EXHIBIT 10.2.1
SERIES 1 CLASS A
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of 8th December, 2005
between:
(1) DEUTSCHE BANK AG, LONDON BRANCH (PARTY A);
(2) XXXXXX FINANCING (NO. 9) PLC (PARTY B); and
(3) THE BANK OF NEW YORK, LONDON BRANCH (the ISSUER SECURITY TRUSTEE, which
expression shall include its successors and assigns and which has
agreed to become a party to this Agreement solely for the purpose of
taking the benefit of Parts 5(b) and (l) of the Schedule to this
Agreement).
PART 1. TERMINATION PROVISIONS
(a) SPECIFIED ENTITY means in relation to Party A for the purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
and in relation to Party B for the purpose of:
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
(b) SPECIFIED TRANSACTION will have the meaning specified in Section 14.
(c) The CROSS DEFAULT provisions of Section 5(a)(vi) will not apply to
Party A and will not apply to Party B.
(d) The CREDIT EVENT UPON MERGER provisions of Section 5(b)(iv) will not
apply to Party A and will not apply to Party B.
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(e) The AUTOMATIC EARLY TERMINATION provision of Section 6(a) will not
apply to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purposes of Section 6(e) of this
Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(G) TERMINATION CURRENCY means Sterling.
(H) ADDITIONAL TERMINATION EVENT will apply. In addition to the Additional
Termination Events set forth in Part 5(g)(vii) of this Schedule, the
following will each constitute an Additional Termination Event:
(i) the Additional Tax Representation (as defined in Part 5(f) of
this Schedule) proves to have been incorrect or misleading in
any material respect when made or repeated or deemed to have
been made or repeated. For the purpose of the foregoing
Termination Event, Party A shall be the sole Affected Party
and all Transactions shall be Affected Transactions.
(ii) Party B exercises its option to redeem the Series 1 Class A
Ninth Issuer Notes in whole in accordance with the provisions
of Condition 5 (D) or (E) of the Terms and Conditions. For the
purposes of the foregoing Termination Event, Party B shall be
the sole Affected Party and all Transactions shall be Affected
Transactions.
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PART 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will each make the following
representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (i)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii)
the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, provided that it shall not be a breach
of this representation where reliance is placed on clause (ii) and the
other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purposes of Section 3(f) of the
Agreement, Party A and Party B make no representations.
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PART 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are: None
(b) Other documents to be delivered are:
PARTY REQUIRED COVERED BY
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
Party A and Appropriate evidence of On signing of this Yes
Party B its signatory's Agreement
authority
Party B Certified copy of board On signing of this Yes
resolution and Agreement
constitutional documents
Party A Legal opinion in form and On the date of this No
substance satisfactory Agreement
to Party B
Party B Legal opinion from Xxxxx On signing of this No
& Overy Agreement
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PART 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
Addresses for notices or communications to Party A:
All notices to Party A under Sections 5 or 6 of the Agreement (other
than notices under Section 5(a)(i)) shall be sent to:
Deutsche Bank AG, Head Office
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
XXXXXXX
Attention: Legal Department
Telex No: 411836 or 416731 or 41233
Answerback: DBF-D
All notices to Party A (other than those provided for in paragraph (a)
above) shall be sent directly to the address and contact particulars
specified in a relevant Confirmation. If no such particulars are so
specified, such notices shall be sent to:
Deutsche Bank AG, London Branch
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXX XXXXXXX
Attn: OTC Derivatives
Tel: (44)(00) 0000 0000
Fax: (44)(00) 0000 0000
Telex: 94015555
Answerback: DBLN G
Address for notices or communications to Party B:
Address: c/o Abbey National plc
Abbey Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Regent's Place
London NW1 3AN
Attention: Company Secretary
Facsimile No.: x00 (0) 00 0000 0000
Copy: c/o Abbey National plc
Abbey House (AAM126)
000 Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx XX0 0XX
Attention: Securitisation Team, Retail Credit Risk
Facsimile No.: x00 (0) 00 0000 0000
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With a copy to the Issuer Security Trustee:
Address: One Canada Square
London E14 5AL
Attention: Global Structured Finance - Corporate Trustee
Facsimile No.: x00 000 000 0000/6399
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
In respect of Party A, none.
In respect of Party B, none.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A, none.
Credit Support Provider means in relation to Party B, none.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of England and Wales.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to Transactions entered into under this Agreement.
(j) AFFILIATE will have the meaning specified in Section 14 of this
Agreement.
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PART 5. OTHER PROVISIONS
(a) NO SET-OFF
(i) All payments under this Agreement shall be made without
set-off or counterclaim, except as expressly provided for in
Section 6.
(ii) Section 6(e) shall be amended by the deletion of the following
sentence:
"The amount, if any, payable in respect of an Early
Termination Date and determined pursuant to this Section will
be subject to any Set-off."
(b) SECURITY INTEREST
Notwithstanding Section 7, Party A hereby agrees and consents to the
assignment by way of security by Party B of its interests under this
Agreement (without prejudice to, and after giving effect to, any
contractual netting provision contained in this Agreement) to the
Issuer Security Trustee (or any successor thereto) pursuant to and in
accordance with the Ninth Issuer Deed of Charge and acknowledges notice
of such assignment. Each of the parties hereby confirms and agrees that
the Issuer Security Trustee shall not be liable for any of the
obligations of Party B hereunder.
(c) DISAPPLICATION OF CERTAIN EVENTS OF DEFAULT
Sections 5(a)(ii), 5(a)(iii), 5(a)(iv), 5(a)(v), 5(a)(vii)(2), (5),
(6), (7) and (9), and 5(a)(viii) will not apply in respect of Party B.
Section 5(a)(vii)(8) will not apply to Party B to the extent that it
relates to Section 5(a)(vii)(2), (5), (6), (7) and (9).
(d) DISAPPLICATION OF CERTAIN TERMINATION EVENTS
Sections 5(b)(ii) and 5(b)(iii) will not apply to Party A or to Party
B.
(e) ADDITIONAL EVENT OF DEFAULT
The following shall constitute an additional Event of Default with
respect to Party B:
"The Note Trustee serves a Ninth Issuer Note Enforcement Notice on
Party B pursuant to Condition 9 of the Terms and Conditions (in which
case Party B shall be the Defaulting Party)."
(f) ADDITIONAL TAX REPRESENTATION
(i) Party A makes the following representation (the ADDITIONAL TAX
REPRESENTATION), which representation shall be deemed to be
repeated at all times until the end of each transaction:
(A) it is a party to each Transaction solely for the
purposes of a trade (or part of a trade) carried on
by it in the United Kingdom through a permanent
establishment; or
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(B) it is resident in the United Kingdom or in a
jurisdiction with which the United Kingdom has a
double tax treaty which makes provision, whether for
relief or otherwise, in relation to interest.
(ii) Section 5(a)(iv) is amended with respect to Party A by the
insertion of the following after the words "Section 3(e) or
(f)":
"or Part 5(f) of the Schedule".
(g) RATING EVENTS
(i) In the event that the short-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) or any Credit
Support Provider from time to time in respect of Party A cease
to be rated at least as high as "A-1+" by Standard & Poor's
Rating Services, a division of The XxXxxx-Xxxx Companies, Inc.
(S&P) and, as a result of such cessation, the then current
rating of the Series 1 Class A Ninth Issuer Notes is
downgraded by S&P or placed under review for possible
downgrade by S&P (an INITIAL S&P RATING EVENT), then Party A
will, within 30 days of the occurrence of such Initial S&P
Rating Event, at its own cost either:
(A) put in place an appropriate xxxx-to-market collateral
arrangement (which may be based on the credit support
documentation published by the International Swaps
and Derivatives Association, Inc. (ISDA), or
otherwise, and relates to collateral in the form of
cash or securities or both) in support of Party A's
obligations under this Agreement on terms
satisfactory to the Issuer Security Trustee (whose
consent shall be given if S&P confirms that the
provision of such collateral would maintain the
rating of the Series 1 Class A Ninth Issuer Notes by
S&P or restore the rating of the Series 1 Class A
Ninth Issuer Notes by S&P to the level it would have
been at immediately prior to such Initial S&P Rating
Event) provided that (1) Party A shall be deemed to
have satisfied the requirements of S&P if the amount
of collateral agreed to be provided in the form of
cash and/or securities (the COLLATERAL AMOUNT) is
determined on a basis which satisfies, but is no more
onerous than, the criteria set out in the most recent
article published by S&P on "Ratings Direct" which
enables entities rated lower than a specified level
to participate in structured finance transactions
which, through collateralisation are rated at a
higher level (the S&P CRITERIA) and (2) the
Collateral Amount shall not be required to exceed
such amount as would be required (in accordance with
the S&P Criteria) to maintain or restore the rating
of the Series 1 Class A Ninth Issuer Notes by S&P at
or to the level they would have been at immediately
prior to such Initial S&P Rating Event;
(B) transfer all of its rights and obligations under this
Agreement to a replacement third party whose
short-term, unsecured and unsubordinated debt
obligations are rated at least "A-1+" by S&P or such
other rating as is commensurate with the rating
assigned to the Series 1 Class A Ninth Issuer Notes
by S&P from time to time;
(C) procure another person to become co-obligor or
guarantor in respect of the obligations of Party A
under this Agreement, whose short-term,
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unsecured and unsubordinated debt obligations are
rated at least "A-1+" by S&P or such other rating as
is commensurate with the rating assigned to the
Series 1 Class A Ninth Issuer Notes by S&P from time
to time; or
(D) take such other action as Party A may agree with S&P
as will result in the rating of the Series 1 Class A
Ninth Issuer Notes by S&P following the taking of
such action being maintained at, or restored to, the
level it would have been at immediately prior to such
Initial S&P Rating Event.
If any of the measures described in Part 5(g)(i)(B), Part
5(g)(i)(C) or Part 5(g)(i)(D) above are satisfied at any time,
all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to Part 5(g)(i)(A) will be
transferred to Party A and Party A will not be required to
transfer any additional collateral in respect of such Initial
S&P Rating Event.
(ii) In the event that the rating of the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor)
or any Credit Support Provider from time to time in respect of
Party A cease to be rated at least as high as " A-3-" by S&P
and, as a result of such cessation the then current rating of
the Series 1 Class A Ninth Issuer Notes may in the reasonable
opinion of S&P be downgraded or placed under review for
possible downgrade by S&P (such event, a SUBSEQUENT S&P RATING
EVENT), then Party A will:
(A) at its own cost and expense, use its best endeavours
to take the action set out in Part 5(g)(i)(B), Part
5(g)(i)(C) or Part 5(g)(i)(D) above within 10 days of
the occurrence of such Subsequent S&P Rating Event;
and
(B) if, at the time such Subsequent S&P Rating Event
occurs, Party A has provided collateral pursuant to a
xxxx-to-market collateral arrangement put in place
pursuant to Part 5(g)(i)(A) above following an
Initial S&P Rating Event, continue to post collateral
notwithstanding the occurrence of such Subsequent S&P
Rating Event until such time as the action set out in
Part 5(g)(ii)(A) above has been taken.
If the action set out in Part 5(g)(ii)(A) above is taken at
any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to Part
5(g)(i)(A) or Part 5(g)(ii)(B) above will be transferred to
Party A and Party A will not be required to transfer any
additional collateral in respect of such Subsequent S&P Rating
Event.
(iii) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated at
least as high as "A1" (or its equivalent) by Xxxxx'x Investor
Services (MOODY'S); or the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor)
or any Credit Support Provider in respect of Party A cease to
be rated at least as high as "P-1" (or its equivalent) by
Moody's, (such cessation being an INITIAL XXXXX'X RATING
Event), then Party A will, within 30 days of the occurrence of
such Initial Xxxxx'x Rating Event, at its own cost either:
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(A) transfer all of its rights and obligations under this
Agreement to either (1) a replacement third party
with the Required Ratings (as defined below)
domiciled in the same legal jurisdiction as Party A
or Party B, provided that such transfer does not
result in any requirement for deduction or
withholding for or on account of any Tax, or (2) a
replacement third party as Party A may agree with
Moody's;
(B) procure another person to become co-obligor or
guarantor in respect of the obligations of Party A
under this Agreement, which co-obligor or guarantor
may be either (1) a person with the Required Ratings
(as defined below) domiciled in the same legal
jurisdiction as Party A or Party B, provided that
such transfer does not result in any requirement for
deduction or withholding for or on account of any
Tax, or (2) such other person as Party A may agree
with Moody's;
(C) take such other action as Party A may agree with
Moody's to remedy such Initial Xxxxx'x Rating Event;
or
(D) enter into, and transfer collateral in accordance
with the provisions of theCredit Support Annex.
If any of the measures described in Part 5(g)(iii)(A), Part
5(g)(iii)(B) or Part 5(g)(iii)(C) above are satisfied at any
time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to Part
5(g)(iii)(D) above will be transferred to Party A and Party A
will not be required to transfer any additional collateral in
respect of such Initial Xxxxx'x Rating Event.
(iv) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated as
high as "A3" (or its equivalent) by Moody's; or the
short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider in
respect of Party A cease to be rated as high as "P-2" (or its
equivalent) by Moody's, (such cessation being a SUBSEQUENT
XXXXX'X RATING EVENT), then Party A will:
(A) on a reasonable efforts basis, within 30 days of the
occurrence of such Subsequent Xxxxx'x Rating Event,
and at its own cost, attempt either to:
(1) transfer all of its rights and obligations
with respect to this Agreement to either (I)
a replacement third party with the Required
Ratings (as defined below) domiciled in the
same legal jurisdiction as Party A or Party
B, provided that such transfer does not
result in any requirement for deduction or
withholding for or on account of any Tax, or
(II) a replacement third party as Party A
may agree with Moody's; or
(2) procure another person to become co-obligor
or guarantor in respect of the obligations
of Party A under this Agreement, which
co-obligor or guarantor may be either (I) a
person with the Required Ratings (as defined
below) domiciled in the same legal
jurisdiction as Party A or Party B, provided
that such transfer does not result in any
requirement for deduction or
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withholding for or on account of any Tax, or
(II) such other person as Party A may agree
with Moody's; or
(3) take such other action Party A may agree
with Moody's to remedy such Subsequent
Xxxxx'x Rating Event; and
(B) within the later of 10 days of the occurrence of such
Subsequent Xxxxx'x Rating Event and 30 days of the
occurrence of an Initial Xxxxx'x Rating Event,
transfer collateral, or, if at the time such
Subsequent Xxxxx'x Rating Event occurs Party A has
provided collateral pursuant to Part 5(g)(iii)(D)
above, continue to transfer collateral, in each case
in accordance with the provisions of the Credit
Support Annex, provided that Party A shall continue,
on a best efforts basis, to make all reasonable
attempts to take the actions specified in Part
5(g)(iv)(A) above.
If any of the measures described in Part 5(g)(iv)(A)(1), Part
5(g)(iv)(A)(2) or Part 5(g)(iv)(A)(3) above are satisfied at
any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to Part
5(g)(iii)(D) or Part 5(g)(iv)(B) above will be transferred to
Party A and Party A will not be required to transfer any
additional collateral in respect of such Subsequent Xxxxx'x
Rating Event.
For the purposes of Part 5(g)(iii) and Part 5(g)(iv), REQUIRED
RATINGS means, in respect of the relevant entity, its
short-term, unsecured and unsubordinated debt obligations are
rated at least as high as "P-1" by Moody's and its long-term,
unsecured and unsubordinated debt obligations are rated at
least as high as "A1" by Moody's, or such other ratings as may
be agreed with Moody's from time to time.
(v) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated at
least as high as "A+" (or its equivalent) by Fitch Ratings Ltd
(FITCH) or the short-term, unsecured and unsubordinated debt
obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated at
least as high as "F1" (or its equivalent) by Fitch and, as a
result of such cessation, the then current rating of the
Series 1 Class A Ninth Issuer Notes is downgraded by Fitch or
placed under credit watch for possible downgrade by Fitch (an
INITIAL FITCH RATING EVENT) then Party A will, on a reasonable
efforts basis within 30 days of the occurrence of such Initial
Fitch Rating Event, at its own cost, either:
(A) enter into, and transfer collateral in accordance
with the provisions of the Credit Support Annex;
(B) transfer all of its rights and obligations under this
Agreement to a replacement third party whose
long-term, unsecured and unsubordinated debt
obligations are rated at least as high as "A+" by
Fitch and whose short-term, unsecured and
unsubordinated debt obligations are rated at least
"F1" by Fitch or, in either case, such lower rating
as is commensurate with the rating assigned to the
Series 1 Class A Ninth Issuer Notes by Fitch from
time to time;
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(C) procure another person to become co-obligor or
guarantor in respect of the obligations of Party A
under this Agreement, whose long-term, unsecured and
unsubordinated debt obligations are rated at least as
high as "A+" by Fitch and whose short-term, unsecured
and unsubordinated debt obligations are rated at
least "F1" by Fitch or, in either case, such lower
rating as is commensurate with the rating assigned to
the Series 1 Class A Ninth Issuer Notes by Fitch from
time to time; or
(D) take such other action as Party A may agree with
Fitch as will result in the rating of the Series 1
Class A Ninth Issuer Notes by Fitch following the
taking of such action being maintained at, or
restored to, the level at which it was immediately
prior to such Initial Fitch Rating Event.
If any of the measures described in Part 5(g)(v)(B), Part
5(g)(v)(C) or Part 5(g)(v)(D) above are satisfied at any time,
all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to Part 5(g)(v)(A) above will
be transferred to Party A and Party A will not be required to
transfer any additional collateral in respect of such Initial
Fitch Rating Event.
(vi) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated at
least as high as "BBB+" (or its equivalent) by Fitch or the
short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider in
respect of Party A cease to be rated at least as high as "F2"
(or its equivalent) by Fitch and, as a result of such
cessation, the then current rating of the Series 1 Class A
Ninth Issuer Notes is downgraded or placed on credit watch for
possible downgrade by Fitch (a FIRST SUBSEQUENT FITCH RATING
EVENT), then Party A will, on a reasonable efforts basis,
either:
(A) within 30 days of the occurrence of such First
Subsequent Fitch Rating Event and at its own cost,
transfer collateral in accordance with the provisions
of the Credit Support Annex (provided that the
xxxx-to-market calculations and the correct and
timely posting of collateral thereunder are verified
by an independent third party (with the costs of such
independent verification being borne by Party A)); or
(B) within 30 days of the occurrence of such First
Subsequent Fitch Rating Event, at its own cost,
attempt either to:
(1) transfer all of its rights and obligations
under to this Agreement to a replacement
third party whose long-term, unsecured and
unsubordinated debt obligations are rated at
least "A+" by Fitch and whose short-term,
unsecured and unsubordinated debt obligations
are rated at least "F1" by Fitch or, in
either case, such lower rating as is
commensurate with the rating assigned to the
Series 1 Class A Ninth Issuer Notes by Fitch
from time to time;
(2) procure another person to become co-obligor
or guarantor in respect of the obligations
of Party A under this Agreement, whose
long-term, unsecured and unsubordinated debt
obligations are rated at least "A+" by Fitch
and whose short-
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term, unsecured and unsubordinated debt
obligations are rated at least "F1" by Fitch
or, in either case, such lower rating as is
commensurate with the rating assigned to the
Series 1 Class A Ninth Issuer Notes by Fitch
from time to time; or
(3) take such other action as Party A may agree
with Fitch as will result in the rating of
the Series 1 Class A Ninth Issuer Notes
following the taking of such action being
maintained at, or restored to, the level it
was at immediately prior to such First
Subsequent Fitch Rating Event.
If any of the measures described in Part 5(g)(vi)(B)(1), Part
5(g)(vi)(B)(2) or Part 5(g)(vi)(B)(3) above are satisfied at
any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to the Credit
Support Annex in accordance with Part 5(g)(v)(A) above or Part
5(g)(vi)(A) will be transferred to Party A and Party A will
not be required to transfer any additional collateral in
respect of that First Subsequent Fitch Rating Event.
(vii) In the event that the long-term, unsecured and unsubordinated
debt obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated at
least as high as "BBB-" (or its equivalent) by Fitch or the
rating of the short-term, unsecured and unsubordinated debt
obligations of Party A (or its successor) or any Credit
Support Provider in respect of Party A cease to be rated at
least as high as "F-3" (or its equivalent) by Fitch and as a
result of such cessation, the then current rating of the
Series 1 Class A Ninth Issuer Notes is downgraded or placed on
credit watch for possible downgrade by Fitch (a SECOND
SUBSEQUENT FITCH RATING EVENT), then Party A will on a
reasonable efforts basis within 30 days of the occurrence of
such Second Subsequent Fitch Rating Event, at is own cost,
attempt either to:
(A) transfer all of its rights and obligations under this
Agreement to a replacement third party whose
long-term, unsecured and unsubordinated debt
obligations are rated at least "A+" by Fitch and
whose short-term, unsecured and unsubordinated debt
obligations are rated at least "F1" by Fitch or, in
either case, such lower rating as is commensurate
with the rating assigned to the Series 1 Class A
Ninth Issuer Notes by Fitch from time to time;
(B) procure another person to become a co-obligor or
guarantor in respect of the obligations of Party A
with respect to this Agreement whose long-term,
unsecured and unsubordinated debt obligations are
rated at least "A+" by Fitch and whose short-term,
unsecured and unsubordinated debt obligations are
rated at least "F1" by Fitch or, in either case, such
lower rating as is commensurate with the rating
assigned to the Series 1 Class A Ninth Issuer Notes
by Fitch from time to time; or
(C) take such other action as Party A may agree with
Fitch as will result in the rating of the Series 1
Class A Ninth Issuer Notes following the taking of
such action being maintained at, or restored to, the
level it was at immediately prior to such Second
Subsequent Fitch Rating Event.
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Pending compliance with any of the measures described
in Part 5(g)(vii)(A), Part 5(g)(vii)(B) or Part
5(g)(vii)(C) above, Party A will within 10 days of
the occurrence of the Second Subsequent Fitch Rating
Event and at its own cost, transfer collateral in
accordance with the provisions of the Credit Support
Annex (provided that the xxxx-to-market calculations
and the correct and timely posting of collateral
thereunder are verified by an independent third party
(with the costs of such independent verification
being borne by Party A)). If any of the measures
described in Part 5(g)(vii)(A), Part 5(g)(vii)(B) or
Part 5(g)(vii)(C) above are satisfied at any time,
all collateral (or the equivalent thereof, as
appropriate) transferred by Party A under the Credit
Support Annex will be transferred to Party A and
Party A will not be required to transfer any
additional collateral in respect of that Second
Subsequent Fitch Rating Event.
(viii) (A) If Party A does not take any of the measures
described in Part 5(g)(i) above, such failure shall
not be or give rise to an Event of Default but shall
constitute an Additional Termination Event with
respect to Party A which shall be deemed to have
occurred on the thirtieth day following the
Initial S&P Rating Event with Party A as the sole
Affected Party and all Transactions as Affected
Transactions.
(B) If, at the time a Subsequent S&P Rating Event occurs,
Party A has provided collateral pursuant to Part
5(g)(i)(A) above and fails to continue to post
collateral in accordance with Part 5(g)(ii)(B) above
then, pending compliance with Part 5(g)(ii)(A) above,
such failure will not be or give rise to an Event of
Default but will constitute an Additional Termination
Event with respect to Party A and will be deemed to
have occurred on the later of the tenth day following
such Subsequent S&P Rating Event and the thirtieth
day following the Initial S&P Rating Event with Party
A as the sole Affected Party and all Transactions as
Affected Transactions. Further, an Additional
Termination Event with respect to Party A shall be
deemed to have occurred if, even if Party A continues
to post collateral as required by Part 5(g)(ii)(B)
above, and notwithstanding Section 5(a)(ii), Party A
does not take the measure described in Part
5(g)(ii)(A) above. Such Additional Termination Event
will be deemed to have occurred on the thirtieth day
following the Subsequent S&P Rating Event with Party
A as the sole Affected Party and all Transactions as
Affected Transactions.
(C) If Party A does not take any of the measures
described in Part 5(g)(iii) above, such failure shall
not be or give rise to an Event of Default but shall
constitute an Additional Termination Event with
respect to Party A which shall be deemed to have
occurred on the thirtieth day following the
occurrence of such Initial Xxxxx'x Rating Event with
Party A as the sole Affected Party and all
Transactions as Affected Transactions.
(D) If Party A does not take the measures described in
Part 5(g)(iv)(B) above, such failure shall give rise
to an Event of Default with respect to Party A which
shall be deemed to have occurred on the thirtieth day
following
14
such Subsequent Xxxxx'x Rating Event (or, if Party A
has provided collateral pursuant to Part 5(g)(iii)(D)
above, such Event of Default shall be deemed to have
occurred on the tenth day following such Subsequent
Xxxxx'x Rating Event) with Party A as the Defaulting
Party. Further, it shall constitute an Additional
Termination Event with respect to Party A if, even
after satisfying the requirement to post collateral
as required by Part 5(g)(iv)(B) above, and
notwithstanding Section 5(a)(ii), Party A does not,
irrespective of whether or not Party A has applied
reasonable efforts, take any of the measures
described in Part 5(g)(iv)(A) above. Such Additional
Termination Event will be deemed to have occurred on
the thirtieth day following the Subsequent Xxxxx'x
Rating Event with Party A as the sole Affected Party
and all Transactions as Affected Transactions.
(E) If Party A does not take any of the measures
described in Part 5(g)(v) above, such failure shall
not be or give rise to an Event of Default but shall
constitute an Additional Termination Event with
respect to Party A which shall be deemed to have
occurred on the thirtieth day following the Initial
Fitch Rating Event with Party A as the sole Affected
Party and all Transactions as Affected Transactions.
(F) If Party A does not take any of the measures
described in Part 5(g)(vi) above, such failure shall
not be or give rise to an Event of Default but shall
constitute an Additional Termination Event with
respect to Party A which shall be deemed to have
occurred on the thirtieth day following the First
Subsequent Fitch Rating Event with Party A as the
sole Affected Party and all Transactions as Affected
Transactions.
(G) If Party A does not, pending compliance with any of
the measures described in Part 5(g)(vii)(A), Part
5(g)(vii)(B) or Part 5(g)(vii)(C), continue to comply
with the terms of the Credit Support Annex such
failure will not give rise to an Event of Default but
shall constitute an Additional Termination Event with
respect to Party A which will be deemed to have
occurred on the tenth day following such Second
Subsequent Fitch Rating Event with Party A as the
sole Affected Party and all Transactions as Affected
Transactions. Further, it will constitute an
Additional Termination Event with respect to Party A
if, even after satisfying the above requirements,
Party A has failed, within 10 days after receiving
notice of failure to use reasonable efforts (which
notice will not be given until at least 30 days
following such Second Subsequent Fitch Rating Event),
to either transfer as described in Part 5(g)(vii)(A),
find a co-obligor or guarantor as described in Part
5(g)(vii)(B) or take such other action as described
in Part 5(g)(vii)(C). Such Additional Termination
Event will be deemed to have occurred on the tenth
day after receiving notice of failure to use
reasonable efforts (unless, on or prior to such day,
Party A has effected a transfer as described in Part
5(g)(vii)(A), found a co-obligor or guarantor as
described in Part 5(g)(vii)(B) or taken such other
action as described in Part 5(g)(vii) (C)) with Party
A as the sole Affected Party and all Transactions as
Affected Transactions.
(H) In the event that Party B were to designate an Early
Termination Date and there would be a payment due to
Party A under Section 6, Party B may only designate
such Early Termination Date in respect of an
Additional Termination Event under this Part
5(g)(viii) if Party B has found a replacement
counterparty willing to enter into a new
15
transaction on terms that reflect as closely as
reasonably possible, as determined by Party B in its
sole and absolute discretion, the economic, legal and
credit terms of the Terminated Transactions, and
Party B has obtained the Issuer Security Trustee's
prior written consent thereto.
Each of Party B and the Issuer Security Trustee shall use
their reasonable endeavours to co-operate with Party A in
entering into such documents as may be reasonably requested by
Party A in connection with any of the measures which Party A
may take under this Part 5(g) following the rating events
described herein.
(ix) For the purposes of this Part 5(g), CREDIT SUPPORT ANNEX means
the 1995 Credit Support Annex (Bilateral Form - Transfer)
(English Law) published by the International Swaps and
Derivatives Association, Inc. to be entered into between Party
A, Party B and the Issuer Security Trustee, in the form
attached hereto as Appendix A, or any other xxxx-to-market
collateral arrangement satisfactory to Xxxxx'x and Fitch.
(h) ADDITIONAL REPRESENTATIONS
Section 3 is amended by the addition at the end thereof of the
following additional representation:
"(g) NO AGENCY. It is entering into this Agreement and each
Transaction as principal and not as agent of any person."
(i) RECORDING OF CONVERSATIONS
Each party consents to the recording of the telephone conversations of
its personnel or any personnel employed by any Affiliate or any third
party acting on its behalf in connection with this Agreement or any
potential Transaction and (i) agrees to obtain any necessary consent of
and give notice of such recording to such personnel and (ii) agrees
that recordings may be submitted in evidence in any Proceedings
relating to this Agreement.
(j) RELATIONSHIP BETWEEN THE PARTIES
The Agreement is amended by the insertion of the following Section 15
after Section 14, reading in its entirety as follows:
"15. RELATIONSHIP BETWEEN THE PARTIES
Each party will be deemed to represent to the other party on the date
on which it enters into a Transaction that (absent a written agreement
between the parties that expressly imposes affirmative obligations to
the contrary for that Transaction):
(a) NON-RELIANCE. It is acting for its own account, and it has
made its own decisions to enter into that Transaction and as
to whether that Transaction is appropriate or proper for it
based upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the
terms and conditions of a Transaction shall not be considered
investment
16
advice or a recommendation to enter into that Transaction. It
has not received from the other party any assurance or
guarantee as to the expected results of that Transaction.
(b) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (through independent professional
advice), and understands and accepts, the terms, conditions
and risks of that Transaction. It is also capable of assuming,
and assumes, the financial and other risks of that
Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a
fiduciary or an adviser for it in respect of that
Transaction."
(k) TAX
The Agreement is amended by deleting Section 2(d) in its entirety and
replacing it with the following:
"(d) Deduction or Withholding for Tax
(i) Requirement to Withhold
All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless
such deduction or withholding is required (including, for the
avoidance of doubt, if such deduction or withholding is
required in order for the payer to obtain relief from Tax) by
any applicable law, as modified by the practice of any
relevant governmental revenue authority, then in effect. If a
party (X) is so required to deduct or withhold, then that
party (the DEDUCTING PARTY):
(1) will promptly notify the other party (Y) of such
requirement;
(2) will pay to the relevant authorities the full amount
required to be deducted or withheld (including the
full amount required to be deducted or withheld from
any Gross Up Amount (as defined below) paid by the
Deducting Party to Y under this Section 2(d))
promptly upon the earlier of determining that such
deduction or withholding is required or receiving
notice that such amount has been assessed against Y;
(3) will promptly forward to Y an official receipt (or a
certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such
authorities; and
(4) if X is Party A, will promptly pay in addition to the
payment to which Party B is otherwise entitled under
this Agreement, such additional amount (the GROSS UP
AMOUNT) as is necessary to ensure that the net amount
actually received by Party B will equal the full
amount which Party B would have received had no such
deduction or withholding been required.
17
(ii) Liability
If:
(1) X is required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, to make any deduction or withholding for
or on account of any Tax in respect of payments under
this Agreement;
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed
directly against X,
then, except to the extent that Y has satisfied or then
satisfies the liability resulting from such Tax, (A) where X
is Party B, Party A will promptly pay to Party B the amount of
such liability (the LIABILITY AMOUNT) (including any related
liability for interest and together with an amount equal to
the Tax payable by Party B on receipt of such amount, but only
including any related liability for penalties if Party A has
failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d)) and Party B will promptly
pay to the relevant government revenue authority the amount of
such liability (including any related liability for interest
and penalties) and (B) where X is Party A and Party A would
have been required to pay a Gross Up Amount to Party B, Party
A will promptly pay to the relevant government revenue
authority the amount of such liability (including any related
liability for interest and penalties).
(iii) Tax Credit etc.
Where Party A pays an amount in accordance with Section
2(d)(i)(4) above, Party B undertakes as follows:
(1) to the extent that Party B obtains any credit,
allowance, set-off or repayment from the tax
authorities of any jurisdiction relating to any
deduction or withholding in respect of Tax giving
rise to such payment (a TAX CREDIT), it shall pay to
Party A, as soon as practical after receipt of the
same, so much of the cash benefit (as calculated
below) relating thereto which it has received as will
leave Party B in substantially the same (but in any
event no worse) position as Party B would have been
in if no such deduction or withholding had been
required;
(2) the CASH BENEFIT, in the case of a credit, allowance
or set-off, shall be the additional amount of Tax
which would have been payable by Party B in the
relevant jurisdiction referred to in (1) above but
for the obtaining by Party B of the said Tax Credit
and, in the case of a repayment, shall be the
18
amount of the repayment together with any related
interest or similar payment obtained by Party B;
(3) to use all reasonable endeavours to obtain any Tax
Credit as soon as is reasonably practicable and, upon
request by Party A, to supply Party A with a
reasonably detailed explanation of Party B's
calculation of the amount of any such Tax Credit and
of the date on which the same is received; and
(4) to ensure that any Tax Credit obtained is paid
directly to Party A, and not applied in whole or part
to pay any other Issuer Secured Creditor or any other
party both prior to and subsequent to any enforcement
of the security constituted by the Ninth Issuer Deed
of Charge."
(l) SECURITY, ENFORCEMENT AND LIMITED RECOURSE
(i) Party A agrees with Party B and the Issuer Security Trustee to
be bound by the terms of the Ninth Issuer Deed of Charge and,
in particular, confirms that:
(A) no sum shall be payable by or on behalf of Party B to
it except in accordance with the provisions of the
Ninth Issuer Deed of Charge; and
(B) it will not take any steps for the winding up,
dissolution or reorganisation, or for the appointment
of a receiver, administrator, administrative receiver,
trustee, liquidator, sequestrator or similar officer
of Party B or of any or all of its revenues and assets
nor participate in any ex parte proceedings nor seek
to enforce any judgment against Party B, subject to
the provisions of the Ninth Issuer Deed of Charge.
(ii) In relation to all sums due and payable by Party B to Party A,
Party A agrees that it shall have recourse only to Ninth
Issuer Available Funds, but always subject to the order of
priority of payments set out in the Ninth Issuer Cash
Management Agreement and the Ninth Issuer Deed of Charge.
(m) CONDITION PRECEDENT
Section 2(a)(iii) shall be amended by the deletion of the words "a
Potential Event of Default" in respect of Party B only insofar as the
same relates to the potential service by the Issuer Security Trustee on
Party B of a Ninth Issuer Note Enforcement Notice pursuant to Condition
9 of the Terms and Conditions. For the avoidance of doubt, such
amendment shall not apply in any other circumstances in respect of
either party to this Agreement.
(n) REPRESENTATIONS
Section 3(b) shall be amended by the deletion of the words "or
Potential Event of Default" in respect of Party B only insofar as the
same relates to the potential service by the Issuer Security Trustee on
Party B of a Ninth Issuer Note Enforcement Notice pursuant to Condition
9 of the Terms and Conditions. For the avoidance of doubt, such
amendment shall not apply in any other circumstances in respect of
either party to this Agreement.
(o) ADDITIONAL DEFINITIONS
Words and expressions defined in the Amended and Restated Master
Definitions and Interpretation Schedule (the MASTER SCHEDULE) and the
Ninth Issuer Master Definitions and Construction Schedule (the ISSUER
SCHEDULE) (together the MASTER DEFINITIONS SCHEDULE) each signed for
the purposes of identification on 8th December, 2005 shall,
19
except so far as the context otherwise requires, have the same meaning
in this Agreement. In the event of any inconsistency between the
definitions in this Agreement and in the Master Definitions Schedule,
the definitions in this Agreement shall prevail. In the event of any
inconsistency between the Master Schedule and the Issuer Schedule, the
Issuer Schedule shall prevail. The rules of interpretation set out in
the Master Definitions Schedule shall apply to this Agreement.
(p) CALCULATIONS
Upon the occurrence of an Event of Default or an Additional Termination
Event with respect to Party A, Party B will be entitled (but not
obliged in the event that it does not designate an Early Termination
Date) to proceed in accordance with Section 6 of the Agreement subject
to the following:
(i) For the purposes of Section 6(d)(i), Party B's obligation with
respect to the extent of information to be provided with its
calculations is limited to information Party B has already
received in writing (provided that Party B acknowledges verbal
quotations shall not be deemed to be valid quotations for the
purpose of Market Quotation) and to the extent that Party B is
able to release such information without breaching the
provisions of any law applicable to Party B.
(ii) The following amendments shall be deemed to be made to the
definitions of "Market Quotation":
(A) the word "firm" shall be added before the word
"quotations" in the second line;
(B) the words "provided that the documentation relating
thereto is either the same as this Agreement and the
existing Confirmations hereto and the short-term,
unsecured and unsubordinated debt obligations of the
Reference Market-maker are rated not less than "A-1+"
by S&P, " P-1" by Xxxxx'x and "F1" by Fitch (or, if
such Reference Market-maker's short-term unsecured
and unsubordinated debt obligations are not rated by
a Rating Agency, at such equivalent rating by another
internationally recognised rating agency as is
acceptable to such rating agency) or the Rating
Agencies have confirmed in writing such documentation
will not adversely impact the ratings of the Series 1
Class A Ninth Issuer Notes" shall be added after
"agree" in the sixteenth line; and
(C) the last sentence shall be deleted and replaced with
the following:
"If, on the last date set for delivery of quotations,
exactly two quotations are provided, the Market
Quotation will be either (a) the higher of the two
quotations where there would be a sum payable by
Party A to Party B, or (b) the lower of the two
quotations where there would be a sum payable by
Party B to Party A. Party B acknowledges and agrees
that, if following the termination of this Agreement,
Party B enters into other transactions to replace the
transactions under this Agreement and (I) in the case
of (a) above, the termination payment paid by Party A
to Party B under this Agreement is more than the sum
of (i) (a) the amount paid by Party B to enter into
such new
20
transactions (plus any associated costs incurred by
Party B) or (b) the negative of the amount paid to
Party B to enter into such new transactions (plus any
associated costs incurred by Party B) and (ii) Unpaid
Amounts owed to Party B as of the Early Termination
Date or (II) in the case of (b) above, the
termination payment paid by Party B to Party A under
this Agreement is less than (i) the amount paid to
Party B to enter into such new transactions (minus
any associated costs incurred by Party B) less (ii)
Unpaid Amounts owed to Party B as of the Early
Termination Date, then Party B shall pay the amount
of the relevant excess to Party A. If only one
quotation is provided on such date, Party B may, in
its discretion, accept such quotation as the Market
Quotation and if Party B does not accept such
quotation as the Market Quotation (or if no quotation
has been provided), it will be deemed that the Market
Quotation in respect of the Terminated Transaction
cannot be determined."
(iii) For the purpose of the definition of "Market Quotation", and
without limiting the general rights of Party B under the
Agreement:
(A) Party B will undertake to use its reasonable efforts
to obtain at least three firm quotations as soon as
reasonably practicable after the Early Termination
Date and in any event within the time period
specified pursuant to sub-paragraph (iii)(C) below;
(B) Party A shall, for the purposes of Section 6(e), be
permitted to obtain quotations from Reference
Market-makers for the purposes of determining Market
Quotation; and
(C) if no quotations have been obtained within six Local
Business Days after the occurrence of the Early
Termination Date or such longer period as Party B may
specify in writing to Party A, then it will be deemed
that the Market Quotation in respect of the
Terminated Transaction cannot be determined, provided
that if Party A is able to obtain quotations from
Reference Market-Makers, considered, by Party B, in
its sole discretion acting in a commercially
reasonable manner, to be reasonable quotations, those
quotations shall be utilised by Party B for the
purpose of Market Quotation.
(iv) Party B will be deemed to have discharged its obligations
under sub-paragraph (iii)(A) above if it promptly requests, in
writing within two Local Business Days after the Early
Termination Date that Party A obtains quotations from
Reference Market-makers on terms that reflect as closely as
possible the terms of the Terminated Transactions. Party B is
required to accept any of the quotations from such Reference
Market-Makers, obtained by Party A, if such quotations are
considered to be commercially reasonable as determined by
Party B in its sole discretion, acting in a commercially
reasonable manner.
(v) Party B will not be obliged to consult with Party A as to the
day and time of obtaining any quotations.
(q) TRANSFERS
Section 7 of this Agreement shall not apply to Party A, who shall be
required to
21
comply with, and shall be bound by, the following:
Without prejudice to Section 6(b)(ii), Party A may transfer all its
interest and obligations in and under this Agreement upon providing
five Local Business Days' prior written notice to the Issuer Security
Trustee, to any other entity (a TRANSFEREE) provided that:
(i) the Transferee's short-term unsecured and unsubordinated debt
obligations are then rated not less than "A-1+" by S&P, " P-1"
by Xxxxx'x and "F1" by Fitch (or, if such Transferee's
short-term, unsecured and unsubordinated debt obligations are
not rated by a Rating Agency, at such equivalent rating by any
internationally recognised rating agency as is acceptable to
such Rating Agency) or such Transferee's obligations under
this Agreement are guaranteed by an entity whose short-term,
unsecured and unsubordinated debt obligations are then rated
not less than "A-1+" by S&P, " P-1" by Xxxxx'x and "F1" by
Fitch (or if such entity's short-term, unsecured and
unsubordinated debt obligations are not rated by a Rating
Agency, at such equivalent rating by another internationally
recognised rating agency as is acceptable to such Rating
Agency);
(ii) as of the date of such transfer, the Transferee will not, as a
result of such transfer, be required to withhold or deduct on
account of any Tax under this Agreement;
(iii) a Termination Event or an Event of Default will not occur
under this Agreement as a result of such transfer;
(iv) no additional amount will be payable by Party B to Party A or
the Transferee on the next succeeding Scheduled Payment Date
as a result of such transfer; and
(v) (if the Transferee is domiciled in a different jurisdiction
from both Party A and Party B) S&P, Xxxxx'x and Fitch have
provided prior written notification that the then current
ratings of the Series 1 Class A Ninth Issuer Notes will not be
adversely affected.
Following such transfer all references to Party A shall be deemed to be
references to the Transferee.
Save as otherwise provided for in this Agreement and notwithstanding
Section 7, Party A shall not be permitted to transfer (by way of
security or otherwise) this Agreement or any interest or obligation in
or under this Agreement without the prior written consent of the Issuer
Security Trustee.
(r) NOTICE OF REDEMPTION OF THE NOTES
The Issuer Security Trustee will notify Party A promptly following it
giving or receiving any notice (including any Ninth Issuer Note
Enforcement Notice) in connection with any redemption, purchase and
cancellation of all of the Series 1 Class A Ninth Issuer Notes by Party
B.
(s) CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
22
A person who is not a party to this Agreement shall have no right under
the Contracts (Rights of Third Parties) Xxx 0000 to enforce any of its
terms but this shall not affect any right or remedy of a third party
which exists or is available apart from that Act.
(t) NINTH ISSUER DEED OF CHARGE
Party B undertakes to Party A and the Issuer Security Trustee that its
obligations to Party A under this Agreement shall at all times be
secured by the Ninth Issuer Deed of Charge.
DEUTSCHE BANK AG, LONDON BRANCH XXXXXX FINANCING (NO.9) PLC
By: By:
Name: Name:
Title: Title:
Date: Date:
THE BANK OF NEW YORK, LONDON BRANCH
By:
Name:
Title:
Date:
23
SERIES 2 CLASS A
From: Deutsche Bank AG, London Branch
Winchester House
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
To: Xxxxxx Financing (No. 9) PLC
Abbey Xxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Regent's Place
London
NW1 3AN
Attention: Company Secretary
To: Xxx Xxxx xx Xxx Xxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: Global Structured Finance - Corporate Trustee
8th December, 2005
Dear Sirs
CONFIRMATION - SERIES 2 CLASS A USD TO GBP - CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the swap
transaction entered into between us on the Trade Date specified below (the SWAP
TRANSACTION). This letter constitutes a CONFIRMATION as referred to in the 1992
ISDA Master Agreement (Multicurrency - Cross Border) (Series 2 Class A) and the
Schedule thereto entered into between Deutsche Bank AG, London Branch, Xxxxxx
Financing (No. 9) PLC and The Bank of New York, London Branch (the ISSUER
SECURITY TRUSTEE) on the date hereof as amended and supplemented from time to
time (the AGREEMENT).
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps & Derivatives Association, Inc. (the
DEFINITIONS) are incorporated into this Confirmation. In the event of any
inconsistency between any of the following, the first listed shall govern: (a)
this Confirmation, (b) the Master Definitions Schedule, and (c) the Definitions.
The term TRANSACTION as used herein shall, for the purposes of the Definitions,
have the same meaning as SWAP TRANSACTION.
1. The following terms relate to all Transactions to which this
Confirmation relates:
Party A: Deutsche Bank AG, London Branch
24
Party B: Xxxxxx Financing (No. 9) PLC
Trade Date: 22nd November, 2005
Effective Date: 8th December, 2005
Termination Date: The earlier of (a) the
Party A Payment Date
falling in July 2013 and
(b) and the date on which
all of the Series 2 Class A
Ninth Issuer Notes are
redeemed in full.
USD/GBP Currency Swap Rate: 1.70940037 (USD per GBP)
Business Days: London, New York and TARGET
Business Day Convention: Following
Calculation Agent: Party A
Party A Floating Amounts:
Party A Currency Amount: In respect of each Party A
Calculation Period, an
amount in USD equal to the
principal amount
outstanding of the Series 2
Class A Ninth Issuer Notes
on the first day of such
Calculation Period (after
taking into account any
redemption on such day).
Party A Payment Dates: Each 15th January, 15th April,
15th July and 15th October from
and including 18th April,
2006 up to and including
the Termination Date.
Floating Rate for
Initial Calculation Period: Linear Interpolation based on
4 month and 5 month USD-
LIBOR-BBA is applicable.
Party A
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 3 months
Spread: For the period from and
including the Effective Date to
(and including) 15th October,
2010 0.06 per cent. per annum
and for the period from (but
excluding) 15th October 2010 to
(and including) the Termination
Date, 0.12 per cent. per annum.
Party A Floating Rate Day Count
Fraction: Actual/360
Rounding: Rounded to the nearest cent
25
Reset Date: Two Business Days before the
first day of the relevant
Calculation Period.
Party B Floating Amounts:
Party B Currency Amount: In respect of each Party B
Calculation Period, an amount
in GBP equivalent to the Party A
Currency Amount for the Party A
Calculation Period commencing on
the first day of such Party B
Calculation Period, converted by
reference to the USD Currency
Swap Rate.
Party B
Payment Dates: Each 15th January, 15th April,
15th July and 15th October of
each year commencing on 18th
April, 2006 up to and including
the Termination Date.
Floating Rate for
Initial Calculation Period: Linear Interpolation based on
4 month and 5 month
GBP-LIBOR-BBA is applicable.
Party B
Floating Rate Option: GBP-LIBOR-BBA
Designated Maturity: 3 months
Spread: For the period from and
including the Effective Date to
(and including) 15th October,
2010, 0.0746 per cent. per
annum and for the period from
(but excluding) 15th
October, 2010, to and including
the Termination Date,
0.3492 per cent. per annum.
Party B Floating Rate Day
Count Fraction: Actual/365(Fixed)
Rounding: Rounded to the nearest xxxxx
Reset Date: First day of the relevant
Calculation Period.
Initial Exchange:
Initial Exchange Date: 8th December, 2005
Party A Initial
Exchange Amount: GBP 1,272,376,000.00
Party B Initial
Exchange Amount: USD 2,175,000,000.00
26
Final Exchange:
Final Exchange Date: Termination Date
Party A Final
Exchange Amount: An amount in USD
equal to the principal
amount outstanding of the
Series 2 Class A Ninth
Issuer Notes on the Final
Exchange Date (before
taking into account any
redemption on such day).
Party B Final
Exchange Amount: The GBP equivalent of the
Party A Final Exchange Amount
for the Final Exchange Date
converted by reference to
the USD Currency Swap Rate.
2. Account Details:
Payments to Party A
in USD: Bank: Deutsche Bank Trust Company Americas, New York
SWIFT.: BKTRU0533
Account Number: 00000000
Account Name: Deutsche Bank AG, London
Payments to Party A
in GBP: Bank: Deutsche Bank AG, London Branch
Sort Code: 40-50-81
SWIFT: DEUTGB2L
Payments to Party B
in USD: Correspondent Bank: Citibank, N.A., New York
ABA No.: 000000000
Beneficiary Bank: Citibank, N.A., London
Account Number: 0010855499
Sort Code: 18-50-04
Beneficiary: Xxxxxx Financing (No. 9) PLC
IBAN No: XX00 XXXX 0000 0000 0000 00
27
Payments to Party B
in GBP: Bank: Abbey National plc
Account Number: 00000000
Sort Code: 09-02-40
Beneficiary: Xxxxxx Financing (No. 9) PLC
3. Notice Details:
Party A: Deutsche Bank AG, London Branch
Address: Xxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Facsimile Number: x00 000 000 0000
Telephone Number: x00 000 000 0000
Attention: Swap Documentation
Party B: Xxxxxx Financing (No. 9) PLC
Address: c/o Abbey National plc
0 Xxxxxx Xxxxxx
Xxxxxx'x Xxxxx
Xxxxxx
XX0 0XX
Facsimile Number: x00 (0) 00 0000 0000
Attention: Company Secretary
With a copy to: Abbey National plc
Abbey House (AAM 126)
000 Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxxxx
XX0 0XX
Facsimile Number: x00 (0) 0000 000000
Attention: Securitisation Team, Retail Credit Risk
With a copy to the
Issuer Security
Trustee: The Bank of New York
Address: Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
28
Facsimile Number: x00 (0) 00 0000 0000/6399
Attention: Global Structured Finance - Corporate Trustee
Yours faithfully
DEUTSCHE BANK AG, LONDON BRANCH
By:
Name:
Title:
Confirmed as of the date first written:
XXXXXX FINANCING (NO. 9) PLC
By:
Name:
Title:
THE BANK OF NEW YORK, LONDON BRANCH
By:
Name:
Title:
29
