Exhibit 4.9
EXECUTION COPY
SIXTH ISSUER CASH MANAGEMENT AGREEMENT
DATED 18TH NOVEMBER, 2004
HALIFAX PLC
AND
PERMANENT FINANCING (NO. 6) PLC
AND
THE BANK OF NEW YORK
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation........................................................3
2. Appointment of Sixth Issuer Cash Manager..............................................3
3. Sixth Issuer Cash Management Services.................................................4
4. Payments, Accounts, Ledgers...........................................................5
5. Payments under Sixth Issuer Swap Agreements, Payments to the Principal Paying
Agents and Termination of Sixth Issuer Swap Agreements................................7
6. No Liability..........................................................................9
7. Costs and Expenses....................................................................9
8. Information...........................................................................9
9. Remuneration.........................................................................11
10. Covenants of Sixth Issuer Cash Manager...............................................11
11. Non-Exclusivity......................................................................12
12. Termination..........................................................................12
13. Further Assurance....................................................................15
14. Miscellaneous........................................................................15
15. Confidentiality......................................................................16
16. Notices..............................................................................17
17. Variation and Waiver.................................................................17
18. No Partnership.......................................................................17
19. Assignment...........................................................................18
20. Exclusion of Third Party Rights......................................................18
21. Counterparts.........................................................................18
22. Governing Law........................................................................18
23. Submission to Jurisdiction...........................................................18
SCHEDULE
1. Cash Management Services.............................................................19
2. Cash Management and Maintenance of Ledgers...........................................21
3. Form of Sixth Issuer Quarterly Report................................................27
Signatories...................................................................................30
THIS SIXTH ISSUER CASH MANAGEMENT AGREEMENT is made on 18th November, 2004
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 SIXTH ISSUER CASH
MANAGER);
(2) PERMANENT FINANCING (NO. 6) PLC, a public limited company incorporated
under the laws of England and Wales (registered number 5232464) whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X
0XX (the SIXTH 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 Sixth Issuer Closing Date the Sixth Issuer will issue the Sixth
Issuer Notes. The Sixth Issuer will make the Sixth Issuer Term Advances
to Funding 1 from the proceeds of the issue of the Sixth Issuer Notes.
(B) The Sixth Issuer Cash Manager is willing to provide cash management
services to the Sixth 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 18th
November, 2004 (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 sixth issuer
master definitions and construction schedule, signed for the purposes
of identification by Xxxxx & Xxxxx LLP and Sidley Xxxxxx Xxxxx & Xxxx
on 18th November, 2004 (as the same may be amended, varied or
supplemented from time to time) (the SIXTH 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 Sixth 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 Sixth Issuer
Master Definitions and Construction Schedule and the Master Definitions
and Construction Schedule.
2. APPOINTMENT OF SIXTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to CLAUSE 12, the Sixth Issuer and the
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
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Agreement. 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 in this Agreement 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 Sixth Issuer 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 18th November, 2004, or such later date as the
Sixth Issuer and the Lead Managers may agree, this Agreement shall
cease to be of further effect.
3. SIXTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Sixth Issuer Cash Manager shall provide the services set out in
this Agreement (including, for the avoidance of doubt, 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 is reasonably able to 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 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 Security Trustee or any other person for any failure by the Sixth
Issuer to make any payment due 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 Sixth Issuer Transaction Documents).
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3.4 LIABILITY OF SIXTH ISSUER CASH MANAGER
(a) The Sixth Issuer Cash Manager shall indemnify each of the Sixth 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 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 Sixth Issuer
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 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, fraud 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 Sixth Issuer 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 TRANSACTION ACCOUNT
(a) The Sixth Issuer Cash Manager hereby confirms that the Sixth 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 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 Account 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 Account 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 Account:
(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 Sixth
Issuer Swap Agreements (excluding the return or transfer of any
Excess Swap Collateral as set out in the relevant Sixth Issuer
Swap Agreement and in respect of each Sixth Issuer Swap Provider,
prior to the designation of an early termination date under the
relevant Sixth 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 Sixth Issuer Swap Provider to
the Sixth Issuer pursuant to the relevant Sixth Issuer Swap
Agreement (and any interest or distributions in respect
thereof)); and
(iv) any other amounts whatsoever received by or on behalf of the
Sixth Issuer after the Sixth Issuer Closing Date,
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and the Sixth Issuer Cash Manager shall procure that all interest
earned on the Sixth 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 Sixth Issuer Transaction Account are credited to such
account.
(c) Each of the payments into the Sixth Issuer Transaction Account 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 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 Sixth Issuer Cash Manager shall promptly notify each of the Sixth
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 Sixth Issuer Transaction Account 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 Account 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
the prior written consent of the 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 Security Trustee, in accordance with the terms of the
Sixth Issuer Bank Account Agreement.
4.2 ADDITIONAL SIXTH ISSUER ACCOUNTS
(a) If established, the Sixth Issuer Cash Manager will not knowingly create
or permit to subsist any Security Interest in relation to any
Additional Sixth Issuer Account 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 relevant amounts
are paid into the applicable Sixth Issuer Account and the Sixth Issuer
Cash Manager shall procure that all interest earned on the relevant
Additional Sixth Issuer 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 Sixth Issuer Account are credited to such account.
(c) Each of the payments into the Additional Sixth Issuer Account referred
to in CLAUSE 4.2(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 an Additional Sixth Issuer 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 Sixth Issuer Cash Manager shall promptly notify each of the Sixth
Issuer and the Security Trustee in writing of any additional account
which is established pursuant to CLAUSE 3.1 of the Sixth Issuer Bank
Account Agreement or any account established to replace or supplement
such account.
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(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 Additional Sixth
Issuer 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 the
prior written consent of the 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 Security Trustee, in accordance with the terms of the
Sixth Issuer Bank Account Agreement.
4.3 WITHDRAWALS
(a) The Sixth Issuer Cash Manager may make withdrawals on behalf of the
Sixth Issuer from a Sixth Issuer Account, until such time as the Sixth
Issuer Cash Manager receives a copy of a Sixth Issuer Note Acceleration
Notice served by the 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 a Sixth Issuer Account.
(b) Upon receipt of such a Sixth Issuer Note Acceleration Notice, no amount
shall be withdrawn from the Sixth Issuer Accounts by the Sixth Issuer
Cash Manager without the prior written consent of the Security Trustee.
4.4 CASH MANAGEMENT
In administering the Sixth Issuer Accounts on behalf of the Sixth
Issuer and the 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 Acceleration
Notice served on the Sixth Issuer. Following service of a Sixth Issuer
Note Acceleration Notice, the Security Trustee or any Receiver
appointed by the Security Trustee will administer the Sixth Issuer
Accounts in accordance with the terms of the Sixth Issuer Deed of
Charge.
5. PAYMENTS UNDER SIXTH ISSUER SWAP AGREEMENTS, PAYMENTS TO THE PRINCIPAL
PAYING AGENTS AND TERMINATION OF SIXTH ISSUER SWAP AGREEMENTS
5.1 On each Funding 1 Interest Payment Date, the Sixth Issuer or the Sixth
Issuer Cash Manager on its behalf will procure that amounts received
from Funding 1 under the Sixth Issuer Intercompany Loan Agreement are
paid into the Sixth Issuer Transaction Account.
5.2 The Sixth Issuer, or the Sixth 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 Sixth Issuer Pre-Enforcement Priority of Payments or,
as the case may be, the Sixth Issuer Post-Enforcement Priority of
Payments, amounts received in respect of:
(i) the Sixth Issuer Series 1 Term Advances are paid to the
relevant Series 1 Sixth Issuer Swap Provider or if such
Sixth Issuer Swap Agreement has been terminated and the
Sixth Issuer is unable to enter into a replacement hedge as
set out in CLAUSE 5.4, into the relevant Additional Sixth
Issuer Account;
(ii) the Sixth Issuer Series 2 Term Advances are paid to the
relevant Series 2 Sixth Issuer Swap Provider or if such
Sixth Issuer Swap Agreement has been
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terminated and the Sixth Issuer is unable to enter into a
replacement hedge as set out in CLAUSE 5.4, into the
relevant Additional Sixth Issuer Account;
(iii) the Sixth Issuer Series 4 Term Advances are paid to the
relevant Series 4 Sixth Issuer Swap Provider or if such
Sixth Issuer Swap Agreement has been terminated and the
Sixth Issuer is unable to enter into a replacement hedge as
set out in CLAUSE 5.4, into the relevant Additional Sixth
Issuer Account;
(b) on each relevant Interest Payment Date:
(i) amounts received from each Sixth Issuer Swap Provider under
the relevant Sixth 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 Sixth Issuer
Paying Agent and Agent Bank Agreement) to the holders of
the corresponding classes of Sixth Issuer Notes; and/or
(ii) amounts standing to the credit of the relevant Additional
Sixth 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 Sixth Issuer Paying Agent and Agent Bank
Agreement) to the holders of the corresponding classes of
Sixth Issuer Notes.
5.3 The Sixth Issuer, or the Sixth 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
Sixth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Sixth Issuer Post-Enforcement Priority of Payments), amounts
received from Funding 1 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, the Sixth Issuer Series 5A1 Term AAA
Advance, the Sixth Issuer Series 5A2 Term AAA Advance, the Sixth Issuer
Series 5 Term AA Advance and the Sixth Issuer Series 5 Term BBB Advance
are paid to the Principal Paying Agent, which amounts shall be paid by
the Paying Agents (subject to the terms of the Sixth Issuer Paying
Agent and Agent Bank Agreement) to the holders of the corresponding
class of the Series 3 Sixth Issuer Notes and the Series 5 Sixth Issuer
Notes.
5.4 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
Acceleration Notice, any of the Sixth Issuer Swaps are terminated, the
Sixth Issuer Cash Manager (on behalf of the Sixth Issuer and the
Security Trustee) shall purchase a replacement hedge (taking into
account any early termination payment received from the relevant Sixth
Issuer Swap Provider) in respect of the relevant class of Sixth 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 Sixth Issuer Notes); 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 and the Series 2 Sixth Issuer Notes);
or
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(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 Sixth Issuer Notes)
in each case, on terms acceptable to the Rating Agencies and the Sixth
Issuer and the Security Trustee and with a swap provider whom the
Rating Agencies have previously confirmed in writing to the Sixth
Issuer and the Security Trustee will not cause the then current ratings
of the Sixth Issuer Notes to be downgraded.
5.5 If the Sixth Issuer receives a Refund Payment (as such term is defined
in the definition of Sixth Issuer Revenue Receipts) then the Sixth
Issuer, or the Sixth Issuer Cash Manager on its behalf, will distribute
such Refund Payment as part of the Sixth Issuer Revenue Receipts in
accordance with the relevant priority of payments.
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
Security Trustee or the Sixth Issuer under any of the Transaction
Documents or otherwise and nothing in this Agreement shall constitute a
guarantee, or similar obligation, by the Sixth Issuer Cash Manager of
either Funding 1, the 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) of 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
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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.
(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 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 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 (subject to CLAUSE 6.3 of the Sixth Issuer
Bank Account Agreement) and that it furnishes a copy of such statements
to the Sixth Issuer and the Security Trustee, unless otherwise agreed.
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 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 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
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 Sixth Issuer. Each such quarterly report shall be delivered to
the Sixth 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 Sixth Issuer Cash Manager shall provide, or procure the provision
of, to the Sixth Issuer, the Security Trustee and the Rating Agencies
copies of any annual returns or financial
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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 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;
(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.
(d) The Sixth 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, 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 the
Sixth Issuer Cash Management Services a cash management fee (which
shall be inclusive of VAT) which shall be agreed in writing between the
Sixth Issuer, the 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 Quarterly 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 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;
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(b) it will comply with any proper directions, orders and
instructions which the Sixth 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 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;
(d) save as otherwise agreed with the Sixth Issuer and the 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 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
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 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 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
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Cash Manager of written notice from the Sixth Issuer or the
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 Security Trustee is materially prejudicial to the
interests of the Sixth Issuer Secured Creditors and such default
continues unremedied for a period of twenty 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 Security Trustee requiring the same to be
remedied; or
(c) while the Sixth Issuer Cash Manager is the Seller, an Insolvency
Event occurs,
then the 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' written
notice of termination given by the Sixth Issuer Cash Manager to the
Sixth Issuer and the Security Trustee PROVIDED THAT:
(a) the Sixth 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 Sixth 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 Sixth
Issuer and the 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 Security
Trustee on terms satisfactory to the Security Trustee; and
(e) the then current ratings (if any) of the Sixth 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 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 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:
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(i) forthwith deliver (and in the meantime hold on trust for, and to
the order of, the Sixth Issuer or the Security Trustee, as the
case may be) to the Sixth 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 Sixth Issuer or the 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 Security Trustee and any other assets of the Sixth
Issuer and the Security Trustee;
(ii) take such further action as the Sixth Issuer or the Security
Trustee, as the case may be, may reasonably direct at the expense
of the Sixth Issuer or the Security Trustee, as the case may be
(including in relation to the appointment of a substitute cash
manager) provided that the 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 Sixth 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 Sixth Issuer or the
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
Security Trustee as soon as reasonably practicable but in any event
within three London 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 the appointment of the Sixth Issuer Cash Manager under
this Agreement shall be without prejudice to the liabilities of the
Sixth Issuer and the 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 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 moneys 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
moneys so receivable by the Sixth Issuer Cash Manager in accordance
with the Sixth Issuer Pre-Enforcement Revenue 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. Such
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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 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.
13.2 POWERS OF ATTORNEY
Without prejudice to the generality of CLAUSE 13.1, the Sixth Issuer
and the 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 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 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 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 Sixth
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 Sixth Issuer or the Sixth Issuer Cash Manager under
this Agreement 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 any Sixth 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 Sixth Issuer Account.
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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 such proceedings with regard thereto or file
documents with the court for the appointment of an administrator in
relation to the Sixth Issuer or serve a notice of intention to appoint
an administrator in relation to the Sixth Issuer.
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 Security Trustee shall not be liable to
pay any amounts due under CLAUSES 7 and 9, and without prejudice to the
obligations of the Sixth Issuer, nor shall it be liable to pay any
amounts due to 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 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 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, 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
16
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 Sixth 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:
(a) in the case of the Sixth 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 Sixth Issuer: to Permanent Financing (No.
6) PLC at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, 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.
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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 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 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.
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 Sixth Issuer Cash Manager shall:
(a) operate the Sixth Issuer 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 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,
those relating to 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 of the Sixth
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 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 moneys
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) on behalf of the Sixth Issuer, PROVIDED THAT monies are at the relevant
time available to the Sixth Issuer, pay all 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;
(iii) all legal and audit fees and other professional advisory fees;
and
19
(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 a Sixth Issuer Account 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 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 Security Trustee by the Sixth 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 Sixth Issuer Account.
The Security Trustee and the Sixth Issuer Cash Manager shall not be
responsible (save where any loss results from the Security Trustee's or
the Sixth 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 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.
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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; and
(ii) 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 shall determine and notify the Sixth
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 Sixth Issuer Cash Manager may make all the determinations
determinations referred to in paragraph 1(a) and paragraph 1(b)
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).
(ii) The Sixth Issuer Cash Manager shall on request notify the Sixth
Issuer and the Security Trustee in writing of any such other
assumptions and shall take account of any representations made by
the Sixth 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 Sixth Issuer Cash Manager will cause each determination of Sixth
Issuer Available Funds 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.
(c) The Sixth Issuer Cash Manager will promptly notify the Sixth Issuer and
each Calculation Agent (as defined in each of the Funding 1 Swap
Agreement and each relevant Sixth Issuer Swap Agreement) of the
relevant Note Principal Payment determined in accordance with paragraph
1(a)(ii) above.
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
21
(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 Bank under the Sixth Issuer Bank Account Agreement
pursuant to paragraph (d) below,
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 and to the extent that such withdrawal does not cause
the Sixth Issuer Transaction Account to become overdrawn) (the SIXTH
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 Sixth 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 Sixth 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 Sixth Issuer Paying Agent and Agent Bank
Agreement;
(b) secondly, to pay amounts due to any third party creditors of the Sixth
Issuer (other than those referred to later in this order of priority of
payments), which amounts have been incurred without breach by the Sixth
Issuer of the Sixth 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 Sixth Issuer and to pay or discharge any
liability of the Sixth Issuer for corporation tax on any chargeable
income or gain of the Sixth Issuer;
(c) thirdly, pari passu and pro rata, to pay amounts due to the Sixth
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 Sixth Issuer Cash Manager in the immediately succeeding Interest
Period, under this Agreement and to the Corporate Services Provider
under the Sixth Issuer Corporate Services Agreement and to the Sixth
Issuer Account Bank under the Sixth 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 Sixth Issuer Swap Provider in respect of the Series 1
Class A Sixth Issuer Swap (including any termination payment but
excluding any related Sixth Issuer Swap Excluded Termination
Amount) and from amounts received from the Series 1 Class A Sixth
Issuer Swap Provider to pay on each Interest Payment Date
interest due and payable on the Series 1 Class A Sixth Issuer
Notes;
(ii) amounts due to the Series 2 Class A Sixth Issuer Swap Provider in
respect of the Series 2 Class A Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 2 Class A Sixth Issuer Swap Provider to pay on each
Interest
22
Payment Date interest due and payable on the Series 2 Class A
Sixth Issuer Notes;
(iii) interest due and payable on the Series 3 Class A Sixth Issuer
Notes ;
(iv) amounts due to the Series 4 Class A Sixth Issuer Swap Provider in
respect of the Series 4 Class A Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 4 Class A Sixth 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 Sixth Issuer Notes; and
(v) interest due and payable on the Series 5 Class A Sixth Issuer
Notes;
(e) fifthly, pari passu and pro rata, to pay:
(i) amounts due to the Series 1 Class B Sixth Issuer Swap Provider in
respect of the Series 1 Class B Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 1 Class B Sixth 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 Sixth Issuer Notes;
(ii) amounts due to the Series 2 Class B Sixth Issuer Swap Provider in
respect of the Series 2 Class B Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 2 Class B Sixth 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 Sixth Issuer Notes;
(iii) interest due and payable on the Series 3 Class B Sixth Issuer
Notes ;
(iv) amounts due to the Series 4 Class B Sixth Issuer Swap Provider in
respect of the Series 4 Class B Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 4 Class B Sixth 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 Sixth Issuer Notes; and
(v) interest due and payable on the Series 5 Class B Sixth Issuer
Notes;
(f) sixthly, pari passu and pro rata, to pay:
(i) amounts due to the Series 1 Sixth Class C Issuer Swap Provider in
respect of the Series 1 Class C Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 1 Class C Sixth Issuer Swap
23
Provider in relation to such swap to pay on each Interest Payment
Date interest due and payable on the Series 1 Class C Sixth
Issuer Notes;
(ii) amounts due to the Series 2 Sixth Class C Issuer Swap Provider in
respect of the Series 2 Class C Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 2 Class C Sixth 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 Sixth Issuer Notes;
(iii) interest due and payable on the Series 3 Class C Sixth Issuer
Notes ;
(iv) amounts due to the Series 4 Sixth Class C Issuer Swap Provider in
respect of the Series 4 Class C Sixth Issuer Swap (including any
termination payment but excluding any related Sixth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 4 Class C Sixth 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 Sixth Issuer Notes; and
(v) interest due and payable on the Series 5 Class C Sixth Issuer
Notes;
(g) seventhly, pari passu and pro rata, to pay any termination payment due
(without double counting) to:
(i) the Series 1 Sixth Issuer Swap Provider following a Sixth Issuer
Swap Provider Default or a Sixth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 1 Sixth Issuer Swap
Provider;
(ii) the Series 2 Sixth Issuer Swap Provider following a Sixth Issuer
Swap Provider Default or a Sixth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 2 Sixth Issuer Swap
Provider; and
(iii) the Series 4 Sixth Issuer Swap Provider following a Sixth Issuer
Swap Provider Default or a Sixth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 4 Sixth Issuer Swap
Provider;
(h) eighthly, to 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
(i) ninthly, 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 as follows:
(a) the Series 1 Class A Sixth 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 Sixth
Issuer Series 1 Term AAA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
24
(b) the Series 2 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 2 Term AAA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(c) the Series 3 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 3 Term AAA Advance;
(d) the Series 4 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 4 Term AAA Advance, converted into Euro at the Euro
Currency Exchange Rate;
(e) the Series 5 Class A1 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 5A1 Term AAA Advance;
(f) the Series 5 Class A2 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 5A2 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 Exchange Rate;
(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 Exchange 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;
(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 Euro at the
relevant Euro Currency Exchange 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 Exchange 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 Exchange Rate;
25
(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; and
(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 Euro at the
relevant Euro Currency Exchange Rate;
(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.
26
SCHEDULE 3
FORM OF SIXTH ISSUER QUARTERLY REPORT
PERMANENT FINANCING (NO. 6) 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 (06/03/2002)
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
===========================
27
PERMANENT FINANCING (NO.6) PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 SERIES 5 CLASS
A CLASS A CLASS A A CLASS A1 A2
Xxxxx'x Current Rating [P-1] [Aaa] [Aaa] [Aaa] [Aaa] [Aaa]
Fitch Current Rating [F1+] [AAA] [AAA] [AAA] [AAA] [AAA]
S&P Current Rating [A-1+] [AAA] [AAA] [AAA] [AAA] [AAA]
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
B CLASS B CLASS B B B
Xxxxx'x Current Rating [Aa3] [Aa3] [Aa3] [Aa3] [Aa3]
Fitch Current Rating [AA] [AA] [AA] [AA] [AA]
S&P Current Rating [AA] [AA] [AA] [AA] [AA]
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
C CLASS C CLASS C C C
Xxxxx'x Current Rating [Baa2] [Baa2] [Baa2] [Baa2] [Baa2]
Fitch Current Rating [BBB] [BBB] [BBB] [BBB] [BBB]
S&P Current Rating [BBB] [BBB] [BBB] [BBB] [BBB]
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 SERIES 5 CLASS
A CLASS A CLASS A A CLASS A1 A2
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
B CLASS B CLASS B B B
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
C CLASS C CLASS C C C
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 SERIES 5 CLASS
A CLASS A CLASS A A CLASS A1 A2
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
B CLASS B CLASS B B B
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
C CLASS C CLASS C C C
Note Interest Margins
Step Up Dates
Step Up Margins
28
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 SERIES 5 CLASS
A CLASS A CLASS A A CLASS A1 A2
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
B CLASS B CLASS B B B
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
SERIES 1 CLASS SERIES 2 SERIES 3 SERIES 4 CLASS SERIES 5 CLASS
C CLASS C CLASS C C C
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
29
SIGNATORIES
SIXTH 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: .................................
SIXTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 6) 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 ) .................................
30
