLASS A2
Liquidity Facility Limit
Liquidity Facility Drawn
Liquidity Facility Available
33
SIGNATORIES
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 6) PLC )
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
___ )
)
