Exhibit 4.9
EXECUTION COPY
NINTH ISSUER CASH MANAGEMENT AGREEMENT
DATED 8 DECEMBER, 2005
ABBEY NATIONAL PLC
(AS NINTH ISSUER CASH MANAGER)
AND
XXXXXX FINANCING (NO. 9) PLC
(THE NINTH ISSUER)
AND
THE BANK OF NEW YORK, LONDON BRANCH
(THE NINTH ISSUER SECURITY TRUSTEE)
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation............................................1
2. Appointment of Ninth Issuer Cash Manager..................................2
3. The Ninth Issuer Cash Management Services.................................2
4. Payments, Accounts, Ledgers...............................................3
5. Payments under Ninth Issuer Swaps and Termination of Ninth Issuer Swaps...6
6. No Liability..............................................................7
7. Costs and Expenses........................................................7
8. Information...............................................................7
9. Remuneration..............................................................9
10. Covenants of Ninth Issuer Cash Manager....................................9
11. Ninth Issuer Cash Management Services Non-Exclusive......................10
12. Termination..............................................................10
13. Further Assurance........................................................13
14. Miscellaneous............................................................13
15. Confidentiality..........................................................14
16. Notices..................................................................15
17. Variation and Waiver.....................................................15
18. No Partnership...........................................................15
19. Assignment...............................................................16
20. Exclusion of Third Party Rights..........................................16
21. Counterparts.............................................................16
22. Governing Law............................................................16
SCHEDULE
1. The Cash Management Services.............................................17
2. Cash Management and Maintenance of Ledgers...............................19
3. Form of Ninth Issuer Quarterly Report....................................23
Signatories...................................................................26
THIS NINTH ISSUER CASH MANAGEMENT AGREEMENT is made on 8 December, 2005
BETWEEN:
(1) ABBEY NATIONAL PLC (registered number 2294747), a public limited
company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x
Xxxxx, Xxxxxx XX0 0XX in its capacity as cash manager (the NINTH ISSUER
CASH MANAGER, which expression shall include such other person as may
from time to time be appointed as cash manager pursuant to this
Agreement);
(2) XXXXXX FINANCING (NO. 9) PLC (registered number 5115696), a public
limited company incorporated under the laws of England and Wales whose
registered office is at Abbey National House, 2 Triton Square, Regent's
Place, London NW1 3AN (the NINTH ISSUER); and
(3) THE BANK OF NEW YORK, LONDON BRANCH acting through its office at 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX in its capacity as trustee
(the NINTH ISSUER SECURITY TRUSTEE which expression shall include such
persons and all other persons for the time being acting as the trustee
or trustees under the Ninth Issuer Deed of Charge).
WHEREAS:
(A) On the Ninth Issuer Closing Date, the Ninth Issuer will issue the Ninth
Issuer Notes. From the proceeds of the issue of the Ninth Issuer Notes,
the Ninth Issuer shall make the Ninth Issuer Term Advances to Funding.
(B) The Ninth Issuer Cash Manager is willing to provide cash management
services to the Ninth Issuer and the Ninth Issuer Security Trustee on
the terms and subject to the conditions contained in this Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The Amended and Restated Master Definitions and Construction Schedule
and the Ninth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by Xxxxx & Xxxxx LLP and
Xxxxxxxxx and May on 8 December, 2005 (as the same may be amended,
varied or supplemented from time to time with the consent of the
parties hereto) are expressly and specifically incorporated into this
Agreement and, accordingly, the expressions defined in the Amended and
Restated Master Definitions and Construction Schedule and the Ninth
Issuer Master Definitions and Construction Schedule (as so amended,
varied or supplemented from time to time) shall, except where the
context otherwise requires and save where otherwise defined herein,
have the same meanings in this Agreement, including the Recitals hereto
and this Agreement shall be construed in accordance with the
interpretation provisions set out in Clause 2 of the Amended and
Restated Master Definitions and Construction Schedule and Clause 2 of
the Ninth Issuer Master Definitions and Construction Schedule. In the
event of a conflict between the Amended and Restated Master Definitions
and Construction Schedule and the Ninth Issuer Master Definitions and
Construction Schedule, the Ninth Issuer Master Definitions and
Construction Schedule shall prevail.
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2. APPOINTMENT OF NINTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to Clause 12, the Ninth Issuer and the Ninth
Issuer Security Trustee (according to their respective estates and
interests) each hereby appoints the Ninth Issuer Cash Manager as its
lawful agent to provide the Ninth Issuer Cash Management Services set
out in this Agreement, including in relation to the Ninth Issuer Notes
to be issued by the Ninth Issuer. The Ninth Issuer Cash Manager in each
case hereby accepts such appointment on the terms and subject to the
conditions of this Agreement.
2.2 DUTIES PRESCRIBED BY TRANSACTION DOCUMENTS
For the avoidance of doubt and in connection with the powers conferred
under Clause 2.1, save as expressly provided elsewhere in this
Agreement, nothing herein shall be construed so as to give the Ninth
Issuer Cash Manager any powers, rights, authorities, directions or
obligations other than as specified in this Agreement or any of the
other Transaction Documents.
2.3 APPOINTMENT CONDITIONAL UPON ISSUANCE OF NINTH ISSUER NOTES
The appointment pursuant to Clause 2.1 is conditional upon the issue of
the Ninth Issuer Notes and shall take effect upon and from the Ninth
Issuer Closing Date automatically without any further action on the
part of any person, PROVIDED THAT if the issue of the Ninth Issuer
Notes has not occurred on or by 8 December, 2005, or such later date as
the Ninth Issuer and the Lead Managers may agree, this Agreement shall
cease to be of further effect.
3. THE NINTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Ninth Issuer Cash Manager shall provide the services set out in
this Agreement (including, without limitation, the Schedules attached
hereto).
3.2 APPROVALS AND AUTHORISATIONS
The Ninth Issuer Cash Manager shall maintain, or procure the
maintenance of, the approvals, authorisations, consents and licences
required in connection with the business of the Ninth Issuer and shall
prepare and submit, or procure the preparation and submission of, on
behalf of the Ninth Issuer all necessary applications and requests for
any further approvals, authorisations, consents or licences which may
be required in connection with the business of the Ninth Issuer and
shall, so far as it reasonably can do so, perform the Ninth Issuer Cash
Management Services in such a way as not to prejudice the continuation
of any such approvals, authorisations, consents or licences.
3.3 COMPLIANCE WITH TRANSACTION DOCUMENTS, ETC.
The Ninth Issuer Cash Management Services shall include procuring (so
far as the Ninth Issuer Cash Manager, using its reasonable endeavours,
is able so to do) compliance by the Ninth Issuer with all applicable
legal requirements and with the terms of the Ninth Issuer Transaction
Documents, PROVIDED ALWAYS THAT the Ninth Issuer Cash Manager shall not
lend or provide any sum to the Ninth Issuer and that the Ninth Issuer
Cash Manager shall have no liability whatsoever to the Ninth Issuer,
the Ninth Issuer Security Trustee or any
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other person for any failure by the Ninth Issuer to make any payment
due by any of them under any of the Ninth Issuer Transaction Documents
(other than to the extent arising from any failure by the Ninth Issuer
Cash Manager to perform any of its obligations under any of the
Transaction Documents).
3.4 LIABILITY OF NINTH ISSUER CASH MANAGER
(a) The Ninth Issuer Cash Manager shall indemnify each of the Ninth Issuer
and the Ninth Issuer Security Trustee on demand on an after Tax basis
for any loss, liability, claim, expense or damage suffered or incurred
by it in respect of the negligence, fraud, bad faith or wilful default
of the Ninth Issuer Cash Manager in carrying out its functions as Ninth
Issuer Cash Manager under, or as a result of a breach by the Ninth
Issuer Cash Manager of, the terms and provisions of this Agreement or
such other Transaction Documents to which the Ninth Issuer Cash Manager
is a party (in its capacity as such) in relation to such functions.
(b) For the avoidance of doubt, the Ninth Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or damage
suffered or incurred by the Ninth Issuer or the Ninth Issuer Security
Trustee and/or any other person as a result of the proper performance
of the Ninth Issuer Cash Management Services by the Ninth Issuer Cash
Manager save to the extent that such loss, liability, claim, expense or
damage is suffered or incurred as a result of any negligence, fraud,
bad faith or wilful default of the Ninth Issuer Cash Manager under, or
as a result of a breach by the Ninth Issuer Cash Manager of, the terms
and provisions of this Agreement or any of the other Transaction
Documents to which the Ninth Issuer Cash Manager is a party (in its
capacity as such) in relation to such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 NINTH ISSUER BANK ACCOUNT
(a) The Ninth Issuer Cash Manager hereby confirms that the Ninth Issuer
Transaction Accounts have been established on or before the date hereof
and that mandates in the agreed form will apply thereto at the Ninth
Issuer Closing Date. The Ninth Issuer Cash Manager undertakes (to the
extent to which the same is within its control in its capacity as Ninth
Issuer Cash Manager) that at the Ninth Issuer Closing Date, the Ninth
Issuer Transaction Accounts will be operative and that the Ninth Issuer
Cash Manager will not knowingly create or permit to subsist any
Security Interest in relation to the Ninth Issuer Transaction Accounts
other than as created under or permitted pursuant to the Ninth Issuer
Deed of Charge.
(b) The Ninth Issuer Cash Manager shall procure that the following amounts
are paid into the Ninth Issuer Transaction Accounts:
(i) all amounts of interest paid on the Ninth Issuer Term
Advances;
(ii) all repayments of principal on the Ninth Issuer Term
Advances;
(iii) all amounts received by the Ninth Issuer pursuant to the
Dollar Currency Swap Agreements and the Euro Currency Swap
Agreement (other than any amounts of collateral required to be
transferred by a Ninth Issuer Swap Provider which shall be
paid into the relevant Ninth Issuer Collateral Account); and
(iv) any other amounts whatsoever received by or on behalf of the
Ninth Issuer after the Ninth Issuer Closing Date,
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and the Ninth Issuer Cash Manager shall procure that all interest
earned on the Ninth Issuer Transaction Accounts and all investment
proceeds from Authorised Investments purchased from amounts standing to
the credit of the Ninth Issuer Bank Accounts are credited to such
account except that any interest earned in respect of any collateral
transferred by any Ninth Issuer Swap Provider under any Ninth Issuer
Swap Agreement or any investment proceeds from Authorised Investments
in which such collateral is invested shall be paid into the relevant
Ninth Issuer Collateral Account. All amounts received by the Ninth
Issuer denominated (i) in Sterling shall be paid into the Ninth Issuer
Sterling Account; (ii) in Dollars shall be paid into the Ninth Issuer
Dollar Account; and (iii) in Euro shall be paid into the Ninth Issuer
Euro Account.
(c) Each of the payments into the Ninth Issuer Transaction Accounts
referred to in Clause 4.1(b) shall be made forthwith upon receipt by
the Ninth Issuer or the Ninth Issuer Cash Manager of the amount in
question.
(d) For the avoidance of doubt, as soon as reasonably practicable after
becoming aware of the same, the Ninth Issuer Cash Manager may, and
shall, withdraw Cash from the Ninth Issuer Transaction Accounts, if,
and to the extent that, such Cash was credited thereto in error and
shall use its reasonable endeavours to ensure that such Cash is applied
correctly thereafter.
(e) The Ninth Issuer Cash Manager shall promptly notify each of the Ninth
Issuer and the Ninth Issuer Security Trustee of any additional account
which supplements or replaces any account specifically referred to in
the definition of the "Ninth Issuer Transaction Accounts" in the Ninth
Issuer Master Definitions and Construction Schedule.
(f) Each of the Ninth Issuer Cash Manager and the Ninth Issuer undertakes
that, so far as it is able to procure the same, the Ninth Issuer
Transaction Accounts and all instructions and mandates in relation
thereto will continue to be operative and will not, save as permitted
pursuant to the Ninth Issuer Bank Account Agreement, be changed without
prior written consent of the Ninth Issuer Security Trustee (such
consent not to be unreasonably withheld or delayed). For the avoidance
of doubt, the Ninth Issuer Cash Manager may change the authorised
signatories in respect of any instructions or mandates, without the
prior written consent of the Ninth Issuer Security Trustee, in
accordance with the terms of the Ninth Issuer Bank Account Agreement.
(g) (i) Any and all amounts of collateral provided to the Ninth
Issuer by any of the Ninth Issuer Swap Providers will be held
in the relevant Ninth Issuer Collateral Account;
(ii) for the avoidance of doubt, references in this Agreement to
amounts received from any of the Ninth Issuer Swap Providers
under any of the Ninth Issuer Swap Agreements will, save as
provided in Clause 4.1(g)(iii) below, exclude any and all
amounts of collateral provided to the Ninth Issuer by any
Ninth Issuer Swap Provider;
(iii) under each Ninth Issuer Swap Agreement:
(I) any amount standing to the credit of each Ninth
Issuer Collateral Account in respect of such Ninth
Issuer Swap Agreement, after the deduction of (A) the
applicable termination amount due, if any, or (B) any
amount which the Ninth Issuer is entitled to in
accordance with the terms of the credit support
agreement applicable thereto, in each case, from the
relevant Ninth Issuer Swap Provider to the Ninth
Issuer under such Ninth Issuer Swap Agreement, shall
be paid to the relevant Ninth Issuer Swap Provider in
accordance with terms of the relevant credit support
agreement; and
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(II) the remaining amounts standing to the credit of each
Ninth Issuer Collateral Account shall be applied to
discharge the relevant Ninth Issuer Swap Provider's
obligations to the Ninth Issuer by way of termination
amounts pursuant to the relevant Ninth Issuer Swap
Agreement; and
(iv) all amounts standing to the credit of each Ninth Issuer
Collateral Account after the application of (iii) above shall
be applied:
(I) prior to the enforcement of the Ninth Issuer
Security, in or towards the premium payable (if any)
as a result of entering into a replacement swap
agreement; or
(II) following the enforcement of the Ninth Issuer
Security subject to the terms of the Ninth Issuer
Deed of Charge, either: (i) in or towards the premium
payable (if any) as a result of entering into a
replacement swap agreement; or (ii) by the Ninth
Issuer Security Trustee as Ninth Issuer Revenue
Receipts in accordance with the relevant Ninth Issuer
Post-Enforcement Priority of Payments.
(h) In the event that the Ninth Issuer owes a termination payment to a
Ninth Issuer Swap Provider as a result of an early termination of a
Ninth Issuer Swap Agreement due to the ratings downgrade of a Ninth
Issuer Swap Provider, then any Swap Replacement Payment payable to the
Ninth Issuer by a replacement swap provider as a result of its entry
into a replacement swap agreement with the Ninth Issuer shall be
applied by the Ninth Issuer in or towards to costs of the termination
amount owed to the relevant Ninth Issuer Swap Provider and, for the
avoidance of doubt, will not constitute Ninth Issuer Revenue Receipts.
To the extent that an early termination of a Ninth Issuer Swap
Agreement is not caused by the ratings downgrade of a Ninth Issuer Swap
Provider then the Ninth Issuer Revenue Receipts shall include any Swap
Replacement Payment received by the Ninth Issuer.
4.2 WITHDRAWALS
(a) The Ninth Issuer Cash Manager may make withdrawals on behalf of the
Ninth Issuer from the Ninth Issuer Transaction Accounts, but only until
receipt of a copy of a Ninth Issuer Note Enforcement Notice served by
the Ninth Issuer Security Trustee on the Ninth Issuer, as permitted by
this Agreement but shall not, in carrying out its functions as Ninth
Issuer Cash Manager under this Agreement, otherwise make withdrawals
from the Ninth Issuer Transaction Accounts.
(b) Upon receipt of such a Ninth Issuer Note Enforcement Notice, no amount
shall be withdrawn from the Ninth Issuer Transaction Accounts by the
Ninth Issuer Cash Manager without the prior written consent of the
Ninth Issuer Security Trustee.
4.3 CASH MANAGEMENT
In administering the Ninth Issuer Transaction Accounts on behalf of the
Ninth Issuer and the Ninth Issuer Security Trustee, the Ninth Issuer
Cash Manager shall comply with the provisions of Schedule 2 prior to
receipt by the Ninth Issuer Cash Manager of a copy of any Ninth Issuer
Note Enforcement Notice served on the Ninth Issuer. Following service
of a Ninth Issuer Note Enforcement Notice, the Ninth Issuer Security
Trustee or any Receiver appointed by the Ninth Issuer Security Trustee
will administer the Ninth Issuer Transaction Accounts in accordance
with the terms of the Ninth Issuer Deed of Charge.
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5. PAYMENTS UNDER NINTH ISSUER SWAPS AND TERMINATION OF NINTH ISSUER SWAPS
5.1 Subject to the order of priorities of payment set out in this Agreement
or, as the case may be, the Ninth Issuer Deed of Charge, on each
Interest Payment Date, the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay amounts received in respect of the
Ninth Issuer Series 1 Term AAA Advance (after making payments ranking
higher in the order of priority of payments) to the relevant Dollar
Currency Swap Provider. Amounts received from the relevant Dollar
Currency Swap Provider will be applied to pay amounts due to the
holders of the Series 1 Class A Ninth Issuer Notes in accordance with
the Ninth Issuer Pre-Enforcement Priority of Payments or, as the case
may be, the Ninth Issuer Post-Enforcement Priority of Payments.
5.2 Subject to the order of priorities of payment set out in this Agreement
or, as the case may be, the Ninth Issuer Deed of Charge, on each
Interest Payment Date, the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay amounts received in respect of the
Ninth Issuer Series 2 Term AAA Advance (after making payments ranking
higher in the order of priority of payments) to the relevant Dollar
Currency Swap Provider. Amounts received from the relevant Dollar
Currency Swap Provider will be applied to pay amounts due to the
holders of the Series 2 Class A Ninth Issuer Notes in accordance with
the Ninth Issuer Pre-Enforcement Priority of Payments or, as the case
may be, the Ninth Issuer Post-Enforcement Priority of Payments.
5.3 Subject to the order of priorities of payment set out in this Agreement
or, as the case may be, the Ninth Issuer Deed of Charge, on each
Interest Payment Date, the Ninth Issuer, or the Ninth Issuer Cash
Manager on its behalf, will pay amounts received in respect of the
Ninth Issuer Series 3 A1 Term AAA Advance (after making payments
ranking higher in the order of priority of payments) to the relevant
Euro Currency Swap Provider. Amounts received from the relevant Euro
Currency Swap Provider will be applied to pay amounts due to the
holders of the relevant classes of Series 3 Class A1 Ninth Issuer Notes
in accordance with the Ninth Issuer Pre-Enforcement Priority of
Payments or, as the case may be, the Ninth Issuer Post-Enforcement
Priority of Payments.
5.4 If on or prior to the date of the earlier of (i) repayment in full of
the Ninth Issuer Notes or (ii) the service of a Ninth Issuer Note
Enforcement Notice, any of the Dollar Currency Swaps or the Euro
Currency Swap is terminated, the Ninth Issuer Cash Manager (on behalf
of the Ninth Issuer and the Ninth Issuer Security Trustee) shall
purchase a replacement hedge in respect of the relevant class of Ninth
Issuer Notes, against fluctuations in, as appropriate, (a) the relevant
currency swap rate between Dollars and Sterling and/or the possible
variance between a rate calculated by reference to LIBOR for
three-month Sterling deposits and (i) USD-LIBOR for one-month Dollar
deposits in relation to the Series 1 Class A Ninth Issuer Notes (and
for the first interest period with respect to the Series 1 Class A
Ninth Issuer Notes, the linear interpolation of the arithmetic mean of
the USD-LIBOR based rate for one-month and two-month dollar deposits)
or (ii) USD-LIBOR for three-month Dollar deposits in relation to the
and the Series 2 Class A Ninth Issuer Notes (and for the first interest
period, the linear interpolation of the arithmetic mean of the USD
LIBOR based rate for four-month and five-month dollar deposits) or (b)
the currency swap rate between Euro and Sterling and/or the possible
variance between a rate calculated by reference to LIBOR for
three-month Sterling deposits and EURIBOR for three-month Euro deposits
in relation to the Series 3 Class A1 Ninth Issuer Notes (and for the
first interest period, the linear interpolation of the arithmetic mean
of the EURIBOR based rate for four-month and five-month euro deposits),
and, in each case, on terms acceptable to the Rating Agencies and the
Ninth Issuer and the Ninth Issuer Security Trustee and with a swap
provider whom the Rating Agencies have previously
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confirmed in writing to the Ninth Issuer and the Ninth Issuer Security
Trustee will not cause the then current ratings of the Ninth Issuer
Notes to be downgraded, withdrawn or qualified. Notwithstanding, and in
addition to, the provisions of Clause 4.1(g), the Ninth Issuer may
apply any early termination payment received from the relevant Dollar
Currency Swap Provider or Euro Currency Swap Provider, for such
purpose.
5.5 If the Ninth Issuer receives a Refund Payment (as defined in Ninth
Issuer Revenue Receipts) then the Ninth Issuer, or the Ninth Issuer
Cash Manager on its behalf, will pay over an amount equal to such
Refund Payment to the relevant Ninth Issuer Swap Provider upon receipt.
6. NO LIABILITY
Save as otherwise provided in this Agreement, the Ninth Issuer Cash
Manager shall have no liability for the obligations of either the Ninth
Issuer Security Trustee or the Ninth Issuer under any of the
Transaction Documents or otherwise and nothing herein shall constitute
a guarantee, or similar obligation, by the Ninth Issuer Cash Manager of
either Funding, the Ninth Issuer Security Trustee or the Ninth Issuer
in respect of any of them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Ninth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Ninth Issuer
Post-Enforcement Priority of Payments, the Ninth Issuer will on each
Interest Payment Date reimburse the Ninth Issuer Cash Manager for all
out-of-pocket costs, expenses and charges (together with any amounts in
respect of Irrecoverable VAT due thereon) properly incurred by the
Ninth Issuer Cash Manager in the performance of the Ninth Issuer Cash
Management Services including any such costs, expenses or charges not
reimbursed to the Ninth Issuer Cash Manager on any previous Interest
Payment Date and the Ninth Issuer Cash Manager shall supply the Ninth
Issuer with an appropriate VAT invoice issued by the Ninth Issuer Cash
Manager or, if the Ninth Issuer Cash Manager has treated the relevant
cost, expense or charge as a disbursement for VAT purposes, by the
person making the supply.
8. INFORMATION
8.1 USE OF I.T. SYSTEMS
(a) The Ninth Issuer Cash Manager represents and warrants that at the date
hereof, in respect of the software which is to be used by the Ninth
Issuer Cash Manager in providing the Ninth Issuer Cash Management
Services, it has in place all necessary licences and/or consents from
the respective licensor or licensors (if any) to use such software.
(b) The Ninth Issuer Cash Manager undertakes that it shall for the duration
of this Agreement, use reasonable endeavours to:
(i) ensure that the licences and/or consents referred to in
paragraph (a) are maintained in full force and effect; and
(ii) except in so far as it would breach any other of its legal
obligations, grant to any person to whom it may sub-contract
or delegate the performance of all or any of its powers and
obligations under this Agreement and/or to such person as the
Ninth Issuer elects as a substitute cash manager in accordance
with the terms of this Agreement a licence to use any
proprietary software together with any updates which may be
made thereto from time to time.
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(c) The Ninth Issuer Cash Manager shall use reasonable endeavours to
maintain in working order the information technology systems used by
the Ninth Issuer Cash Manager in providing the Ninth Issuer Cash
Management Services.
(d) The Ninth Issuer Cash Manager shall pass to any person to whom it may
sub-contract or delegate the performance of all or any of its powers
and obligations under this Agreement and/or to such person as the Ninth
Issuer elects as a substitute cash manager in accordance with the terms
of this Agreement the benefit of any warranties relating to the above
software insofar as the same are capable of assignment.
8.2 BANK ACCOUNT STATEMENTS
The Ninth Issuer Cash Manager shall take all reasonable steps to ensure
that it receives a monthly bank statement in relation to each of the
Ninth Issuer Bank Accounts and that it furnishes a copy of such
statements to the Ninth Issuer and the Ninth Issuer Security Trustee.
8.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Ninth Issuer Cash Manager shall
permit the Auditors of the Ninth Issuer and any other person nominated
by the Ninth Issuer Security Trustee, (to whom the Ninth Issuer Cash
Manager has no reasonable objection) at any time during normal office
hours upon reasonable notice to have access, or procure that such
person or persons are granted access, to all books of record and
account relating to the Ninth Issuer Cash Management Services provided
by the Ninth Issuer Cash Manager and related matters in accordance with
this Agreement.
8.4 STATUTORY OBLIGATIONS
The Ninth Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Ninth Issuer, to prepare or procure the preparation of
and file all reports, annual returns, financial statements, statutory
forms and other returns which the Ninth Issuer is required by law to
prepare and file. Subject to approval thereof by the directors of the
Ninth Issuer, the Ninth Issuer Cash Manager shall cause such accounts
to be audited by the Auditors and shall procure so far as it is able so
to do that the Auditors shall make a report thereon as required by law
and copies of all such documents shall be delivered to the Ninth Issuer
Security Trustee, the Ninth Issuer and the Rating Agencies as soon as
practicable after the end of each accounting reference period of the
Ninth Issuer.
8.5 INFORMATION COVENANTS
(a) The Ninth Issuer Cash Manager shall provide the Ninth Issuer, the Ninth
Issuer Security Trustee, the Seller and the Rating Agencies with a
quarterly report in, or substantially in, the form set out in Schedule
3 in respect of the Ninth Issuer. Such quarterly report shall be
delivered to the Ninth Issuer, the Ninth Issuer Security Trustee, the
Seller and the Rating Agencies by the last Business Day of the month in
which the relevant Interest Payment Date occurs.
(b) The Ninth Issuer Cash Manager shall provide, or procure the provision
of, to the Ninth Issuer, the Ninth Issuer Security Trustee and the
Rating Agencies copies of any annual returns or financial statements
referred to in Clause 8.4 as soon as reasonably practicable after the
preparation thereof.
(c) The Ninth Issuer Cash Manager shall notify the Rating Agencies in
writing of the details of (i) any material amendment to the Ninth
Issuer Transaction Documents to which the Ninth
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Issuer is a party; (ii) the occurrence of a Ninth Issuer Note Event of
Default; and (iii) any other information relating to the Ninth Issuer
Cash Manager as the Rating Agencies may reasonably request in
connection with its obligations under this Agreement, PROVIDED THAT
such request does not adversely interfere with the Ninth Issuer Cash
Manager's day-to-day provision of the Ninth Issuer Cash Management
Services under the other terms of this Agreement.
(d) The Ninth Issuer Cash Manager shall, at the request of the Ninth Issuer
Security Trustee, furnish the Ninth Issuer Security Trustee and the
Rating Agencies with such other information relating to its business
and financial condition as it may be reasonable for the Ninth Issuer
Security Trustee to request in connection with this Agreement, PROVIDED
THAT the Ninth Issuer Security Trustee shall not make such a request
more than once every three months unless, in the belief of the Ninth
Issuer Security Trustee, a Ninth Issuer Intercompany Loan Event of
Default, a Ninth Issuer Note Event of Default or a Ninth Issuer Cash
Manager Termination Event (as defined in Clause 12.1) shall have
occurred and is continuing or may reasonably be expected to occur and
PROVIDED FURTHER THAT such request does not adversely interfere with
the Ninth Issuer Cash Manager's day-to-day provision of the Ninth
Issuer Cash Management Services under the other terms of this
Agreement.
9. REMUNERATION
9.1 FEE PAYABLE
The Ninth Issuer shall pay to the Ninth Issuer Cash Manager for its
services hereunder a cash management fee which shall be agreed in
writing between the Ninth Issuer, the Ninth Issuer Security Trustee and
the Ninth Issuer Cash Manager from time to time.
9.2 PAYMENT OF FEE
The cash management fee referred to in Clause 9.1 shall be paid to the
Ninth Issuer Cash Manager in arrear on each Interest Payment Date in
the manner contemplated by and in accordance with the provisions of the
Ninth Issuer Pre-Enforcement Revenue Priority of Payments or, as the
case may be, the Ninth Issuer Post-Enforcement Priority of Payments.
10. COVENANTS OF NINTH ISSUER CASH MANAGER
10.1 COVENANTS
The Ninth Issuer Cash Manager hereby covenants with and undertakes to
each of the Ninth Issuer and the Ninth Issuer Security Trustee that
without prejudice to any of its specific obligations hereunder:
(a) it will devote all due skill, care and diligence to the
performance of its obligations and the exercise of its
discretions hereunder;
(b) it will comply with any proper directions, orders and
instructions which the Ninth Issuer or the Ninth Issuer
Security Trustee may from time to time give to it in
accordance with the provisions of this Agreement and, in the
event of any conflict, those of the Ninth Issuer Security
Trustee shall prevail;
(c) it will use its reasonable endeavours to keep in force all
licences, approvals, authorisations and consents which may be
necessary in connection with the performance of the Ninth
Issuer Cash Management Services and prepare and submit all
necessary applications and requests for any further approval,
authorisation,
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consent or licence required in connection with the performance
of the Ninth Issuer Cash Management Services;
(d) save as otherwise agreed with the Ninth Issuer and the Ninth
Issuer Security Trustee, it will provide free of charge to the
Ninth Issuer during normal office hours office space,
facilities, equipment and staff sufficient to fulfil the
obligations of the Ninth Issuer under this Agreement;
(e) it will not knowingly fail to comply with any legal
requirements in the performance of the Ninth Issuer Cash
Management Services;
(f) it will make all payments required to be made by it pursuant
to this Agreement on the due date for payment thereof for
value on such day without set-off (including, without
limitation, in respect of any fees owed to it) or
counterclaim; and
(g) it will not without the prior written consent of the Ninth
Issuer Security Trustee amend or terminate any of the Ninth
Issuer Transaction Documents save in accordance with their
terms.
10.2 DURATION OF COVENANTS
The covenants of the Ninth Issuer Cash Manager in Clause 10.1 shall
remain in force until this Agreement is terminated but without
prejudice to any right or remedy of the Ninth Issuer and/or the Ninth
Issuer Security Trustee arising from breach of any such covenant prior
to the date of termination of this Agreement.
11. NINTH ISSUER CASH MANAGEMENT SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Ninth Issuer Cash Manager
from rendering or performing services similar to those provided for in
this Agreement to or for itself or other persons, firms or companies or
from carrying on business similar to or in competition with the
business of the Ninth Issuer or the Ninth Issuer Security Trustee.
12. TERMINATION
12.1 NINTH ISSUER CASH MANAGER TERMINATION EVENTS
If any of the following events (NINTH ISSUER CASH MANAGER TERMINATION
EVENTS) shall occur:
(a) default is made by the Ninth Issuer Cash Manager in the
payment on the due date of any payment due and payable by it
under this Agreement and such default continues unremedied for
a period of three London Business Days after the earlier of
the Ninth Issuer Cash Manager becoming aware of such default
and receipt by the Ninth Issuer Cash Manager of written notice
from the Ninth Issuer or the Ninth Issuer Security Trustee, as
the case may be, requiring the same to be remedied; or
(b) default is made by the Ninth Issuer Cash Manager in the
performance or observance of any of its other covenants and
obligations under this Agreement, which in the reasonable
opinion of the Ninth Issuer Security Trustee is materially
prejudicial to the interests of the Ninth Issuer Secured
Creditors and such default continues unremedied for a period
of twenty days after the earlier of the Ninth Issuer Cash
Manager becoming aware of such default and receipt by the
Ninth Issuer Cash Manager of
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written notice from the Ninth Issuer Security Trustee
requiring the same to be remedied; or
(c) while the Ninth Issuer Cash Manager is the Seller, an
Insolvency Event occurs,
then the Ninth Issuer Security Trustee may at once or at any time
thereafter while such default continues by notice in writing to the
Ninth Issuer Cash Manager terminate its appointment as Ninth Issuer
Cash Manager under this Agreement with effect from a date (not earlier
than the date of the notice) specified in the notice.
12.2 RESIGNATION OF NINTH ISSUER CASH MANAGER
The appointment of the Ninth Issuer Cash Manager under this Agreement
may be terminated upon the expiry of not less than 12 months' notice of
termination given by the Ninth Issuer Cash Manager to the Ninth Issuer
and the Ninth Issuer Security Trustee PROVIDED THAT:
(a) the Ninth Issuer and the Ninth Issuer Security Trustee consent
in writing to such termination;
(b) a substitute cash manager shall be appointed, such appointment
to be effective not later than the date of such termination;
(c) such substitute cash manager has cash management experience
and is approved by the Ninth Issuer and the Ninth Issuer
Security Trustee;
(d) such substitute cash manager enters into an agreement
substantially on the same terms as the relevant provisions of
this Agreement or on such terms as are satisfactory to the
Ninth Issuer and the Ninth Issuer Security Trustee and the
Ninth Issuer Cash Manager shall not be released from its
obligations under the relevant provisions of this Agreement
until such substitute cash manager has entered into such new
agreement and the rights of the Ninth Issuer under such
agreement are charged in favour of the Ninth Issuer Security
Trustee on terms satisfactory to the Ninth Issuer Security
Trustee; and
(e) the then current ratings (if any) of the Ninth Issuer Notes
are not adversely affected as a result thereof, unless
otherwise agreed by an Extraordinary Resolution (as defined in
the Ninth Issuer Trust Deed) of the holders of the Ninth
Issuer Notes.
12.3 EFFECT OF TERMINATION
(a) On and after termination of the appointment of the Ninth Issuer Cash
Manager under this Agreement pursuant to this Clause 12, all authority
and power of the Ninth Issuer Cash Manager under this Agreement shall
be terminated and be of no further effect and the Ninth Issuer Cash
Manager shall not thereafter hold itself out in any way as the agent of
the Ninth Issuer or the Ninth Issuer Security Trustee pursuant to this
Agreement.
(b) Upon termination of the appointment of the Ninth Issuer Cash Manager
under this Agreement pursuant to this Clause 12, the Ninth Issuer Cash
Manager shall:
(i) forthwith deliver (and in the meantime hold on trust for, and
to the order of, the Ninth Issuer or the Ninth Issuer Security
Trustee, as the case may be) to the Ninth Issuer or the Ninth
Issuer Security Trustee, as the case may be or as it shall
direct, all books of account, papers, records, registers,
correspondence and documents in its possession or under its
control relating to the affairs of or belongings of the Ninth
Issuer or the
11
Ninth Issuer Security Trustee, as the case may be, (if
practicable, on the date of receipt) any monies then held by
the Ninth Issuer Cash Manager on behalf of the Ninth Issuer,
the Ninth Issuer Security Trustee and any other assets of the
Ninth Issuer and the Ninth Issuer Security Trustee;
(ii) take such further action as the Ninth Issuer or the Ninth
Issuer Security Trustee, as the case may be, may reasonably
direct at the expense of the Ninth Issuer or the Ninth Issuer
Security Trustee, as the case may be (including in relation to
the appointment of a substitute cash manager) provided that
the Ninth Issuer Security Trustee shall not be required to
take or direct to be taken such further action unless it has
been indemnified to its satisfaction;
(iii) provide all relevant information contained on computer records
in the form of magnetic tape, together with details of the
layout of the files encoded on such magnetic tapes; and
(iv) co-operate and consult with and assist the Ninth Issuer or the
Ninth Issuer Security Trustee or its nominee, as the case may
be, (which shall, for the avoidance of doubt, include any
Receiver appointed by it) for the purposes of explaining the
file layouts and the format of the magnetic tapes generally
containing such computer records on the computer system of the
Ninth Issuer or the Ninth Issuer Security Trustee or such
nominee, as the case may be.
12.4 NOTICE OF EVENT OF DEFAULT
The Ninth Issuer Cash Manager shall deliver to the Ninth Issuer and the
Ninth Issuer Security Trustee as soon as reasonably practicable but in
any event within three Business Days of becoming aware thereof a notice
of any Ninth Issuer Cash Manager Termination Event or any Ninth Issuer
Note Event of Default or any event which with the giving of notice or
expiry of any grace period or certification, as specified in such Ninth
Issuer Cash Manager Termination Event or Ninth Issuer Note Event of
Default would constitute the same.
12.5 GENERAL PROVISIONS RELATING TO TERMINATION
(a) Termination of this Agreement or the appointment of the Ninth Issuer
Cash Manager under this Agreement shall be without prejudice to the
liabilities of the Ninth Issuer and the Ninth Issuer Security Trustee
to the Ninth Issuer Cash Manager or vice versa incurred before the date
of such termination. The Ninth Issuer Cash Manager shall have no right
of set-off or any lien in respect of such amounts against amounts held
by it on behalf of the Ninth Issuer or the Ninth Issuer Security
Trustee.
(b) This Agreement shall terminate at such time as the Ninth Issuer Secured
Obligations have been fully discharged.
(c) On termination of the appointment of the Ninth Issuer Cash Manager
under the provisions of this Clause 12, the Ninth Issuer Cash Manager
shall be entitled to receive all fees and other monies accrued up to
(but excluding) the date of termination but shall not be entitled to
any other or further compensation. The Ninth Issuer shall pay such
monies so receivable by the Ninth Issuer Cash Manager in accordance
with the Ninth Issuer Pre-Enforcement Revenue Priority of Payments or,
as the case may be, the Ninth Issuer Post-Enforcement Priority of
Payments, on the dates on which they would otherwise have fallen due
hereunder. For the avoidance of doubt, such termination shall not
affect the Ninth Issuer Cash Manager's rights to receive payment of all
amounts (if any) due to it from the Ninth Issuer other than under this
Agreement.
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(d) Any provision of this Agreement which is stated to continue after
termination of the Agreement shall remain in full force and effect
notwithstanding termination.
13. FURTHER ASSURANCE
13.1 CO-OPERATION, ETC
The parties hereto agree that they will co-operate fully to do all such
further acts and things and execute any further documents as may be
necessary or desirable to give full effect to the arrangements
contemplated by this Agreement.
13.2 POWERS OF ATTORNEY
Without prejudice to the generality of Clause 13.1, the Ninth Issuer
and the Ninth Issuer Security Trustee shall upon request by the Ninth
Issuer Cash Manager forthwith give to the Ninth Issuer Cash Manager
such further powers of attorney or other written authorisations,
mandates or instruments as are necessary to enable the Ninth Issuer
Cash Manager to perform the Ninth Issuer Cash Management Services.
13.3 CHANGE OF NINTH ISSUER SECURITY TRUSTEE
In the event that there is any change in the identity of the Ninth
Issuer Security Trustee or an additional Ninth Issuer Security Trustee
is appointed in accordance with the Ninth Issuer Deed of Charge, the
Ninth Issuer Cash Manager shall execute such documents with any other
parties to this Agreement and take such actions as such new Ninth
Issuer Security Trustee may reasonably require for the purposes of
vesting in such new Ninth Issuer Security Trustee the rights of the
Ninth Issuer Security Trustee under this Agreement and under the Ninth
Issuer Deed of Charge and releasing the retiring Ninth Issuer Security
Trustee from further obligations thereunder and while any of the Ninth
Issuer Notes remains outstanding shall give notice thereof to the
Rating Agencies.
13.4 NO OBLIGATION ON NINTH ISSUER SECURITY TRUSTEE
Nothing herein contained shall impose any obligation or liability on
the Ninth Issuer Security Trustee to assume or perform any of the
obligations of the Ninth Issuer or the Ninth Issuer Cash Manager
hereunder or render it liable for any breach thereof.
14. MISCELLANEOUS
14.1 NO SET-OFF
The Ninth Issuer Cash Manager agrees that it will not:
(a) set-off or purport to set off any amount which either the
Ninth Issuer is or will become obliged to pay to it under this
Agreement against any amount from time to time standing to the
credit of or to be credited to the Ninth Issuer Bank Accounts;
or
(b) make or exercise any claims or demands, any rights of
counterclaim or any other equities against or withhold payment
of any and all sums of money which may at any time and from
time to time stand to the credit of the Ninth Issuer Bank
Accounts.
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14.2 NO PETITION
The Ninth Issuer Cash Manager agrees that for so long as any Ninth
Issuer Notes are outstanding it will not petition or commence
proceedings for the administration or winding-up of the Ninth Issuer or
participate in any such proceedings with regard thereto or file
documents with the court for the appointment of an administrator in
relation to the Ninth Issuer or serve a notice of intention to appoint
an administrator in relation to the Ninth Issuer.
14.3 NO RECOURSE
(a) In relation to all sums due and payable by the Ninth Issuer to the
Ninth Issuer Cash Manager, the Ninth Issuer Cash Manager agrees that it
shall have recourse only to sums paid to or received by (or on behalf
of) the Ninth Issuer pursuant to the provisions of the Ninth Issuer
Transaction Documents.
(b) For the avoidance of doubt, the Ninth Issuer Security Trustee shall not
be liable to pay any amounts due under Clauses 7 and 9, but without
prejudice to the obligations of the Ninth Issuer or any Receiver
appointed pursuant to the Ninth Issuer Deed of Charge in respect of
such amounts.
(c) Notwithstanding any other provisions of this Agreement, all obligations
to, and rights of, the Ninth Issuer Security Trustee under or in
connection with this Agreement (other than its obligations under Clause
15) shall automatically terminate upon the discharge in full of all
Ninth Issuer Secured Obligations, PROVIDED THAT this shall be without
prejudice to any claims in respect of such obligations and rights
arising on or prior to such date.
15. CONFIDENTIALITY
During the continuance of this Agreement or after its termination, each
of the Ninth Issuer, the Ninth Issuer Cash Manager and the Ninth Issuer
Security Trustee shall use its best endeavours not to disclose to any
person, firm or company whatsoever any information relating to the
business, finances or other matters of a confidential nature of any
other party hereto of which it may exclusively by virtue of being party
to the Transaction Documents have become possessed and shall use all
reasonable endeavours to prevent any such disclosure as aforesaid,
PROVIDED HOWEVER that the provisions of this Clause 15 shall not apply:
(a) to any information already known to the recipient otherwise
than as a result of entering into any of the Transaction
Documents;
(b) to any information subsequently received by the recipient
which it would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge
otherwise than as a result of the conduct of the recipient;
(d) to any extent that the recipient is required to disclose the
same pursuant to any law or order of any court or pursuant to
any direction, request or requirement (whether or not having
the force of law) of any central bank or any governmental or
other authority (including, without limitation, any official
bank examiners or regulators or stock exchange);
(e) to the extent that the recipient needs to disclose the same
for determining the existence of, or declaring, a Ninth Issuer
Note Event of Default, or a Ninth Issuer
14
Cash Manager Termination Event, the protection or enforcement
of any of its rights under any of the Ninth Issuer Transaction
Documents or in connection herewith or therewith or for the
purpose of discharging, in such manner as it thinks fit, its
duties under or in connection with such agreements in each
case to such persons as require to be informed of such
information for such purposes; or
(f) in relation to any information disclosed to the professional
advisers of the recipient or (in connection with a prospective
rating of any debt to be issued by the Ninth Issuer or any New
Issuer) to any credit rating agency or any prospective new
cash manager or Ninth Issuer Security Trustee.
16. NOTICES
Any notices to be given pursuant to this Agreement to any of the
parties hereto shall be sufficiently served if sent by prepaid first
class post, by hand or facsimile transmission and shall be deemed to be
given (in the case of facsimile transmission) when despatched, (where
delivered by hand) on the day of delivery if delivered before 5.00pm
(London time) on a Business Day or on the next Business Day if
delivered thereafter or on a day which is not a Business Day or (in the
case of first class post) when it would be received in the ordinary
course of the post and shall be sent:
(a) in the case of the Ninth Issuer Cash Manager, to Abbey
National plc at Abbey National House, 0 Xxxxxx Xxxxxx,
Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX (facsimile number (44) 20 7756
5627) for the attention of the Company Secretary with a copy
to Abbey National plc, c/o Abbey House (AAM 126), 000 Xxxxxxx
Xxxx Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile number (44) 1908
343 019) for the attention of the Securitisation Team, Retail
Credit Risk;
(b) in the case of the Ninth Issuer, to Xxxxxx Financing (No. 9)
PLC at Abbey Xxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx,
Xxxxxx, XX0 0XX (facsimile number (00) 00 0000 0000) for the
attention of the Company Secretary with a copy to Abbey
National plc c/o Abbey House (AAM 126), 000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx XX0 0XX (facsimile number (00) 0000 000 000) for
the attention of Securitisation Team, Retail Credit Risk; and
(c) in the case of the Ninth Issuer Security Trustee, to The Bank
of New York, 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(facsimile number (00) 00 0000 0000/6399) for the attention of
Global Structured Finance - Corporate Trust,
or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this Clause 16.
17. VARIATION AND WAIVER
No variation or waiver of this Agreement shall be effective unless it
is in writing and signed by (or by some person duly authorised by) each
of the parties. No single or partial exercise of, or failure or delay
in exercising, any right under this Agreement shall constitute a waiver
or preclude any other or further exercise of that or any other right.
18. NO PARTNERSHIP
It is hereby acknowledged and agreed by the parties that nothing in
this Agreement shall be construed as giving rise to any partnership
between any of the parties.
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19. ASSIGNMENT
19.1 ASSIGNMENT BY THE NINTH ISSUER
The Ninth Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of
each of the Ninth Issuer Security Trustee and the Ninth Issuer Cash
Manager, except that the Ninth Issuer may assign its respective rights
hereunder without such consent pursuant to the Ninth Issuer Deed of
Charge.
19.2 NO ASSIGNMENT BY NINTH ISSUER CASH MANAGER
The Ninth Issuer Cash Manager may not assign or transfer any of its
rights and obligations under this Agreement without the prior written
consent of the Ninth Issuer and the Ninth Issuer Security Trustee, such
consent not to be unreasonably withheld or delayed.
20. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Agreement do not intend that any term of this
Agreement should be enforced, by virtue of the Contracts (Rights of
Third Parties) Xxx 0000, by any person who is not a party to this
Agreement.
21. COUNTERPARTS
The Agreement may be executed manually or by facsimile, in one or more
counterparts and such counterparts, when taken together, shall
constitute one and the same document.
22. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed the day
and year first before written.
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SCHEDULE 1
THE CASH MANAGEMENT SERVICES
The Ninth Issuer Cash Manager shall:
(a) operate the Ninth Issuer Bank Accounts and the Ninth Issuer Collateral
Accounts and ensure that payments are made into and from such accounts
in accordance with this Agreement, the Ninth Issuer Deed of Charge, the
Ninth Issuer Bank Account Agreement and any other relevant Ninth Issuer
Transaction Document, PROVIDED HOWEVER THAT nothing herein shall
require the Ninth Issuer Cash Manager to make funds available to the
Ninth Issuer to enable such payments to be made other than as expressly
required by the provisions of this Agreement;
(b) keep records for all Taxation purposes (including, without limitation,
VAT);
(c) subject to any applicable law assist the Auditors of the Ninth Issuer
and provide such information to them as they may reasonably request for
the purpose of carrying out their duties as auditors;
(d) make all filings, give all notices and make all registrations and other
notifications required in the day-to-day operation of the business of
the Ninth Issuer or required to be given by the Ninth Issuer pursuant
to the Ninth Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Ninth Issuer under any
of the Ninth Issuer Transaction Documents, PROVIDED THAT such monies
are at the relevant time available to the Ninth Issuer and PROVIDED
FURTHER that nothing herein shall constitute a guarantee by the Ninth
Issuer Cash Manager of all or any of the obligations of the Ninth
Issuer under any of the Ninth Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Ninth
Issuer Corporate Services Provider under the Ninth Issuer Corporate
Services Agreement, keep general books of account and records of the
Ninth Issuer; provide accounting services, including reviewing receipts
and payments, supervising and assisting in the preparation of interim
statements and final accounts and supervising and assisting in the
preparation of Tax returns;
(g) without prejudice to the role of and in conjunction with the Ninth
Issuer Corporate Services Provider under the Ninth Issuer Corporate
Services Agreement, provide or procure the provision of company
secretarial and administration services to the Ninth Issuer including
the keeping of all registers and the making of all returns and filings
required by applicable law or by UK regulatory authorities, co-operate
in the convening of board and general meetings and provide registered
office facilities;
(h) on behalf of the Ninth Issuer, PROVIDED THAT such monies are at the
relevant time available to the Ninth Issuer, pay all the out-of-pocket
expenses of the Ninth Issuer, incurred by the Ninth Issuer Cash Manager
on behalf of the Ninth Issuer in the performance of the Ninth Issuer
Cash Manager's duties hereunder including without limitation:
(i) all Taxes which may be due or payable by the Ninth Issuer;
(ii) all necessary filing and other fees in compliance with
regulatory requirements;
(iii) all legal and audit fees and other professional advisory fees;
and
17
(iv) all communication expenses including postage, courier and
telephone charges;
(i) with the prior written consent of the Ninth Issuer Security Trustee,
the Ninth Issuer Cash Manager may invest monies standing from time to
time to the credit of the Ninth Issuer Bank Accounts (including, for
the avoidance of doubt, sums standing from time to time to the credit
of any of the Ninth Issuer Collateral Accounts) in Authorised
Investments, subject to the following provisions:
(i) any such Authorised Investment shall be made in the joint
names of the Ninth Issuer and the Ninth Issuer Security
Trustee;
(ii) any costs properly and reasonably incurred in making and
changing Authorised Investments will be reimbursed to the
Ninth Issuer Cash Manager and the Ninth Issuer Security
Trustee by the Ninth Issuer; and
(iii) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Ninth Issuer
Bank Account or Ninth Issuer Collateral Account from which
monies were withdrawn to make the relevant Authorised
Investment.
The Ninth Issuer Security Trustee and the Ninth Issuer Cash Manager
shall not be responsible (save where any loss results from the Ninth
Issuer Security Trustee's or the Ninth Issuer Cash Manager's own fraud,
wilful default or negligence or that of its officers or employees) for
any loss occasioned by reason of any such Authorised Investments
whether by depreciation in value or otherwise provided that such
Authorised Investments were made in accordance with the above
provisions;
(j) if necessary, perform all currency conversions free of charge, cost or
expense at the relevant exchange rate;
(k) if necessary, perform all interest rate conversions (whether it be a
conversion from a floating rate of interest to a fixed rate of
interest, or vice versa) free of charge, cost or expense at the
relevant interest swap rate;
(l) for the purposes of any calculations referred to in sub-paragraphs (j)
and (k) above, all percentages resulting from such calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (e.g. 9.876541% (or 0.09876541) being rounded down to
9.87654% (or 0.0987654)) and any currency amounts used in or resulting
from such calculations will be rounded in accordance with the relevant
market practice;
(m) make all returns and filings required to be made by the Ninth Issuer
and provide or procure the provision of company secretarial and
administration services to the Ninth Issuer; and
(n) arrange payment of all fees to the London Stock Exchange plc or, as
applicable, the UK Listing Authority or, as applicable, the Financial
Services Authority.
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SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. DETERMINATION
(a) On each Ninth Issuer Note Determination Date, the Ninth Issuer Cash
Manager shall determine each of the following in accordance with this
paragraph 1:
(i) the amount of any Ninth Issuer Principal Receipts and Ninth
Issuer Revenue Receipts available as at the following Interest
Payment Date; and
(ii) the Principal Amount Outstanding of the Ninth Issuer Notes,
the Pool Factor, and the Note Principal Payment of the Ninth
Issuer Notes in accordance with the Conditions.
(b) The Ninth Issuer Cash Manager may make all the determinations referred
to in paragraph 1(a) on the basis of any reasonable and proper
assumptions as the Ninth Issuer Cash Manager considers appropriate
(including without limitation as to the amount of any payments to be
made under paragraph 3 below during the period from and including the
Ninth Issuer Note Determination Date to but excluding the next Interest
Payment Date).
(c) The Ninth Issuer Cash Manager shall notify the Ninth Issuer and the
Ninth Issuer Security Trustee on request of any such other assumptions
and shall take account of any representations made by the Ninth Issuer
and the Ninth Issuer Security Trustee (as the case may be) in relation
thereto.
(d) Each determination made in accordance with this paragraph 1 shall (in
the absence of bad faith, wilful default, negligence and manifest or
demonstrable error) be final and binding on all persons.
2. NOTIFICATION OF DETERMINATIONS
The Ninth Issuer Cash Manager shall procure that the determinations and
notifications required to be made pursuant to Condition 5(C) of the
Conditions are made.
3. PRIORITY OF PAYMENTS FOR NINTH ISSUER REVENUE RECEIPTS
Ninth Issuer Revenue Receipts will be applied, as applicable:
(i) on each Interest Payment Date; or
(ii) on each day when due in respect of amounts due to third
parties pursuant to paragraph (b) below or amounts due to the
Ninth Issuer Account Banks under the Ninth Issuer Bank Account
Agreement pursuant to paragraph (c) below,
in each case until enforcement of the Ninth Issuer Security pursuant to
the Ninth Issuer Deed of Charge or until such time as there are no
Ninth Issuer Secured Obligations outstanding, in making such payments
and provisions in the following order of priority (in each case only if
and to the extent that payments or provisions of a higher priority have
been made in full) (the NINTH ISSUER PRE-ENFORCEMENT REVENUE PRIORITY
OF PAYMENTS):
(a) firstly, in or towards satisfaction pro rata and pari passu
according to the respective amounts thereof of:
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(i) any remuneration then due and payable to the Ninth
Issuer Security Trustee together with interest and
any amount in respect of VAT thereon as provided
therein and any amounts then due and payable or to
become due and payable during the immediately
following Interest Period to the Ninth Issuer
Security Trustee under the Ninth Issuer Deed of
Charge;
(ii) any remuneration then due and payable to the Note
Trustee together with interest and any amount in
respect of VAT thereon as provided therein and any
amounts then due and payable or to become due and
payable during the immediately following Interest
Period to the Note Trustee under the provisions of
the Ninth Issuer Trust Deed; and
(iii) any remuneration then due and payable to the Agent
Bank, the Paying Agents, the Registrar and the
Transfer Agent together with interest and any amount
in respect of VAT thereon as provided therein and any
costs, charges, liabilities and expenses then due and
payable or to become due and payable during the
immediately following Interest Period to them under
the provisions of the Ninth Issuer Paying Agent and
Agent Bank Agreement;
(b) secondly, to pay any amounts due and payable by the Ninth
Issuer to third party creditors and incurred without breach by
the Ninth Issuer of the Transaction Documents to which it is a
party (and for which payment has not been provided for
elsewhere) and to provide for any such amounts expected to
become due and payable by the Ninth Issuer during the
immediately following Interest Period and to pay or discharge
any liability of the Ninth Issuer for corporation tax on any
chargeable income, profit or gain of the Ninth Issuer;
(c) thirdly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) any remuneration then due and payable to the Ninth
Issuer Cash Manager together with interest and any
amount in respect of VAT thereon as provided therein
and any costs, charges, liabilities and expenses then
due and payable or to become due and payable during
the immediately following Interest Period to the
Ninth Issuer Cash Manager under the provisions of the
Ninth Issuer Cash Management Agreement;
(ii) any remuneration then due and payable to the Ninth
Issuer Corporate Services Provider together with
interest and any amount in respect of VAT thereon as
provided therein and any costs, charges, liabilities
and expenses then due and payable or to become due
and payable during the immediately following Interest
Period to the Ninth Issuer Corporate Services
Provider under the Ninth Issuer Corporate Services
Agreement; and
(iii) any remuneration then due and payable to the Ninth
Issuer Account Banks together with interest and any
amount in respect of VAT thereon as provided therein
and any costs, charges, liabilities and expenses then
due and payable or to become due and payable during
the immediately following Interest Period to the
Ninth Issuer Account Banks under the Ninth Issuer
Bank Account Agreement;
(d) fourthly, to pay in no order of priority between them and pro
rata according to the respective amounts thereof of:
20
(i) those amounts due and payable by the Ninth Issuer to
the Series 1 Class A Dollar Currency Swap Provider
pursuant to the Series 1 Class A Dollar Currency Swap
Agreement (except for any termination payment due and
payable by the Ninth Issuer to the Series 1 Class A
Dollar Currency Swap Provider following a Ninth
Issuer Swap Provider Default or a Ninth Issuer
Downgrade Termination Event), and from the proceeds
received from the Series 1 Class A Dollar Currency
Swap Provider, interest due and payable on the Series
1 Class A Ninth Issuer Notes;
(ii) those amounts due and payable by the Ninth Issuer to
the Series 2 Class A Dollar Currency Swap Provider
pursuant to the Series 2 Class A Dollar Currency Swap
Agreement (except for any termination payment due and
payable by the Ninth Issuer to the Series 2 Class A
Dollar Currency Swap Provider following a Ninth
Issuer Swap Provider Default or a Ninth Issuer
Downgrade Termination Event), and from the proceeds
received from the Series 2 Class A Dollar Currency
Swap Provider, interest due and payable on the Series
2 Class A Ninth Issuer Notes;
(iii) those amounts due and payable by the Ninth Issuer to
the Series 3 Class A1 Euro Currency Swap Provider
pursuant to the Series 3 Class A1 Euro Currency Swap
Agreement (except for any termination payment due and
payable by the Ninth Issuer to the Series 3 Class A1
Euro Currency Swap Provider following a Ninth Issuer
Swap Provider Default or a Ninth Issuer Downgrade
Termination Event) and from the proceeds received
from the Series 3 Class A1 Euro Currency Swap
Provider interest due and payable by the Ninth Issuer
on the Series 3 Class A1 Ninth Issuer Notes; and
(iv) interest due and payable by the Ninth Issuer on the
Series 3 Class A2 Ninth Issuer Notes;
(v) interest due and payable by the Ninth Issuer on the
Series 4 Class A Ninth Issuer Notes;
(e) fifthly, to pay pro rata and pari passu according to the
respective amounts thereof of:
(i) any termination payments due and payable by the Ninth
Issuer to the Series 1 Class A Dollar Currency Swap
Provider under the Series 1 Class A Dollar Currency
Swap Agreement, following the occurrence of a Ninth
Issuer Swap Provider Default or a Ninth Issuer
Downgrade Termination Event;
(ii) any termination payments due and payable by the Ninth
Issuer to the Series 2 Class A Dollar Currency Swap
Provider under the Series 2 Class A Dollar Currency
Swap Agreement, following the occurrence of a Ninth
Issuer Swap Provider Default or a Ninth Issuer
Downgrade Termination Event; and
(iii) any termination payments due and payable by the Ninth
Issuer to the Series 3 Class A1 Euro Currency Swap
Provider under the Series 3 Class A1 Euro Currency
Swap Agreement, following the occurrence of a Ninth
Issuer Swap Provider Default or a Ninth Issuer
Downgrade Termination Event;
(f) sixthly, to pay the Ninth Issuer an amount equal to 0.01 per
cent. of the interest received on the Ninth Issuer Term
Advances to be retained by the Ninth Issuer as profit; and
21
(g) seventhly, to pay to shareholders of the Ninth Issuer any
dividend declared by the Ninth Issuer.
4. PRIORITY OF PAYMENTS FOR NINTH ISSUER PRINCIPAL RECEIPTS
Subject to Condition 5 of the Ninth Issuer Notes, until enforcement of
the Ninth Issuer Security pursuant to the Ninth Issuer Deed of Charge
or until such time as there are no Ninth Issuer Notes outstanding,
Ninth Issuer Principal Receipts will be applied to repay the Ninth
Issuer Notes as follows:
(i) the Series 1 Class A Ninth Issuer Notes shall be redeemed on
the Series 1 Class A Interest Payment Date falling in December
2006 in an amount equal to the amount, if any, repaid in
respect of the Ninth Issuer Series 1 Term AAA Advance,
converted into Dollars at the relevant Dollar Currency Swap
Rate;
(ii) the Series 2 Class A Ninth Issuer Notes shall be redeemed on
the Interest Payment Date falling in October 2008 in an amount
equal to the amount, if any, repaid in respect of the Ninth
Issuer Series 2 Term AAA Advance, converted into Dollars at
the relevant Dollar Currency Swap Rate;
(iii) the Series 3 Class A1 Ninth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of the
Ninth Issuer Series 3A1 Term AAA Advance, converted into Euros
at the Euro Currency Swap Rate;
(iv) the Series 3 Class A2 Ninth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of the
Ninth Issuer Series 3A2 Term AAA Advance; and
(v) the Series 4 Class A Ninth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of the
Ninth Issuer Series 4 Term AAA Advance.
5. RECORDS
In addition, the Ninth Issuer Cash Manager shall ensure that a separate
record is kept of any amount received from the Dollar Currency Swap
Providers and the Euro Currency Swap Provider and pursuant to,
respectively, the Dollar Currency Swap Agreements and the Euro Currency
Swap Agreement.
22
SCHEDULE 3
FORM OF NINTH ISSUER QUARTERLY REPORT
XXXXXX FINANCING (NO. 9) PLC
PROFIT & LOSS ACCOUNT
PERIOD ENDED [O]
THIS PRIOR QUARTER
QUARTER
(pound) (pound)
----------------------------
Interest Receivable - Inter-Company Loan 0 0
Interest Receivable - Cash Deposits 0 0
-------------
Interest Payable - Notes 0 0
Interest Payable 0 0
----------------------------
0 0
----------------------------
Net Operating Income 0 0
Other Income 0 0
Insurance Commission 0 0
Operating Expenses 0 0
----------------------------
Profit/loss on ordinary activities before tax 0 0
Taxation 0 0
----------------------------
Profit/loss on ordinary activities after tax 0 0
Dividend 0 0
Retained profit brought forward 0 0
----------------------------
Retained profit for the year 0 0
============================
23
XXXXXX FINANCING (NO. 9) PLC
BALANCE SHEET
PERIOD ENDED [O]
(pound) (pound)
FIXED ASSET INVESTMENTS
Inter Company Lending 0
CURRENT ASSETS
Interest Receivable 0
Other debtors 0
Cash at Bank 0
-------------
0
-------------
CREDITORS: AMOUNTS FALLING DUE WITHIN ONE YEAR
Accruals 0
Interest Payable Accrual 0
Taxation 0
-------------
0
-------------
Net current assets 0
CREDITORS: AMOUNTS FALLING DUE AFTER ONE YEAR
Amount due to Noteholders 0
---------------
Total Assets less current liabilities 0
===============
Share Capital 0
Reserves 0
---------------
0
===============
24
XXXXXX FINANCING (NO. 9) PLC
NOTES OUTSTANDING
PERIOD ENDED [O]
ISIN / CUSIP Number Currency Reference Rate
------------------------------------------------------------------------------------------------------------------------------------
SERIES 1 CLASS A US43638VAA98 US$ 1 month USD Libor
------------------------------------------------------------------------------------------------------------------------------------
SERIES 2 CLASS A US43638VAB71 US$ 3 month USD Libor
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A1 US43638VAC54 EUR 3 month Euribor
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A2 US43638VAD38 GRP 3 month sterling Libor
------------------------------------------------------------------------------------------------------------------------------------
SERIES 4 CLASS A US43638VAE11 GRP 3 month sterling Libor
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Step Up Date Expected Repayment Initial Margin Step up Margin
Date
------------------------------------------------------------------------------------------------------------------------------------
SERIES 1 CLASS A December 2005 December 2005 -3 N/A
------------------------------------------------------------------------------------------------------------------------------------
SERIES 2 CLASS A October 2010 October 2008 6 12
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A1 October 2010 April 2010 10 20
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A2 October 2010 April 2010 9 18
------------------------------------------------------------------------------------------------------------------------------------
SERIES 4 CLASS A October 2010 July 2010 9 18
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Payment Frequency Next Payment date Xxxxx'x S&P Fitch
Ratings
------------------------------------------------------------------------------------------------------------------------------------
SERIES 1 CLASS A Monthly 17-Jan-2006 P-1 A-1+ F1+
------------------------------------------------------------------------------------------------------------------------------------
SERIES 2 CLASS A Quarterly 18-Apr-2006 Aaa AAA AAA
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A1 Quarterly 18-Apr-2006 Aaa AAA AAA
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A2 Quarterly 18-Apr-2006 Aaa AAA AAA
------------------------------------------------------------------------------------------------------------------------------------
SERIES 4 CLASS A Quarterly 18-Apr-2006 Aaa AAA AAA
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Initial note Previous Principal Redemptions Current Principal
balance
------------------------------------------------------------------------------------------------------------------------------------
SERIES 1 CLASS A $1,740,000,000 $1,740,000,000 $0 $1,740,000,000
------------------------------------------------------------------------------------------------------------------------------------
SERIES 2 CLASS A $2,175,000,000 $2,175,000,000 $0 $2,175,000,000
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A1 (euro)740,000,000 (euro)740,000,000 (euro)0 (euro)740,000,000
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A2 (pound)400,000,000 (pound)400,000,000 (pound)0 (pound)400,000,000
------------------------------------------------------------------------------------------------------------------------------------
SERIES 4 CLASS A (pound)600,000,000 (pound)600,000,000 (pound)0 (pound)600,000,000
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Currency Swap Current Rating Rating Trigger Comments
Counterparty
------------------------------------------------------------------------------------------------------------------------------------
Moodys/S&P/Fitch Moodys/S&P/Fitch
------------------------------------------------------------------------------------------------------------------------------------
SERIES 1 CLASS A Deutsche Bank below A1 or P-1/
A-1+/F1
------------------------------------------------------------------------------------------------------------------------------------
SERIES 2 CLASS A Deutsche Bank below A1 or P-1/
A-1+/F1
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A1 Deutsche Bank below A1 or P-1/
A-1+/F1
------------------------------------------------------------------------------------------------------------------------------------
SERIES 3 CLASS A2
------------------------------------------------------------------------------------------------------------------------------------
SERIES 4 CLASS A
------------------------------------------------------------------------------------------------------------------------------------
25
SIGNATORIES
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
XXXXXX FINANCING (NO. 9) PLC )
SIGNED for and on behalf of )
THE BANK OF NEW YORK, LONDON BRANCH )
26
