EXHIBIT 4.9
EXECUTION COPY XXXXX & XXXXX
XXXXX & XXXXX LLP
EIGHTH ISSUER CASH MANAGEMENT AGREEMENT
HALIFAX plc
and
PERMANENT FINANCING (NO. 8) PLC
and
THE BANK OF NEW YORK
22nd June, 2005
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................................................1
2. Appointment of Eighth Issuer Cash Manager............................................................1
3. Eighth Issuer Cash Management Services...............................................................2
4. Payments, Accounts, Ledgers..........................................................................3
5. Payments under Eighth Issuer Swap Agreements, Payments to the Principal Paying Agents and
Termination of Eighth Issuer Swap Agreements.........................................................5
6. No Liability.........................................................................................7
7. Costs and Expenses...................................................................................7
8. Information..........................................................................................7
9. Remuneration.........................................................................................9
10. Covenants of Eighth Issuer Cash Manager..............................................................9
11. Non-Exclusivity.....................................................................................10
12. Termination.........................................................................................10
13. Further Assurance...................................................................................12
14. Miscellaneous.......................................................................................13
15. Confidentiality.....................................................................................14
16. Notices.............................................................................................14
17. Variation and Waiver................................................................................15
18. No Partnership......................................................................................15
19. Assignment..........................................................................................15
20. Exclusion of Third Party Rights.....................................................................15
21. Counterparts........................................................................................16
22. Governing Law.......................................................................................16
23. Submission to Jurisdiction..........................................................................16
SCHEDULE
1. Cash Management Services............................................................................17
2. Cash Management and Maintenance of Ledgers..........................................................19
3. Form of Eighth Issuer Quarterly Report..............................................................25
Signatories..................................................................................................28
THIS EIGHTH ISSUER CASH MANAGEMENT AGREEMENT is made on 22nd June, 2005 BETWEEN:
(1) HALIFAX PLC, a public limited company incorporated under the laws of
England and Wales whose registered office is at Xxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX (acting in its capacity as the EIGHTH ISSUER
CASH MANAGER);
(2) PERMANENT FINANCING (NO. 8) PLC, a public limited company incorporated
under the laws of England and Wales (registered number 5434519) whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx
EIGHTH ISSUER); and
(3) THE BANK OF NEW YORK, a New York banking corporation whose London
branch address is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(acting in its capacity as SECURITY TRUSTEE).
WHEREAS:
(A) On the Eighth Issuer Closing Date the Eighth Issuer will issue the
Eighth Issuer Notes. The Eighth Issuer will make the Eighth Issuer Term
Advances to Funding 1 from the proceeds of the issue of the Eighth
Issuer Notes.
(B) The Eighth Issuer Cash Manager is willing to provide cash management
services to the Eighth Issuer and the 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
signed by, amongst others, the parties to this Agreement and dated 22nd
June, 2005 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and the eighth issuer
master definitions and construction schedule, signed for the purposes
of identification by Xxxxx & Overy LLP and Sidley Xxxxxx Xxxxx & Xxxx
on 22nd June, 2005 (as the same may be amended, varied or supplemented
from time to time) (the EIGHTH ISSUER MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) are expressly and specifically incorporated into
this Agreement and, accordingly, the expressions defined in the Master
Definitions and Construction Schedule and the Eighth Issuer Master
Definitions and Construction Schedule 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 Eighth Issuer Master Definitions
and Construction Schedule and the Master Definitions and Construction
Schedule.
2. APPOINTMENT OF EIGHTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to CLAUSE 12, the Eighth Issuer and the
Security Trustee (according to their respective estates and interests)
each hereby appoints the Eighth Issuer Cash Manager as its lawful agent
to provide the Eighth Issuer Cash Management Services set out in this
Agreement. The Eighth Issuer Cash Manager in each case hereby accepts
such appointment on the terms and subject to the conditions of this
Agreement.
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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 in this Agreement shall be construed so as to give
the Eighth Issuer Cash Manager any powers, rights, authorities,
directions or obligations other than as specified in this Agreement or
any of the other Eighth Issuer Transaction Documents.
2.3 APPOINTMENT CONDITIONAL UPON ISSUANCE OF EIGHTH ISSUER NOTES
The appointment pursuant to CLAUSE 2.1 is conditional upon the issue of
the Eighth Issuer Notes and shall take effect upon and from the Eighth
Issuer Closing Date automatically without any further action on the
part of any person PROVIDED THAT if the issue of the Eighth Issuer
Notes has not occurred by 22nd June, 2005, or such later date as the
Eighth Issuer and the Lead Managers may agree, this Agreement shall
cease to be of further effect.
3. EIGHTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Eighth Issuer Cash Manager shall provide the services set out in
this Agreement (including, for the avoidance of doubt, the Schedules)
(the EIGHTH ISSUER CASH MANAGEMENT SERVICES).
3.2 APPROVALS AND AUTHORISATIONS
The Eighth Issuer Cash Manager shall maintain, or procure the
maintenance of, the approvals, authorisations, consents and licences
required in connection with the business of the Eighth Issuer and shall
prepare and submit, or procure the preparation and submission of, on
behalf of the Eighth 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 Eighth Issuer and
shall, so far as it is reasonably able to do so, perform the Eighth
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 Eighth Issuer Cash Management Services shall include procuring (so
far as the Eighth Issuer Cash Manager, using its reasonable endeavours,
is able so to do) compliance by the Eighth Issuer with all applicable
legal requirements and with the terms of the Eighth Issuer Transaction
Documents, PROVIDED ALWAYS THAT the Eighth Issuer Cash Manager shall
not lend or provide any sum to the Eighth Issuer and that the Eighth
Issuer Cash Manager shall have no liability whatsoever to the Eighth
Issuer, the Security Trustee or any other person for any failure by the
Eighth Issuer to make any payment due under any of the Eighth Issuer
Transaction Documents (other than to the extent arising from any
failure by the Eighth Issuer Cash Manager to perform any of its
obligations under any of the Eighth Issuer Transaction Documents).
3.4 LIABILITY OF EIGHTH ISSUER CASH MANAGER
(a) The Eighth Issuer Cash Manager shall indemnify each of the Eighth
Issuer and the 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 or wilful default of the Eighth Issuer
Cash Manager in carrying out its functions as Eighth Issuer Cash
Manager under, or as a result of a breach by the Eighth Issuer Cash
Manager of, the terms and provisions of this Agreement or such other
Eighth Issuer Transaction Documents to which the Eighth Issuer Cash
Manager is a party (in its capacity as such) in relation to such
functions.
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(b) For the avoidance of doubt, the Eighth Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or damage
suffered or incurred by the Eighth Issuer or the Security Trustee
and/or any other person as a result of the proper performance of the
Eighth Issuer Cash Management Services by the Eighth 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 or
wilful default of the Eighth Issuer Cash Manager under, or as a result
of a breach by the Eighth Issuer Cash Manager of, the terms and
provisions of this Agreement or any of the other Eighth Issuer
Transaction Documents to which the Eighth Issuer Cash Manager is a
party (in its capacity as such) in relation to such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 EIGHTH ISSUER TRANSACTION ACCOUNT
(a) The Eighth Issuer Cash Manager hereby confirms that the Eighth Issuer
Transaction Account has been established on or before the date of this
Agreement and that the mandate in the agreed form will apply to this
Agreement at the Eighth Issuer Closing Date. The Eighth Issuer Cash
Manager undertakes (to the extent to which the same is within its
control in its capacity as Eighth Issuer Cash Manager) that at the
Eighth Issuer Closing Date the Eighth Issuer Transaction Account will
be operative and that the Eighth Issuer Cash Manager will not knowingly
create or permit to subsist any Security Interest in relation to the
Eighth Issuer Transaction Account other than as created under or
permitted pursuant to the Eighth Issuer Deed of Charge.
(b) The Eighth Issuer Cash Manager shall procure that the following amounts
are paid into the Eighth Issuer Transaction Account:
(i) all amounts of interest paid on the Eighth Issuer Term
Advances;
(ii) all repayments of principal on the Eighth Issuer Term
Advances;
(iii) all amounts received by the Eighth Issuer pursuant to the
Eighth Issuer Swap Agreements (excluding the return or
transfer of any Excess Swap Collateral as set out in the
relevant Eighth Issuer Swap Agreement and in respect of each
Eighth Issuer Swap Provider, prior to the designation of an
early termination date under the relevant Eighth Issuer Swap
Agreement and the resulting application of the collateral by
way of netting or set-off, an amount equal to the value of all
collateral (other than Excess Swap Collateral) provided by
such Eighth Issuer Swap Provider to the Eighth Issuer pursuant
to the relevant Eighth Issuer Swap Agreement (and any interest
or distributions in respect thereof)); and
(iv) any other amounts whatsoever received by or on behalf of the
Eighth Issuer after the Eighth Issuer Closing Date,
and the Eighth Issuer Cash Manager shall procure that all interest
earned on the Eighth Issuer Transaction Account and all investment
proceeds from and income and distributions arising from time to time in
respect of Authorised Investments purchased from amounts standing to
the credit of the Eighth Issuer Transaction Account are credited to
such account.
(c) Each of the payments into the Eighth Issuer Transaction Account
referred to in CLAUSE 4.1(B) shall be made forthwith upon receipt by
the Eighth Issuer or the Eighth 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 Eighth Issuer Cash Manager may, and
shall, withdraw Cash from the Eighth Issuer Transaction
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Account 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 Eighth Issuer Cash Manager shall promptly notify each of the Eighth
Issuer and the Security Trustee in writing of any additional account
which supplements or replaces any account specifically referred to in
the definition of the Eighth Issuer Transaction Account in the Eighth
Issuer Master Definitions and Construction Schedule.
(f) Each of the Eighth Issuer Cash Manager and the Eighth Issuer undertakes
that, so far as it is able to procure the same, the Eighth Issuer
Transaction Account and all instructions and mandates in relation
thereto will continue to be operative and will not, save as permitted
pursuant to the Eighth Issuer Bank Account Agreement, be changed
without the prior written consent of the Security Trustee (such consent
not to be unreasonably withheld or delayed). For the avoidance of
doubt, the Eighth Issuer Cash Manager may change the authorised
signatories in respect of any instructions or mandates without the
prior written consent of the Security Trustee, in accordance with the
terms of the Eighth Issuer Bank Account Agreement.
4.2 ADDITIONAL EIGHTH ISSUER ACCOUNTS
(a) If established, the Eighth Issuer Cash Manager will not knowingly
create or permit to subsist any Security Interest in relation to any
Additional Eighth Issuer Account or any Eighth Issuer Swap Collateral
Account other than as created under or permitted pursuant to the Eighth
Issuer Deed of Charge.
(b) The Eighth Issuer Cash Manager shall procure that the relevant amounts
are paid into the applicable Eighth Issuer Account or applicable Eighth
Issuer Swap Collateral Account and the Eighth Issuer Cash Manager shall
procure that all interest earned on the relevant Additional Eighth
Issuer Account or relevant Eighth Issuer Swap Collateral Account and
all investment proceeds from and income and distributions arising from
time to time in respect of Authorised Investments purchased from
amounts standing to the credit of an Additional Eighth Issuer Account
or an Eighth Issuer Swap Collateral Account are credited to such
account.
(c) Each of the payments into the Additional Eighth Issuer Account or any
Eighth Issuer Swap Collateral Account referred to in CLAUSE 4.2(B)
shall be made forthwith upon receipt by the Eighth Issuer or the Eighth
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 Eighth Issuer Cash Manager may, and
shall, withdraw Cash from an Additional Eighth Issuer Account or an
Eighth Issuer Swap Collateral Account 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 Eighth Issuer Cash Manager shall promptly notify each of the Eighth
Issuer and the Security Trustee in writing of any additional account
which is established pursuant to CLAUSE 3.1 or CLAUSE 3.3 of the Eighth
Issuer Bank Account Agreement or any account established to replace or
supplement such account.
(f) Each of the Eighth Issuer Cash Manager and the Eighth Issuer undertakes
that, so far as it is able to procure the same, the Additional Eighth
Issuer Accounts and any Eighth Issuer Swap Collateral Accounts and all
instructions and mandates in relation thereto will continue to be
operative and will not, save as permitted pursuant to the Eighth Issuer
Bank Account Agreement or any agreement entered into by HBOS Treasury
Services plc on substantially the same terms as the Eighth Issuer Bank
Account Agreement, be changed without the prior written consent of the
Security Trustee (such consent not to be unreasonably withheld or
delayed). For the avoidance of doubt, the Eighth
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Issuer Cash Manager may change the authorised signatories in respect of
any instructions or mandates without the prior written consent of the
Security Trustee, in accordance with the terms of the Eighth Issuer
Bank Account Agreement or any agreement entered into by HBOS Treasury
Services plc on substantially the same terms as the Eighth Issuer Bank
Account Agreement.
4.3 WITHDRAWALS
(a) The Eighth Issuer Cash Manager may make withdrawals on behalf of the
Eighth Issuer from an Eighth Issuer Account, until such time as the
Eighth Issuer Cash Manager receives a copy of an Eighth Issuer Note
Acceleration Notice served by the Security Trustee on the Eighth
Issuer, as permitted by this Agreement, but shall not in carrying out
its functions as Eighth Issuer Cash Manager under this Agreement
otherwise make withdrawals from an Eighth Issuer Account.
(b) Upon receipt of such an Eighth Issuer Note Acceleration Notice, no
amount shall be withdrawn from the Eighth Issuer Accounts by the Eighth
Issuer Cash Manager without the prior written consent of the Security
Trustee.
4.4 CASH MANAGEMENT
In administering the Eighth Issuer Accounts on behalf of the Eighth
Issuer and the Security Trustee, the Eighth Issuer Cash Manager shall
comply with the provisions of Schedule 2 prior to receipt by the Eighth
Issuer Cash Manager of a copy of any Eighth Issuer Note Acceleration
Notice served on the Eighth Issuer. Following service of an Eighth
Issuer Note Acceleration Notice, the Security Trustee or any Receiver
appointed by the Security Trustee will administer the Eighth Issuer
Accounts in accordance with the terms of the Eighth Issuer Deed of
Charge.
5. PAYMENTS UNDER EIGHTH ISSUER SWAP AGREEMENTS, PAYMENTS TO THE PRINCIPAL
PAYING AGENTS AND TERMINATION OF EIGHTH ISSUER SWAP AGREEMENTS
5.1 On each Funding 1 Interest Payment Date, the Eighth Issuer or the
Eighth Issuer Cash Manager on its behalf will procure that amounts
received from Funding 1 under the Eighth Issuer Intercompany Loan
Agreement are paid into the Eighth Issuer Transaction Account.
5.2 The Eighth Issuer, or the Eighth Issuer Cash Manager on its behalf,
will procure that:
(a) on each Funding 1 Interest Payment Date subject to making
payments ranking higher in the order of priorities of payment
set out in the Eighth Issuer Pre-Enforcement Priority of
Payments or, as the case may be, the Eighth Issuer
Post-Enforcement Priority of Payments, amounts received in
respect of:
(i) the Eighth Issuer Series 1 Term Advances are paid to
the relevant Series 1 Eighth Issuer Swap Provider or
if such Eighth Issuer Swap Agreement has been
terminated and the Eighth Issuer is unable to enter
into a replacement hedge as set out in CLAUSE 5.4,
into the relevant Additional Eighth Issuer Account;
(ii) the Eighth Issuer Series 2 Term Advances are paid to
the relevant Series 2 Eighth Issuer Swap Provider or
if such Eighth Issuer Swap Agreement has been
terminated and the Eighth Issuer is unable to enter
into a replacement hedge as set out in CLAUSE 5.4,
into the relevant Additional Eighth Issuer Account;
(iii) the Eighth Issuer Series 3 Term Advances are paid to
the relevant Series 3 Eighth Issuer Swap Provider or
if such Eighth Issuer Swap Agreement has been
terminated
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and the Eighth Issuer is unable to enter into a
replacement hedge as set out in CLAUSE 5.4, into
the relevant Additional Eighth Issuer Account;
(iv) the Eighth Issuer Series 4 Term Advances are paid to
the relevant Series 4 Eighth Issuer Swap Provider or
if such Eighth Issuer Swap Agreement has been
terminated and the Eighth Issuer is unable to enter
into a replacement hedge as set out in CLAUSE 5.4,
into the relevant Additional Eighth Issuer Account;
(b) on each relevant Interest Payment Date:
(i) amounts received from each Eighth Issuer Swap
Provider under the relevant Eighth Issuer Swap
Agreement are paid to the Principal Paying Agent,
which amounts shall be paid by the Paying Agents
(subject to the terms of the Eighth Issuer Paying
Agent and Agent Bank Agreement) to the holders of the
corresponding classes of Eighth Issuer Notes; and/or
(ii) amounts standing to the credit of the relevant
Additional Eighth Issuer Account are, if applicable,
exchanged at the "spot" rate from sterling into Euro
or US Dollars, as necessary and, paid to the
Principal Paying Agent, which amounts shall be paid
by the Paying Agents (subject to the terms of the
Eighth Issuer Paying Agent and Agent Bank Agreement)
to the holders of the corresponding classes of Eighth
Issuer Notes.
5.3 The Eighth Issuer, or the Eighth Issuer Cash Manager on its behalf,
will procure that on each Interest Payment Date (subject to making
payments ranking higher in the order of priorities of payment set out
in the Eighth Issuer Pre-Enforcement Priority of Payments or, as the
case may be, the Eighth Issuer Post-Enforcement Priority of Payments),
amounts received from Funding 1 in respect of the Eighth Issuer Series
5A1 Term AAA Advance and the Eighth Issuer Series 5A2 Term AAA Advance
are paid to the Principal Paying Agent, which amounts shall be paid by
the Paying Agents (subject to the terms of the Eighth Issuer Paying
Agent and Agent Bank Agreement) to the holders of the corresponding
class of the Series 5 Eighth Issuer Notes.
5.4 If on or prior to the date of the earlier of (i) repayment in full of
the Eighth Issuer Notes or (ii) the service of an Eighth Issuer Note
Acceleration Notice, any of the Eighth Issuer Swaps are terminated, the
Eighth Issuer Cash Manager (on behalf of the Eighth Issuer and the
Security Trustee) shall purchase a replacement hedge (taking into
account any early termination payment received from the relevant Eighth
Issuer Swap Provider) in respect of the relevant class of Eighth Issuer
Notes, against, as appropriate:
(a) fluctuations in the relevant currency swap rate between
Dollars and Sterling or the possible variance between LIBOR
for three-month Sterling deposits and either:
(i) LIBOR for one-month Dollar deposits (in relation to
the Series 1 Class A Eighth Issuer Notes); or
(ii) LIBOR for three-month Dollar deposits (in relation to
the Series 1 Class B Eighth Issuer Notes, the Series
1 Class C Eighth Issuer Notes, the Series 2 Eighth
Issuer Notes and the Series 3 Eighth Issuer Notes);
or
(b) fluctuations in the relevant currency swap rate between Euro
and Sterling or the possible variance between LIBOR for
three-month Sterling deposits and EURIBOR for three-month Euro
deposits (in relation to the Series 4 Eighth Issuer Notes)
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in each case, on terms acceptable to the Rating Agencies and the Eighth
Issuer and the Security Trustee and with a swap provider whom the
Rating Agencies have previously confirmed in writing to the Eighth
Issuer and the Security Trustee will not cause the then current ratings
of the Eighth Issuer Notes to be downgraded.
5.5 If the Eighth Issuer receives a Refund Payment (as such term is defined
in the definition of Eighth Issuer Revenue Receipts) then the Eighth
Issuer, or the Eighth Issuer Cash Manager on its behalf, will
distribute such Refund Payment as part of the Eighth Issuer Revenue
Receipts in accordance with the relevant priority of payments.
6. NO LIABILITY
Save as otherwise provided in this Agreement, the Eighth Issuer Cash
Manager shall have no liability for the obligations of either the
Security Trustee or the Eighth Issuer under any of the Transaction
Documents or otherwise and nothing in this Agreement shall constitute a
guarantee, or similar obligation, by the Eighth Issuer Cash Manager of
either Funding 1, the Security Trustee or the Eighth Issuer in respect
of any of them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Eighth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Eighth Issuer
Post-Enforcement Priority of Payments, the Eighth Issuer will on each
Interest Payment Date reimburse the Eighth 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
Eighth Issuer Cash Manager in the performance of the Eighth Issuer Cash
Management Services including any such costs, expenses or charges not
reimbursed to the Eighth Issuer Cash Manager on any previous Interest
Payment Date and the Eighth Issuer Cash Manager shall supply the Eighth
Issuer with an appropriate VAT invoice issued by the Eighth Issuer Cash
Manager or, if the Eighth 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 Eighth Issuer Cash Manager represents and warrants that at the date
hereof in respect of the software which is to be used by the Eighth
Issuer Cash Manager in providing the Eighth Issuer Cash Management
Services it has in place all necessary licences and/or consents from
the respective licensor or licensors (if any) of such software.
(b) The Eighth 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
Eighth Issuer and the Security Trustee elect 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 Eighth Issuer Cash Manager shall use reasonable endeavours to
maintain in working order the information technology systems used by
the Eighth Issuer Cash Manager in providing the Eighth Issuer Cash
Management Services.
(d) The Eighth 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
Eighth Issuer and the Security Trustee elect as a substitute cash
manager in accordance with the terms of this Agreement the benefit of
any warranties in relation to the software insofar as the same are
capable of assignment.
8.2 BANK ACCOUNT STATEMENTS
The Eighth Issuer Cash Manager shall take all reasonable steps to
ensure that it receives a monthly bank statement in relation to each of
the Eighth Issuer Bank Accounts (subject to CLAUSE 6.3 of the Eighth
Issuer Bank Account Agreement) and that it furnishes a copy of such
statements to the Eighth Issuer and the Security Trustee, unless
otherwise agreed.
8.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Eighth Issuer Cash Manager shall
permit the Auditors of the Eighth Issuer and any other person nominated
by the Security Trustee (to whom the Eighth 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 Eighth Issuer Cash Management Services provided by the Eighth
Issuer Cash Manager and related matters in accordance with this
Agreement.
8.4 STATUTORY OBLIGATIONS
The Eighth Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Eighth Issuer, to prepare or procure the preparation of
and file all reports, annual returns, financial statements, statutory
forms and other returns which the Eighth Issuer is required by law to
prepare and file. Subject to approval thereof by the directors of the
Eighth Issuer, the Eighth 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 Security
Trustee, the Eighth Issuer and the Rating Agencies as soon as
practicable after the end of each accounting reference period of the
Eighth Issuer.
8.5 INFORMATION COVENANTS
(a) The Eighth Issuer Cash Manager shall provide the Eighth Issuer, the
Security Trustee, the Seller and the Rating Agencies with a quarterly
report substantially in the form set out in SCHEDULE 3, or in such
other form reasonably acceptable to the recipients thereof, in respect
of the Eighth Issuer. Each such quarterly report shall be delivered to
the Eighth Issuer, the 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 Eighth Issuer Cash Manager shall provide, or procure the provision
of, to the Eighth Issuer, the 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 upon the request of any such person.
(c) The Eighth Issuer Cash Manager shall notify the Rating Agencies in
writing of the details of:
(i) any material amendment to the Eighth Issuer Transaction
Documents;
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(ii) the occurrence of an Eighth Issuer Note Event of Default; and
(iii) any other information relating to the Eighth 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 Eighth
Issuer Cash Manager's day-to-day provision of the Eighth
Issuer Cash Management Services under the other terms of this
Agreement.
(d) The Eighth Issuer Cash Manager shall, at the request of the Security
Trustee, furnish the Security Trustee and the Rating Agencies with such
other information relating to its business and financial condition as
it may be reasonable for the Security Trustee to request in connection
with this Agreement PROVIDED THAT the Security Trustee shall not make
such a request more than once every three months unless, in the belief
of the Security Trustee, an Eighth Issuer Intercompany Loan Event of
Default, Eighth Issuer Note Event of Default or Eighth 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 Eighth Issuer Cash Manager's day-to-day provision of the Eighth
Issuer Cash Management Services under the other terms of this
Agreement.
9. REMUNERATION
9.1 FEE PAYABLE
The Eighth Issuer shall pay to the Eighth Issuer Cash Manager for the
Eighth Issuer Cash Management Services a cash management fee (which
shall be inclusive of VAT) which shall be agreed in writing between the
Eighth Issuer, the Security Trustee and the Eighth 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
Eighth Issuer Cash Manager in arrear on each Quarterly Interest Payment
Date in the manner contemplated by and in accordance with the
provisions of the Eighth Issuer Pre-Enforcement Revenue Priority of
Payments or, as the case may be, the Eighth Issuer Post-Enforcement
Priority of Payments.
10. COVENANTS OF EIGHTH ISSUER CASH MANAGER
10.1 COVENANTS
The Eighth Issuer Cash Manager hereby covenants with and undertakes to
each of the Eighth Issuer and the Security Trustee that without
prejudice to any of its specific obligations under this Agreement:
(a) it will devote all due skill, care and diligence to the
performance of its obligations and the exercise of its
discretions under this Agreement;
(b) it will comply with any proper directions, orders and
instructions which the Eighth Issuer or the 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 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 Eighth
Issuer Cash Management Services and prepare and submit all
necessary applications and
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requests for any further approval, authorisation, consent or
licence required in connection with the performance of the
Eighth Issuer Cash Management Services;
(d) save as otherwise agreed with the Eighth Issuer and the
Security Trustee, it will provide free of charge to the Eighth
Issuer during normal office hours office space, facilities,
equipment and staff sufficient to fulfil the obligations of
the Eighth Issuer under this Agreement;
(e) it will not knowingly fail to comply with any legal
requirements in the performance of the Eighth 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 Security
Trustee, amend or terminate any of the Eighth Issuer
Transaction Documents save in accordance with their terms.
10.2 DURATION OF COVENANTS
The covenants of the Eighth 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 Eighth Issuer and/or the
Security Trustee arising from breach of any such covenant prior to the
date of termination of this Agreement.
11. NON-EXCLUSIVITY
Nothing in this Agreement shall prevent the Eighth 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 Eighth Issuer or the Security Trustee.
12. TERMINATION
12.1 EIGHTH ISSUER CASH MANAGER TERMINATION EVENTS
If any of the following events (EIGHTH ISSUER CASH MANAGER TERMINATION
EVENTS) shall occur:
(a) default is made by the Eighth 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 Eighth Issuer Cash Manager becoming aware of such default
and receipt by the Eighth Issuer Cash Manager of written
notice from the Eighth Issuer or the Security Trustee, as the
case may be, requiring the same to be remedied; or
(b) default is made by the Eighth 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 Security Trustee is materially prejudicial to
the interests of the Eighth Issuer Secured Creditors and such
default continues unremedied for a period of twenty London
Business Days after the earlier of the Eighth Issuer Cash
Manager becoming aware of such default and receipt by the
Eighth Issuer Cash Manager of written notice from the Security
Trustee requiring the same to be remedied; or
(c) while the Eighth Issuer Cash Manager is the Seller, an
Insolvency Event occurs,
10
then the Security Trustee may at once or at any time thereafter while
such default continues by notice in writing to the Eighth Issuer Cash
Manager terminate its appointment as Eighth 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 EIGHTH ISSUER CASH MANAGER
The appointment of the Eighth Issuer Cash Manager under this Agreement
may be terminated upon the expiry of not less than 12 months' written
notice of termination given by the Eighth Issuer Cash Manager to the
Eighth Issuer and the Security Trustee PROVIDED THAT:
(a) the Eighth Issuer and the 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 Eighth Issuer and the 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
Eighth Issuer and the Security Trustee and the Eighth 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 Eighth Issuer under such agreement are
charged in favour of the Security Trustee on terms
satisfactory to the Security Trustee; and
(e) the then current ratings (if any) of the Eighth Issuer Notes
are not adversely affected as a result thereof.
12.3 EFFECT OF TERMINATION
(a) On and after termination of the appointment of the Eighth Issuer Cash
Manager under this Agreement pursuant to this CLAUSE 12, all authority
and power of the Eighth Issuer Cash Manager under this Agreement shall
be terminated and be of no further effect and the Eighth Issuer Cash
Manager shall not thereafter hold itself out in any way as the agent of
the Eighth Issuer or the Security Trustee pursuant to this Agreement.
(b) Upon termination of the appointment of the Eighth Issuer Cash Manager
under this Agreement pursuant to this CLAUSE 12, the Eighth Issuer Cash
Manager shall:
(i) forthwith deliver (and in the meantime hold on trust for, and
to the order of, the Eighth Issuer or the Security Trustee, as
the case may be) to the Eighth Issuer or the Security Trustee,
as the case may be or as it shall direct in writing, 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 Eighth Issuer or the
Security Trustee, as the case may be, (if practicable, on the
date of receipt) any monies then held by the Eighth Issuer
Cash Manager on behalf of the Eighth Issuer, the Security
Trustee and any other assets of the Eighth Issuer and the
Security Trustee;
(ii) take such further action as the Eighth Issuer or the Security
Trustee, as the case may be, may reasonably direct at the
expense of the Eighth Issuer or the Security Trustee, as the
case may be (including in relation to the appointment of a
substitute cash manager) provided that the
11
Security Trustee shall not be required to take or direct to be
taken such further action unless it has been indemnified
and/or secured 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 Eighth Issuer or
the 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
Eighth Issuer or the Security Trustee or such nominee, as the
case may be.
12.4 NOTICE OF EVENT OF DEFAULT
The Eighth Issuer Cash Manager shall deliver to the Eighth Issuer and
the Security Trustee as soon as reasonably practicable but in any event
within three London Business Days of becoming aware thereof a notice of
any Eighth Issuer Cash Manager Termination Event or any Eighth 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
Eighth Issuer Cash Manager Termination Event or Eighth Issuer Note
Event of Default would constitute the same.
12.5 GENERAL PROVISIONS RELATING TO TERMINATION
(a) Termination of the appointment of the Eighth Issuer Cash Manager under
this Agreement shall be without prejudice to the liabilities of the
Eighth Issuer and the Security Trustee to the Eighth Issuer Cash
Manager or vice versa incurred before the date of such termination. The
Eighth 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
Eighth Issuer or the Security Trustee.
(b) This Agreement shall terminate at such time as the Eighth Issuer
Secured Obligations have been fully discharged.
(c) On termination of the appointment of the Eighth Issuer Cash Manager
under the provisions of this CLAUSE 12, the Eighth Issuer Cash Manager
shall be entitled to receive all fees and other moneys accrued up to
(but excluding) the date of termination but shall not be entitled to
any other or further compensation. The Eighth Issuer shall pay such
moneys so receivable by the Eighth Issuer Cash Manager in accordance
with the Eighth Issuer Pre-Enforcement Revenue Priority of Payments or,
as the case may be, the Eighth Issuer Post-Enforcement Priority of
Payments, on the dates on which they would otherwise have fallen due
hereunder. Such termination shall not affect the Eighth Issuer Cash
Manager's rights to receive payment of all amounts (if any) due to it
from the Eighth Issuer other than under this Agreement.
(d) Any provision of this Agreement which is stated to continue after
termination of this Agreement shall remain in full force and effect
notwithstanding termination.
13. FURTHER ASSURANCE
13.1 CO-OPERATION, ETC.
The parties to this Agreement 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.
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13.2 POWERS OF ATTORNEY
Without prejudice to the generality of CLAUSE 13.1, the Eighth Issuer
and the Security Trustee shall upon request by the Eighth Issuer Cash
Manager forthwith give to the Eighth Issuer Cash Manager such further
powers of attorney or other written authorisations, mandates or
instruments as are necessary to enable the Eighth Issuer Cash Manager
to perform the Eighth Issuer Cash Management Services.
13.3 CHANGE OF SECURITY TRUSTEE
In the event that there is any change in the identity of the Security
Trustee or an additional security trustee is appointed in accordance
with the Eighth Issuer Deed of Charge, the Eighth Issuer Cash Manager
shall execute such documents with any other parties to this Agreement
and take such actions as such new security trustee may reasonably
require for the purposes of vesting in such new security trustee the
rights of the Security Trustee under this Agreement and under the
Eighth Issuer Deed of Charge and releasing the retiring Security
Trustee from further obligations thereunder.
13.4 NO OBLIGATION ON SECURITY TRUSTEE
Nothing contained in this Agreement shall impose any obligation or
liability on the Security Trustee to assume or perform any of the
obligations of the Eighth Issuer or the Eighth Issuer Cash Manager
under this Agreement or render it liable for any breach thereof.
14. MISCELLANEOUS
14.1 NO SET-OFF
The Eighth Issuer Cash Manager agrees that it will not:
(a) set-off or purport to set-off any amount which either the
Eighth 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 any Eighth Issuer
Account; 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 be standing to the credit of any Eighth Issuer
Account.
14.2 NO PETITION
The Eighth Issuer Cash Manager agrees that for so long as any Eighth
Issuer Notes are outstanding it will not petition or commence
proceedings for the administration or winding-up of the Eighth 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 Eighth Issuer or serve a notice of intention to appoint
an administrator in relation to the Eighth Issuer.
14.3 NO RECOURSE
(a) In relation to all sums due and payable by the Eighth Issuer to the
Eighth Issuer Cash Manager, the Eighth Issuer Cash Manager agrees that
it shall have recourse only to sums paid to or received by (or on
behalf of) the Eighth Issuer pursuant to the provisions of the Eighth
Issuer Transaction Documents.
(b) For the avoidance of doubt, the Security Trustee shall not be liable to
pay any amounts due under CLAUSES 7 and 9, and without prejudice to the
obligations of the Eighth Issuer, nor shall it be liable to
13
pay any amounts due to any Receiver appointed pursuant to the Eighth
Issuer Deed of Charge in respect of such amounts.
(c) Notwithstanding any other provisions of this Agreement, all obligations
to, and rights of, the 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 Eighth 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 Eighth Issuer, the Eighth Issuer Cash Manager and the Security
Trustee shall use its best endeavours not to disclose to any person,
firm or company any information relating to the business, finances or
other matters of a confidential nature of any other party to this
agreement 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 of competent
jurisdiction 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);
(e) to the extent that the recipient needs to disclose the same
for determining the existence of, or declaring, an Eighth
Issuer Note Event of Default, or an Eighth Issuer Cash Manager
Termination Event, the protection or enforcement of any of its
rights under any of the 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 Eighth Issuer or any
New Issuer) to any Rating Agency or any prospective new cash
manager or 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:
14
(a) in the case of the Eighth Issuer Cash Manager: to Halifax plc
at Xxxxxxx Xxxx (XX/0/0/XXX), Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX
(facsimile number x00 (0) 000 000 0000) for the attention of
the Head of Mortgage Securitisation with a copy to HBOS
Treasury Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
(facsimile no. x00 (0) 00 0000 0000) for the attention of Head
of Mortgage Securitisation and Covered Bonds;
(b) in the case of the Eighth Issuer: to Permanent Financing (No.
8) PLC at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (facsimile
number x00 (0) 00 0000 0000) for the attention of the
Directors with a copy to Halifax plc at Xxxxxxx Xxxx
(XX/0/0/XXX), Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (facsimile
number x00 (0) 000 000 0000) for the attention of the Head of
Mortgage Securitisation; and
(c) in the case of the Security Trustee: to The Bank of New York,
00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile
number x00 (0) 00 0000 0000) 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.
19. ASSIGNMENT
19.1 ASSIGNMENT BY THE EIGHTH ISSUER
The Eighth Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of
each of the Security Trustee and the Eighth Issuer Cash Manager, except
that the Eighth Issuer may assign its respective rights hereunder
without such consent pursuant to the Eighth Issuer Deed of Charge.
19.2 NO ASSIGNMENT BY EIGHTH ISSUER CASH MANAGER
The Eighth Issuer Cash Manager may not assign or transfer any of its
rights and obligations under this Agreement without the prior written
consent of the Eighth Issuer and the Security Trustee, such consent not
to be unreasonably withheld or delayed.
20. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
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21. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually
or by facsimile) each of which, when executed and delivered, shall
constitute an original, but all the counterparts shall together
constitute but one and the same instrument provided, however, that this
Agreement shall have no force or effect until it is executed by the
last party to execute the same and shall be deemed to have been
executed and delivered in the place where such last party executed this
Agreement.
22. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
23. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English courts are an
inconvenient forum for the maintenance or hearing of such action or
proceeding.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed the
day and year first before written.
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SCHEDULE 1
CASH MANAGEMENT SERVICES
The Eighth Issuer Cash Manager shall:
(a) operate the Eighth Issuer Accounts and ensure that payments are made
into and from such accounts in accordance with this Agreement, the
Eighth Issuer Deed of Charge, the Eighth Issuer Bank Account Agreement
and any other relevant Eighth Issuer Transaction Document, PROVIDED
HOWEVER THAT nothing herein shall require the Eighth Issuer Cash
Manager to make funds available to the Eighth 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,
those relating to VAT);
(c) subject to any applicable law, assist the Auditors of the Eighth Issuer
and provide such information to them as they may reasonably request for
the purpose of carrying out their duties as auditors of the Eighth
Issuer;
(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 Eighth Issuer or required to be given by the Eighth Issuer pursuant
to the Eighth Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Eighth Issuer under any
of the Eighth Issuer Transaction Documents, PROVIDED THAT such moneys
are at the relevant time available to the Eighth Issuer and PROVIDED
FURTHER THAT nothing herein shall constitute a guarantee by the Eighth
Issuer Cash Manager of all or any of the obligations of the Eighth
Issuer under any of the Eighth Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Eighth
Issuer Corporate Services Provider under the Eighth Issuer Corporate
Services Agreement, keep general books of account and records of the
Eighth 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 Eighth
Issuer Corporate Services Provider under the Eighth Issuer Corporate
Services Agreement, provide or procure the provision of company
secretarial and administration services to the Eighth 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 Eighth Issuer, PROVIDED THAT monies are at the
relevant time available to the Eighth Issuer, pay all out-of-pocket
expenses of the Eighth Issuer, incurred by the Eighth Issuer Cash
Manager on behalf of the Eighth Issuer in the performance of the Eighth
Issuer Cash Manager's duties hereunder including without limitation:
(i) all Taxes which may be due or payable by the Eighth 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 Security Trustee, invest monies
standing from time to time to the credit of an Eighth Issuer Account
in Authorised Investments, subject to the following provisions:
(i) any such Authorised Investment shall be made in the joint
names of the Eighth Issuer and the Security Trustee;
(ii) any costs properly and reasonably incurred in making and
changing Authorised Investments will be reimbursed to the
Eighth Issuer Cash Manager and the Security Trustee by the
Eighth Issuer; and
(iii) all income and other distributions arising on, or proceeds
following the disposal or maturity of, Authorised Investments
shall be credited to the relevant Eighth Issuer Account.
The Security Trustee and the Eighth Issuer Cash Manager shall
not be responsible (save where any loss results from the Security
Trustee's or the Eighth Issuer Cash Manager's, as the case may be, own
fraud, wilful default or negligence or that of their respective
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; and
(ii) for the purposes of any calculations referred to in
sub-paragraph (i) above, 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 Eighth Issuer
and provide or procure the provision of company secretarial and
administration services to the Eighth 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.
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SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. DETERMINATION
(a) On each Eighth Issuer Note Determination Date, the Eighth Issuer Cash
Manager shall determine each of the following in accordance with this
paragraph 1:
(i) the amount of any Eighth Issuer Principal Receipts and Eighth
Issuer Revenue Receipts available as at the following Interest
Payment Date; and
(ii) the Principal Amount Outstanding of the Eighth Issuer Notes,
the Pool Factor, and the Note Principal Payment of the Eighth
Issuer Notes in accordance with the Conditions.
(b) The Eighth Issuer Cash Manager shall determine and notify the Eighth
Issuer, the Note Trustee, the Registrar and the Paying Agents on or
prior to 11:00 a.m. (London time) on the last day of each Interest
Period of any Additional Amount payable in respect of such Interest
Period.
(c) (i) The Eighth Issuer Cash Manager may make all the
determinations referred to in paragraph 1(a) and paragraph
1(b) on the basis of any reasonable and proper assumptions as
the Eighth 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 Eighth Issuer Note Determination Date to but
excluding the next Interest Payment Date).
(ii) The Eighth Issuer Cash Manager shall on request notify the
Eighth Issuer and the Security Trustee in writing of any such
other assumptions and shall take account of any
representations made by the Eighth Issuer and the 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 fraud, wilful default, negligence and/or manifest error)
be final and binding on all persons.
2. NOTIFICATION OF DETERMINATIONS
(a) The Eighth Issuer Cash Manager will cause each determination of Eighth
Issuer Available Funds to be notified forthwith to the Eighth Issuer.
(b) The Eighth Issuer Cash Manager shall procure that the determinations
and notifications required to be made pursuant to CONDITION 5(C) of the
Conditions are made.
(c) The Eighth Issuer Cash Manager will promptly notify the Eighth Issuer
and each Calculation Agent (as defined in each of the Funding 1 Swap
Agreement and each relevant Eighth Issuer Swap Agreement) of the
relevant Note Principal Payment determined in accordance with paragraph
1(a)(ii) above.
3. PRIORITY OF PAYMENTS FOR EIGHTH ISSUER REVENUE RECEIPTS
Eighth Issuer Revenue Receipts will be applied, as applicable:
(i) on each Interest Payment Date; or
19
(ii) on each day when due in respect of amounts due to third
parties pursuant to paragraph (b) below or amounts due to the
Eighth Issuer Account Bank under the Eighth Issuer Bank
Account Agreement pursuant to paragraph (d) below,
in each case until enforcement of the Eighth Issuer Security pursuant
to the Eighth Issuer Deed of Charge or until such time as there are no
Eighth 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 and to the extent that such withdrawal does not cause
the Eighth Issuer Transaction Account to become overdrawn) (the EIGHTH
ISSUER PRE-ENFORCEMENT REVENUE PRIORITY OF PAYMENTS):
(a) first, pari passu and pro rata, to pay amounts due to:
(i) the Security Trustee, together with interest and any
amount in respect of VAT on those amounts, and to
provide for any amounts due or to become due during
the following Interest Period to the Security Trustee
under the Eighth Issuer Deed of Charge;
(ii) the Note Trustee, together with interest and any
amount in respect of VAT on those amounts, and to
provide for any amounts due or to become due during
the following Interest Period to the Note Trustee
under the Eighth Issuer Trust Deed; and
(iii) the Agent Bank, the Paying Agents, the Registrar and
the Transfer Agent, together with interest and any
amount in respect of VAT on those amounts, and any
costs, charges liabilities and expenses then due or
to become due during the following Interest Period to
the Agent Bank, the Registrar, the Transfer Agent and
the Paying Agents under the Eighth Issuer Paying
Agent and Agent Bank Agreement;
(b) secondly, to pay amounts due to any third party creditors of
the Eighth Issuer (other than those referred to later in this
order of priority of payments), which amounts have been
incurred without breach by the Eighth Issuer of the Eighth
Issuer Transaction Documents and for which payment has not
been provided for elsewhere and to provide for any of those
amounts expected to become due and payable during the
following Interest Period by the Eighth Issuer and to pay or
discharge any liability of the Eighth Issuer for corporation
tax on any chargeable income or gain of the Eighth Issuer;
(c) thirdly, pari passu and pro rata, to pay amounts due to the
Eighth Issuer Cash Manager, together with any amount in
respect of VAT on those amounts, and to provide for any
amounts due, or to become due to the Eighth Issuer Cash
Manager in the immediately succeeding Interest Period, under
this Agreement and to the Corporate Services Provider under
the Eighth Issuer Corporate Services Agreement and to the
Eighth Issuer Account Bank under the Eighth Issuer Bank
Account Agreement;
(d) fourthly, pari passu and pro rata, to pay:
(i) on each Funding 1 Interest Payment Date amounts due
to the Series 1 Class A Eighth Issuer Swap Provider
in respect of the Series 1 Class A Eighth Issuer Swap
(including any termination payment but excluding any
related Eighth Issuer Swap Excluded Termination
Amount) and from amounts received from the Series 1
Class A Eighth Issuer Swap Provider to pay on each
Interest Payment Date interest due and payable on the
Series 1 Class A Eighth Issuer Notes;
(ii) amounts due to the Series 2 Class A Eighth Issuer
Swap Provider in respect of the Series 2 Class A
Eighth Issuer Swap (including any termination payment
but
20
excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 2 Class A Eighth Issuer Swap Provider to
pay on each Interest Payment Date interest due and
payable on the Series 2 Class A Eighth Issuer Notes;
(iii) amounts due to the Series 3 Class A Eighth Issuer
Swap Provider in respect of the Series 3 Class A
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 3 Class A Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 3 Class A
Eighth Issuer Notes;
(iv) amounts due to the Series 4 Class A Eighth Issuer
Swap Provider in respect of the Series 4 Class A
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 4 Class A Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 4 Class A
Eighth Issuer Notes; and
(v) interest due and payable on the Series 5 Class A
Eighth Issuer Notes;
(e) fifthly, pari passu and pro rata, to pay:
(i) amounts due to the Series 1 Class B Eighth Issuer
Swap Provider in respect of the Series 1 Class B
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 1 Class B Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 1 Class B
Eighth Issuer Notes;
(ii) amounts due to the Series 2 Class B Eighth Issuer
Swap Provider in respect of the Series 2 Class B
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 2 Class B Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 2 Class B
Eighth Issuer Notes;
(iii) amounts due to the Series 3 Class B Eighth Issuer
Swap Provider in respect of the Series 3 Class B
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 3 Class B Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 3 Class B
Eighth Issuer Notes; and
(iv) amounts due to the Series 4 Class B Eighth Issuer
Swap Provider in respect of the Series 4 Class B
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 4 Class B Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 4 Class B
Eighth Issuer Notes;
21
(f) sixthly, pari passu and pro rata, to pay:
(i) amounts due to the Series 1 Eighth Class C Issuer
Swap Provider in respect of the Series 1 Class C
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 1 Class C Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 1 Class C
Eighth Issuer Notes;
(ii) amounts due to the Series 2 Eighth Class C Issuer
Swap Provider in respect of the Series 2 Class C
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 2 Class C Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 2 Class C
Eighth Issuer Notes;
(iii) amounts due to the Series 3 Eighth Class C Issuer
Swap Provider in respect of the Series 3 Class C
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 3 Class C Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 3 Class C
Eighth Issuer Notes; and
(iv) amounts due to the Series 4 Eighth Class C Issuer
Swap Provider in respect of the Series 4 Class C
Eighth Issuer Swap (including any termination payment
but excluding any related Eighth Issuer Swap Excluded
Termination Amount) and from amounts received from
the Series 4 Class C Eighth Issuer Swap Provider in
relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 4 Class C
Eighth Issuer Notes;
(g) seventhly, pari passu and pro rata, to pay any termination
payment due (without double counting) to:
(i) the Series 1 Eighth Issuer Swap Provider following an
Eighth Issuer Swap Provider Default or an Eighth
Issuer Swap Provider Downgrade Termination Event in
respect of the Series 1 Eighth Issuer Swap Provider;
(ii) the Series 2 Eighth Issuer Swap Provider following an
Eighth Issuer Swap Provider Default or an Eighth
Issuer Swap Provider Downgrade Termination Event in
respect of the Series 2 Eighth Issuer Swap Provider;
(iii) the Series 3 Eighth Issuer Swap Provider following an
Eighth Issuer Swap Provider Default or an Eighth
Issuer Swap Provider Downgrade Termination Event in
respect of the Series 3 Eighth Issuer Swap Provider;
and
(iv) the Series 4 Eighth Issuer Swap Provider following an
Eighth Issuer Swap Provider Default or an Eighth
Issuer Swap Provider Downgrade Termination Event in
respect of the Series 4 Eighth Issuer Swap Provider;
(h) eighthly, to the Eighth Issuer, an amount equal to 0.01 per
cent. of the interest received on the Eighth Issuer Term
Advances, to be retained by the Eighth Issuer as profit; and
(i) ninthly, to the Eighth Issuer.
22
4. PRIORITY OF PAYMENTS FOR EIGHTH ISSUER PRINCIPAL RECEIPTS
Subject to CONDITION 5 of the Eighth Issuer Notes, until enforcement of
the Eighth Issuer Security pursuant to the Eighth Issuer Deed of Charge
or until such time as there are no Eighth Issuer Notes outstanding,
Eighth Issuer Principal Receipts will be applied as follows:
(a) the Series 1 Class A Eighth Issuer Notes shall be redeemed on
the relevant Interest Payment Date in an amount equal to the
amount, repaid on that Interest Payment Date in respect of the
Eighth Issuer Series 1 Term AAA Advance, converted into
Dollars at the relevant Dollar Currency Exchange Rate;
(b) the Series 2 Class A Eighth 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
Eighth Issuer Series 2 Term AAA Advance, converted into
Dollars at the relevant Dollar Currency Exchange Rate;
(c) the Series 3 Class A Eighth 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
Eighth Issuer Series 3 Term AAA Advance, converted into
Dollars at the relevant Dollar Currency Exchange Rate;
(d) the Series 4 Class A Eighth 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
Eighth Issuer Series 4 Term AAA Advance, converted into Euro
at the relevant Euro Currency Exchange Rate;
(e) the Series 5 Class A1 Eighth 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
Eighth Issuer Series 5A1 Term AAA Advance;
(f) the Series 5 Class A2 Eighth 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
Eighth Issuer Series 5A2 Term AAA Advance;
(g) the Series 1 Class B Eighth 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
Eighth Issuer Series 1 Term AA Advance, converted into Dollars
at the relevant Dollar Currency Exchange Rate;
(h) the Series 2 Class B Eighth 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
Eighth Issuer Series 2 Term AA Advance, converted into Dollars
at the relevant Dollar Currency Exchange Rate;
(i) the Series 3 Class B Eighth 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
Eighth Issuer Series 3 Term AA Advance, converted into Dollars
at the relevant Dollar Currency Exchange Rate;
(j) the Series 4 Class B Eighth 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
Eighth Issuer Series 4 Term AA Advance, converted into Euro at
the Euro Currency Exchange Rate;
23
(k) the Series 1 Class C Eighth 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
Eighth Issuer Series 1 Term BBB Advance, converted into
Dollars at the relevant Dollar Currency Exchange Rate;
(l) the Series 2 Class C Eighth 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
Eighth Issuer Series 2 Term BBB Advance, converted into
Dollars at the relevant Dollar Currency Exchange Rate;
(m) the Series 3 Class C Eighth 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
Eighth Issuer Series 3 Term BBB Advance, converted into
Dollars at the Dollars Currency Exchange Rate; and
(n) the Series 4 Class C Eighth 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
Eighth Issuer Series 4 Term BBB Advance, converted into Euro
at the Euro Currency Exchange Rate.
24
SCHEDULE 3
FORM OF EIGHTH ISSUER QUARTERLY REPORT
PERMANENT FINANCING (NO. 8) PLC
PERIOD ENDED THIS QUARTER ((POUND))
INTERCOMPANY LOAN BALANCES
Total intercompany loan balance
Last Quarter Closing balance
Repayments
New Term Advances
Cash Accumulated
---------------------------
Closing Balance
===========================
CASH ACCUMULATION LEDGER
Opening Balance
Losses this Quarter
Principal Received
Principal paid
---------------------------
Closing Balance
===========================
AVAILABLE CREDIT ENHANCEMENT
Reserve Fund at closing (22/06/2005)
Last Quarter Closing Reserve Fund
Replenishments this quarter
Drawings to make a bullet repayment
Other drawings
---------------------------
Closing Reserve Fund Balance
===========================
Target Reserve Fund
===========================
PRINCIPAL DEFICIENCY LEDGER AAA AA BBB
Opening PDL Balance
Losses this Quarter
PDL top up from Revenue Income
--------------------------- -------------------- --------------------
Closing PDL Balance
=========================== ==================== ====================
SUBORDINATED LOANS OUTSTANDING
Outstanding start up loan balance
Last Quarter Closing Outstanding
Accrued Interest
New Loans
Repayments Made
---------------------------
Closing Balance
===========================
25
PERMANENT FINANCING
(NO. 8) PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 1 SERIES 2 SERIES 3 SERIES 4 SERIES 5 SERIES 5 SERIES 5
CLASS A CLASS A CLASS A CLASS A CLASS A1 CLASS A2 CLASS A3
Xxxxx'x Current P-1 Aaa Aaa Aaa Aaa Aaa Aaa
Rating
Fitch Current Rating F1+ AAA AAA AAA AAA AAA AAA
S&P Current Rating A-1+ AAA AAA AAA AAA AAA AAA
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS B CLASS B CLASS B CLASS B
Xxxxx'x Current Aa3 Aa3 Aa3 Aa3
Rating
Fitch Current Rating AA AA AA AA
S&P Current Rating AA AA AA AA
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS C CLASS C CLASS C CLASS C
Xxxxx'x Current Xxx0 Xxx0 Xxx0 Xxx0
Rating
Fitch Current Rating BBB BBB BBB BBB
S&P Current Rating BBB BBB BBB BBB
SERIES 1 SERIES 2 SERIES 3 SERIES 4 SERIES 5 SERIES 5 SERIES 5
CLASS A CLASS A CLASS A CLASS A CLASS A1 CLASS A2 CLASS A3
Initial Note Balance
Previous Quarters
Note Principal
Note Redemptions
Outstanding Note
Principal
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS B CLASS B CLASS B CLASS B
Initial Note Balance
Previous Quarters
Note Principal
Note Redemptions
Outstanding Note
Principal
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS C CLASS C CLASS C CLASS C
Initial Note Balance
Previous Quarters
Note Principal
Note Redemptions
Outstanding Note
Principal
SERIES 1 SERIES 2 SERIES 3 SERIES 4 SERIES 5 SERIES 5 SERIES 5
CLASS A CLASS A CLASS A CLASS A CLASS A1 CLASS A2 CLASS A3
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS B CLASS B CLASS B CLASS B
Note Interest Margins
Step Up Dates
Step Up Margins
26
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS C CLASS C CLASS C CLASS C
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 SERIES 2 SERIES 3 SERIES 4 SERIES 5 SERIES 5 SERIES 5
CLASS A CLASS A CLASS A CLASS A CLASS A1 CLASS A2 CLASS A3
Interest Payment
Cycle
Interest Payment Date
Next Interest
Payment Date
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS B CLASS B CLASS B CLASS B
Interest Payment
Cycle
Interest Payment Date
Next Interest
Payment Date
SERIES 1 SERIES 2 SERIES 3 SERIES 4
CLASS C CLASS C CLASS C CLASS C
Interest Payment
Cycle
Interest Payment Date
Next Interest
Payment Date
27
SIGNATORIES
EIGHTH ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of ) .................................
HALIFAX PLC in the presence of: ) (as attorney as aforesaid)
Witness's signature:.................................
Name: .................................
Address: .................................
EIGHTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 8) PLC ) .................................
in the presence of: ) (as attorney as aforesaid)
Witness's signature:.................................
Name: .................................
Address: .................................
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) .................................
28
