Exhibit 4.9
DRAFT
EIGHTH ISSUER CASH MANAGEMENT AGREEMENT
DATED [7th April, 2004]
ABBEY NATIONAL PLC
(as Eighth Issuer Cash Manager)
and
▇▇▇▇▇▇ FINANCING (NO. 8) PLC
(the Eighth Issuer)
and
THE BANK OF NEW YORK
(the Eighth Issuer Security Trustee)
▇▇▇▇▇ & OVERY
London
CONTENTS
Clause Page
1. Definitions and Interpretation...........................................1
2. Appointment of Eighth Issuer Cash Manager................................2
3. The Eighth Issuer Cash Management Services...............................2
4. Payments, Accounts, Ledgers..............................................3
5. Payments under Eighth Issuer Currency Swaps and Termination of
Eighth Issuer Currency Swaps..........................................5
6. No Liability.............................................................6
7. Costs and Expenses.......................................................6
8. Information..............................................................7
9. Remuneration.............................................................9
10. Covenants of Eighth Issuer Cash Manager..................................9
11. Eighth Issuer Cash Management Services Non-Exclusive....................10
12. Termination.............................................................10
13. Further Assurance.......................................................12
14. Miscellaneous...........................................................13
15. Confidentiality.........................................................14
16. Notices.................................................................14
17. Variation and Waiver....................................................15
18. No Partnership..........................................................15
19. Assignment..............................................................15
20. Exclusion of Third Party Rights.........................................15
21. Counterparts............................................................16
22. Governing Law...........................................................16
Schedule
1. The Cash Management Services............................................17
2. Cash Management and Maintenance of Ledgers..............................19
3. Form of Eighth Issuer Quarterly Report..................................26
Signatories...................................................................29
THIS EIGHTH ISSUER CASH MANAGEMENT AGREEMENT is made on[7th April, 2004]
BETWEEN:
(1) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House, ▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as cash
manager (the Eighth 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) ▇▇▇▇▇▇ FINANCING (NO. 8) PLC (registered number 4992222) 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 Eighth Issuer); and
(3) THE BANK OF NEW YORK whose principal office is at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as trustee (the Eighth Issuer Security
Trustee which expression shall include such company and all other persons
or companies for the time being acting as the trustee or trustees under
the Eighth Issuer Deed of Charge).
WHEREAS:
(A) On the Eighth Issuer Closing Date the Eighth Issuer will issue the Eighth
Issuer Notes. From the proceeds of the issue of the Eighth Issuer Notes,
the Eighth Issuer shall make the Eighth Issuer Term Advances to Funding.
(B) The Eighth Issuer Cash Manager is willing to provide cash management
services to the Eighth Issuer and the Eighth 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 Eighth Issuer Master Definitions and Construction Schedule, both
signed for the purposes of identification by ▇▇▇▇▇ & Overy and ▇▇▇▇▇▇▇▇▇
and May on [7th April, 2004] (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 Eighth Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule and
Clause 2 of the Eighth Issuer Master Definitions and Construction
Schedule. In the event of a conflict between the Amended and Restated
Master Definitions and Construction Schedule and the Eighth Issuer Master
Definitions and Construction Schedule, the Eighth Issuer Master
Definitions and Construction Schedule shall prevail.
1
2. APPOINTMENT OF EIGHTH ISSUER CASH MANAGER
2.1 Appointment
Until termination pursuant to Clause 12, the Eighth Issuer and the Eighth
Issuer Security Trustee (according to their respective estates and
interests) each hereby appoints the Eighth Issuer Cash Manager as its
lawful agent to provide the Eighth Issuer Cash Management Services set out
in this Agreement, including in relation to the Eighth Issuer Notes to be
issued by the Eighth Issuer. The Eighth 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 Eighth 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 Eighth Issuer Notes
The appointment pursuant to Clause 2.1 is conditional upon the issue of
the Eighth Issuer Notes and shall take effect upon and from the Eighth
Issuer Closing Date automatically without any further action on the part
of any person PROVIDED THAT if the issue of the Eighth Issuer Notes has
not occurred by [7th April, 2004], or such later date as the Eighth Issuer
and the Joint Lead Managers may agree, this Agreement shall cease to be of
further effect.
3. THE EIGHTH ISSUER CASH MANAGEMENT SERVICES
3.1 General
The Eighth Issuer Cash Manager shall provide the services set out in this
Agreement (including, without limitation, the Schedules) (the Eighth
Issuer Cash Management Services).
3.2 Approvals and authorisations
The Eighth Issuer Cash Manager shall maintain, or procure the maintenance
of, the approvals, authorisations, consents and licences required in
connection with the business of the Eighth Issuer and shall prepare and
submit, or procure the preparation and submission of, on behalf of the
Eighth Issuer all necessary applications and requests for any further
approvals, authorisations, consents or licences which may be required in
connection with the business of the Eighth Issuer and shall, so far as it
reasonably can do so, perform the Eighth Issuer Cash Management Services
in such a way as not to prejudice the continuation of any such approvals,
authorisations, consents or licences.
3.3 Compliance with Transaction Documents, etc.
The Eighth Issuer Cash Management Services shall include procuring (so far
as the Eighth Issuer Cash Manager, using its reasonable endeavours, is
able so to do) compliance by the Eighth Issuer with all applicable legal
requirements and with the terms of the Eighth Issuer Transaction
Documents, PROVIDED ALWAYS THAT the Eighth Issuer Cash Manager shall not
lend or provide any sum to the Eighth Issuer and that the Eighth Issuer
Cash Manager
2
shall have no liability whatsoever to the Eighth Issuer, the Eighth Issuer
Security Trustee or any other person for any failure by the Eighth Issuer
to make any payment due by any of them under any of the Eighth Issuer
Transaction Documents (other than to the extent arising from any failure
by the Eighth Issuer Cash Manager to perform any of its obligations under
any of the Transaction Documents).
3.4 Liability of Eighth Issuer Cash Manager
(a) The Eighth Issuer Cash Manager shall indemnify each of the Eighth Issuer
and the Eighth Issuer Security Trustee on demand on an after Tax basis for
any loss, liability, claim, expense or damage suffered or incurred by it
in respect of the negligence, bad faith or wilful default of the Eighth
Issuer Cash Manager in carrying out its functions as Eighth Issuer Cash
Manager under, or as a result of a breach by the Eighth Issuer Cash
Manager of, the terms and provisions of this Agreement or such other
Transaction Documents to which the Eighth Issuer Cash Manager is a party
(in its capacity as such) in relation to such functions.
(b) For the avoidance of doubt, the Eighth Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or damage
suffered or incurred by the Eighth Issuer or the Eighth Issuer Security
Trustee and/or any other person as a result of the proper performance of
the Eighth Issuer Cash Management Services by the Eighth Issuer Cash
Manager save to the extent that such loss, liability, claim, expense or
damage is suffered or incurred as a result of any negligence, bad faith or
wilful default of the Eighth Issuer Cash Manager under, or as a result of
a breach by the Eighth Issuer Cash Manager of, the terms and provisions of
this Agreement or any of the other Transaction Documents to which the
Eighth Issuer Cash Manager is a party (in its capacity as such) in
relation to such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 Eighth Issuer Bank Account
(a) The Eighth Issuer Cash Manager hereby confirms that the Eighth Issuer
Transaction Accounts have been established on or before the date hereof
and that mandates in the agreed form will apply thereto at the Eighth
Issuer Closing Date. The Eighth Issuer Cash Manager undertakes (to the
extent to which the same is within its control in its capacity as Eighth
Issuer Cash Manager) that at the Eighth Issuer Closing Date the Eighth
Issuer Transaction Accounts will be operative and that the Eighth Issuer
Cash Manager will not knowingly create or permit to subsist any Security
Interest in relation to the Eighth Issuer Transaction Accounts other than
as created under or permitted pursuant to the Eighth Issuer Deed of
Charge.
(b) The Eighth Issuer Cash Manager shall procure that the following amounts
are paid into the Eighth Issuer Transaction Accounts:
(i) all amounts of interest paid on the Eighth Issuer Term Advances;
(ii) all repayments of principal on the Eighth Issuer Term Advances;
(iii) all amounts received by the Eighth Issuer pursuant to the Dollar
Currency Swap Agreements and the Euro Currency Swap Agreements; and
(iv) any other amounts whatsoever received by or on behalf of the Eighth
Issuer after the Eighth Issuer Closing Date,
and the Eighth Issuer Cash Manager shall procure that all interest earned
on the Eighth Issuer Transaction Accounts and all investment proceeds from
Authorised Investments purchased
3
from amounts standing to the credit of the Eighth Issuer Bank Accounts are
credited to such account. All amounts received by the Eighth Issuer
denominated (i) in Sterling shall be paid into the Eighth Issuer Sterling
Account; (ii) in Dollars shall be paid into the Eighth Issuer Dollar
Account; and (iii) in Euro shall be paid into the Eighth Issuer Euro
Account.
(c) Each of the payments into the Eighth Issuer Transaction Accounts referred
to in Clause 4.1(b) shall be made forthwith upon receipt by the Eighth
Issuer or the Eighth Issuer Cash Manager of the amount in question.
(d) For the avoidance of doubt, as soon as reasonably practicable after
becoming aware of the same, the Eighth Issuer Cash Manager may, and shall,
withdraw Cash from the Eighth Issuer Transaction 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 Eighth Issuer Cash Manager shall promptly notify each of the Eighth
Issuer and the Eighth Issuer Security Trustee of any additional account
which supplements or replaces any account specifically referred to in the
definition of the "Eighth Issuer Transaction Accounts" in the Eighth
Issuer Master Definitions and Construction Schedule.
(f) Each of the Eighth Issuer Cash Manager and the Eighth Issuer undertakes
that, so far as it is able to procure the same, the Eighth Issuer
Transaction Accounts and all instructions and mandates in relation thereto
will continue to be operative and will not, save as permitted pursuant to
the Eighth Issuer Bank Account Agreement, be changed without prior written
consent of the Eighth Issuer Security Trustee (such consent not to be
unreasonably withheld or delayed). For the avoidance of doubt, the Eighth
Issuer Cash Manager may change the authorised signatories in respect of
any instructions or mandates, without the prior written consent of the
Eighth Issuer Security Trustee, in accordance with the terms of the Eighth
Issuer Bank Account Agreement.
(g) (i) Any and all amounts of collateral provided to the Eighth Issuer by
any of the Eighth Issuer Swap Providers will be placed in the
[Eighth] Issuer Collateral Account;
(ii) for the avoidance of doubt, references in this Agreement to amounts
received from any of the Eighth Issuer Swap Providers under any of
the Eighth Issuer Swap Agreements will, save as provided in Clause
4.1(g)(iii) below, exclude any and all amounts of collateral
provided to the Eighth Issuer by any Eighth Issuer Swap Provider;
and
(iii) any and all amounts standing to the credit of the [Eighth] Issuer
Collateral Account shall not be available to the Eighth Issuer Cash
Manager for application in accordance with any of the Eighth Issuer
Priority of Payments unless, and subject always to Clause 6.5
(Collateral provided to the Eighth Issuer by the Eighth Issuer Swap
Providers pursuant to the Eighth Issuer Swap Agreements) of the
Eighth Issuer Deed of Charge, there is an early termination of the
relevant Eighth Issuer Swap Agreement and such funds are not going
to be applied by the Eighth Issuer in or towards the costs of
entering into a replacement swap agreement. Following such an event,
the value of the relevant collateral in the [Eighth] Issuer
Collateral Account will be applied against an amount equal to the
termination amount that would have been payable by the relevant
Eigth Issuer Swap Provider had such collateral not been provided and
such funds will be available to be treated as a termination payment
under the relevant Eighth Issuer Swap Agreement and will be
available for application by the Eighth Issuer Cash Manager in
accordance with the relevant Eighth Issuer Post-Enforcement Priority
of Payments.
4
4.2 Withdrawals
(a) The Eighth Issuer Cash Manager may make withdrawals on behalf of the
Eighth Issuer from the Eighth Issuer Transaction Accounts, but only until
receipt of a copy of an Eighth Issuer Note Enforcement Notice served by
the Eighth Issuer Security Trustee on the Eighth Issuer, as permitted by
this Agreement but shall not in carrying out its functions as Eighth
Issuer Cash Manager under this Agreement otherwise make withdrawals from
the Eighth Issuer Transaction Accounts.
(b) Upon receipt of such a Eighth Issuer Note Enforcement Notice, no amount
shall be withdrawn from the Eighth Issuer Transaction Accounts by the
Eighth Issuer Cash Manager without the prior written consent of the Eighth
Issuer Security Trustee.
4.3 Cash Management
In administering the Eighth Issuer Transaction Accounts on behalf of the
Eighth Issuer and the Eighth Issuer Security Trustee, the Eighth Issuer
Cash Manager shall comply with the provisions of Schedule 2 prior to
receipt by the Eighth Issuer Cash Manager of a copy of any Eighth Issuer
Note Enforcement Notice served on the Eighth Issuer. Following service of
a Eighth Issuer Note Enforcement Notice, the Eighth Issuer Security
Trustee or any Receiver appointed by the Eighth Issuer Security Trustee
will administer the Eighth Issuer Transaction Accounts in accordance with
the terms of the Eighth Issuer Deed of Charge.
5. PAYMENTS UNDER EIGHTH ISSUER CURRENCY SWAPS AND TERMINATION OF EIGHTH
ISSUER CURRENCY SWAPS
5.1 Subject to the order of priorities of payment set out in this Eighth
Issuer Cash Management Agreement or, as the case may be, the Eighth Issuer
Deed of Charge, on each Interest Payment Date, the Eighth Issuer, or the
Eighth Issuer Cash Manager on its behalf, will pay amounts received in
respect of the Eighth Issuer Series 1 Term Advances (after making payments
ranking higher in the order or 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 relevant classes of Series 1 Eighth Issuer Notes in accordance with
the Eighth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Eighth Issuer Post-Enforcement Priority of Payments.
5.2 Subject to the order or priorities of payment set out in this Eighth
Issuer Cash Management Agreement or, as the case may be, the Eighth Issuer
Deed of Charge, on each Interest Payment Date, the Eighth Issuer, or the
Eighth Issuer Cash Manager on its behalf, will pay amounts received in
respect of the Eighth Issuer Series 2 Term Advances (after making payments
ranking higher in the order or 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 relevant classes of Series 2 Eighth Issuer Notes in accordance with
the Eighth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Eighth Issuer Post-Enforcement Priority of Payments.
5.3 Subject to the order of priorities of payment set out in this Eighth
Issuer Cash Management Agreement or, as the case may be, the Eighth Issuer
Deed of Charge, on each Interest Payment Date, the Eighth Issuer, or the
Eighth Issuer Cash Manager on its behalf, will pay amounts received in
respect of the Eighth Issuer Series 4A2 Term AAA Advance (after making
payments ranking higher in the order or priority of payments) to the
relevant Dollar Currency Swap Provider. Amounts received from the relevant
Dollar Currency Swap
5
Provider will be applied to pay amounts due to the holders of the Series 4
Class A2 Eighth Issuer Notes in accordance with the Eighth Issuer
Pre-Enforcement Priority of Payments or, as the case may be, the Eighth
Issuer Post-Enforcement Priority of Payments.
5.4 Subject to the order of priorities of payment set out in this Eighth
Issuer Cash Management Agreement or, as the case may be, the Eighth Issuer
Deed of Charge, on each Interest Payment Date, the Eighth Issuer, or the
Eighth Issuer Cash Manager on its behalf, will pay amounts received in
respect of the Eighth Issuer Series 3 Term Advances (after making payments
ranking highter in the order of priority of payments) to the relevant Euro
Currency Swap Provider. Amounts received from the relevant Euro Currency
Swap will be applied to pay amounts due to the holders of the relevant
classes of Series 3 Eighth Issuer Notes in accordance with the Eighth
Issuer Pre-Enforcement Priority of Payments or, as the case may be, the
Eighth Issuer Post-Enforcement Priority of Payments.
5.5 If on or prior to the date of the earlier of (i) repayment in full of the
Eighth Issuer Notes or (ii) the service of an Eighth Issuer Note
Enforcement Notice, any of the Dollar Currency Swaps or Euro Currency
Swaps is terminated, the Eighth Issuer Cash Manager (on behalf of the
Eighth Issuer and the Eighth Issuer Security Trustee) shall purchase a
replacement hedge in respect of the relevant class of Eighth Issuer Notes,
against fluctuations in, as appropriate, (a) the relevant currency swap
rate between Dollars and Sterling or the possible variance between LIBOR
for three-month Sterling deposits and (i) LIBOR for one-month Dollar
deposits in relation to the Series 1 Class A Eighth Issuer Notes and/or
(ii) LIBOR for three-month Dollar deposits in relation to the Series 1
Class B Eighth Issuer Notes, the Series 1 Class C Eighth Issuer Notes, the
Series 2 Eighth Issuer Notes, and the Series 4 Class A2 Eighth Issuer
Notes or (b) the relevant currency swap rate between Euro and Sterling or
the possible variance between LIBOR for three-month Sterling deposits and
EURIBOR for three-month Euro deposits in relation to the Series 3 Eighth
Issuer Notes, and, in each case, on terms acceptable to the Rating
Agencies and the Eighth Issuer and the Eighth Issuer Security Trustee and
with a swap provider whom the Rating Agencies have previously confirmed in
writing to the Eighth Issuer and the Eighth Issuer Security Trustee will
not cause the then current ratings of the Eighth Issuer Notes to be
downgraded. The Eighth Issuer may apply any early termination payment
received from the relevant Dollar Currency Swap Provider or Euro Currency
Swap Provider, for such purpose.
5.6 If the Eighth Issuer receives a Refund Payment (as defined in Eighth
Issuer Revenue Receipts) then the Eighth Issuer, or the Eighth Issuer Cash
Manager on its behalf, will pay over an amount equal to such Refund
Payment to the relevant Eighth Issuer Swap Provider upon receipt.
6. NO LIABILITY
Save as otherwise provided in this Agreement, the Eighth Issuer Cash
Manager shall have no liability for the obligations of either the Eighth
Issuer Security Trustee or the Eighth Issuer under any of the Transaction
Documents or otherwise and nothing herein shall constitute a guarantee, or
similar obligation, by the Eighth Issuer Cash Manager of either Funding,
the Eighth Issuer Security Trustee or the Eighth Issuer in respect of any
of them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Eighth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Eighth Issuer
Post-Enforcement Priority of Payments the Eighth Issuer will on each
Interest Payment Date reimburse the Eighth Issuer Cash Manager for all
out-of-pocket costs, expenses and charges (together with any amounts in
respect of Irrecoverable
6
VAT due thereon) properly incurred by the Eighth Issuer Cash Manager in
the performance of the Eighth Issuer Cash Management Services including
any such costs, expenses or charges not reimbursed to the Eighth Issuer
Cash Manager on any previous Interest Payment Date and the Eighth Issuer
Cash Manager shall supply the Eighth Issuer with an appropriate VAT
invoice issued by the Eighth Issuer Cash Manager or, if the Eighth Issuer
Cash Manager has treated the relevant cost, expense or charge as a
disbursement for VAT purposes, by the person making the supply.
8. INFORMATION
8.1 Use of I.T. systems
(a) The Eighth Issuer Cash Manager represents and warrants that at the date
hereof in respect of the software which is to be used by the Eighth Issuer
Cash Manager in providing the Eighth Issuer Cash Management Services it
has in place all necessary licences and/or consents from the respective
licensor or licensors (if any) to use such software.
(b) The Eighth Issuer Cash Manager undertakes that it shall for the duration
of this Agreement, use reasonable endeavours to:
(i) ensure that the licences and/or consents referred to in paragraph
(a) are maintained in full force and effect; and
(ii) except in so far as it would breach any other of its legal
obligations, grant to any person to whom it may sub-contract or
delegate the performance of all or any of its powers and obligations
under this Agreement and/or to such person as the Eighth Issuer
elects as a substitute cash manager in accordance with the terms of
this Agreement a licence to use any proprietary software together
with any updates which may be made thereto from time to time.
(c) The Eighth Issuer Cash Manager shall use reasonable endeavours to maintain
in working order the information technology systems used by the Eighth
Issuer Cash Manager in providing the Eighth Issuer Cash Management
Services.
(d) The Eighth Issuer Cash Manager shall pass to any person to whom it may
sub-contract or delegate the performance of all or any of its powers and
obligations under this Agreement and/or to such person as the Eighth
Issuer 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 Eighth Issuer Cash Manager shall take all reasonable steps to ensure
that it receives a monthly bank statement in relation to each of the
Eighth Issuer Bank Accounts and that it furnishes a copy of such
statements to the Eighth Issuer and the Eighth Issuer Security Trustee.
8.3 Access to Books and Records
Subject to all applicable laws, the Eighth Issuer Cash Manager shall
permit the Auditors of the Eighth Issuer and any other person nominated by
the Eighth Issuer Security Trustee, (to whom the Eighth Issuer Cash
Manager has no reasonable objection) at any time during normal office
hours upon reasonable notice to have access, or procure that such person
or persons are granted access, to all books of record and account relating
to the Eighth Issuer
7
Cash Management Services provided by the Eighth Issuer Cash Manager and
related matters in accordance with this Agreement.
8.4 Statutory Obligations
The Eighth Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Eighth Issuer, to prepare or procure the preparation of and
file all reports, annual returns, financial statements, statutory forms
and other returns which the Eighth Issuer is required by law to prepare
and file. Subject to approval thereof by the directors of the Eighth
Issuer, the Eighth Issuer Cash Manager shall cause such accounts to be
audited by the Auditors and shall procure so far as it is able so to do
that the Auditors shall make a report thereon as required by law and
copies of all such documents shall be delivered to the Eighth Issuer
Security Trustee, the Eighth Issuer and the Rating Agencies as soon as
practicable after the end of each accounting reference period of the
Eighth Issuer.
8.5 Information Covenants
(a) The Eighth Issuer Cash Manager shall provide the Eighth Issuer, the Eighth
Issuer Security Trustee, the Seller and the Rating Agencies quarterly with
a report in, or substantially in, the form set out in Schedule 3 in
respect of the Eighth Issuer. Such quarterly report shall be delivered to
the Eighth Issuer, the Eighth 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 Eighth Issuer Cash Manager shall provide, or procure the provision of,
to the Eighth Issuer, the Eighth 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 Eighth Issuer Cash Manager shall notify the Rating Agencies in writing
of the details of (i) any material amendment to the Eighth Issuer
Transaction Documents to which the Eighth Issuer is a party; (ii) the
occurrence of a Eighth Issuer Note Event of Default; and (iii) any other
information relating to the Eighth Issuer Cash Manager as the Rating
Agencies may reasonably request in connection with its obligations under
this Agreement, PROVIDED THAT such request does not adversely interfere
with the Eighth Issuer Cash Manager's day-to-day provision of the Eighth
Issuer Cash Management Services under the other terms of this Agreement.
(d) The Eighth Issuer Cash Manager shall, at the request of the Eighth Issuer
Security Trustee, furnish the Eighth 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 Eighth Issuer Security
Trustee to request in connection with this Agreement, PROVIDED THAT the
Eighth Issuer Security Trustee shall not make such a request more than
once every three months unless, in the belief of the Eighth Issuer
Security Trustee, an Eighth Issuer Intercompany Loan Event of Default,
Eighth Issuer Note Event of Default or Eighth Issuer Cash Manager
Termination Event (as defined in Clause 12.1) shall have occurred and is
continuing or may reasonably be expected to occur and PROVIDED FURTHER
THAT such request does not adversely interfere with the Eighth Issuer Cash
Manager's day-to-day provision of the Eighth Issuer Cash Management
Services under the other terms of this Agreement.
8
9. REMUNERATION
9.1 Fee payable
The Eighth Issuer shall pay to the Eighth Issuer Cash Manager for its
services hereunder a cash management fee which shall be agreed in writing
between the Eighth Issuer, the Eighth Issuer Security Trustee and the
Eighth Issuer Cash Manager from time to time.
9.2 Payment of fee
The cash management fee referred to in Clause 9.1 shall be paid to the
Eighth Issuer Cash Manager in arrear on each Interest Payment Date in the
manner contemplated by and in accordance with the provisions of the Eighth
Issuer Pre-Enforcement Revenue Priority of Payments or, as the case may
be, the Eighth Issuer Post-Enforcement Priority of Payments.
10. COVENANTS OF EIGHTH ISSUER CASH MANAGER
10.1 Covenants
The Eighth Issuer Cash Manager hereby covenants with and undertakes to
each of the Eighth Issuer and the Eighth 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 Eighth Issuer or the Eighth 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
Eighth 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 Eighth Issuer Cash Management
Services and prepare and submit all necessary applications and
requests for any further approval, authorisation, consent or licence
required in connection with the performance of the Eighth Issuer
Cash Management Services;
(d) save as otherwise agreed with the Eighth Issuer and the Eighth
Issuer Security Trustee, it will provide free of charge to the
Eighth Issuer during normal office hours office space, facilities,
equipment and staff sufficient to fulfil the obligations of the
Eighth Issuer under this Agreement;
(e) it will not knowingly fail to comply with any legal requirements in
the performance of the Eighth Issuer Cash Management Services;
(f) it will make all payments required to be made by it pursuant to this
Agreement on the due date for payment thereof for value on such day
without set-off (including, without limitation, in respect of any
fees owed to it) or counterclaim; and
(g) it will not without the prior written consent of the Eighth Issuer
Security Trustee amend or terminate any of the Eighth Issuer
Transaction Documents save in accordance with their terms.
9
10.2 Duration of covenants
The covenants of the Eighth Issuer Cash Manager in Clause 10.1 shall
remain in force until this Agreement is terminated but without prejudice
to any right or remedy of the Eighth Issuer and/or the Eighth Issuer
Security Trustee arising from breach of any such covenant prior to the
date of termination of this Agreement.
11. EIGHTH ISSUER CASH MANAGEMENT SERVICES NON-EXCLUSIVE
Nothing in this Agreement shall prevent the Eighth Issuer Cash Manager
from rendering or performing services similar to those provided for in
this Agreement to or for itself or other persons, firms or companies or
from carrying on business similar to or in competition with the business
of the Eighth Issuer or the Eighth Issuer Security Trustee.
12. TERMINATION
12.1 Eighth Issuer Cash Manager Termination Events
If any of the following events (Eighth Issuer Cash Manager Termination
Events) shall occur:
(a) default is made by the Eighth Issuer Cash Manager in the payment on
the due date of any payment due and payable by it under this
Agreement and such default continues unremedied for a period of
three London Business Days after the earlier of the Eighth Issuer
Cash Manager becoming aware of such default and receipt by the
Eighth Issuer Cash Manager of written notice from the Eighth Issuer
or the Eighth Issuer Security Trustee, as the case may be, requiring
the same to be remedied; or
(b) default is made by the Eighth Issuer Cash Manager in the performance
or observance of any of its other covenants and obligations under
this Agreement, which in the reasonable opinion of the Eighth Issuer
Security Trustee is materially prejudicial to the interests of the
Eighth Issuer Secured Creditors and such default continues
unremedied for a period of twenty days after the earlier of the
Eighth Issuer Cash Manager becoming aware of such default and
receipt by the Eighth Issuer Cash Manager of written notice from the
Eighth Issuer Security Trustee requiring the same to be remedied; or
(c) while the Eighth Issuer Cash Manager is the Seller, an Insolvency
Event occurs,
then the Eighth Issuer Security Trustee may at once or at any time
thereafter while such default continues by notice in writing to the Eighth
Issuer Cash Manager terminate its appointment as Eighth Issuer Cash
Manager under this Agreement with effect from a date (not earlier than the
date of the notice) specified in the notice.
12.2 Resignation of Eighth Issuer Cash Manager
The appointment of the Eighth Issuer Cash Manager under this Agreement may
be terminated upon the expiry of not less than 12 months' notice of
termination given by the Eighth Issuer Cash Manager to the Eighth Issuer
and the Eighth Issuer Security Trustee PROVIDED THAT:
(a) the Eighth Issuer and the Eighth Issuer Security Trustee consent in
writing to such termination;
10
(b) a substitute cash manager shall be appointed, such appointment to be
effective not later than the date of such termination;
(c) such substitute cash manager has cash management experience and is
approved by the Eighth Issuer and the Eighth 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 Eighth Issuer and the Eighth
Issuer Security Trustee and the Eighth Issuer Cash Manager shall not
be released from its obligations under the relevant provisions of
this Agreement until such substitute cash manager has entered into
such new agreement and the rights of the Eighth Issuer under such
agreement are charged in favour of the Eighth Issuer Security
Trustee on terms satisfactory to the Eighth Issuer Security Trustee;
and
(e) the then current ratings (if any) of the Eighth Issuer Notes are not
adversely affected as a result thereof, unless otherwise agreed by
an Extraordinary Resolution (as defined in the Eighth Issuer Trust
Deed) of the holders of the Class A Eighth Issuer Notes, the Class B
Eighth Issuer Notes and the Class C Eighth Issuer Notes.
12.3 Effect of Termination
(a) On and after termination of the appointment of the Eighth Issuer Cash
Manager under this Agreement pursuant to this Clause 12, all authority and
power of the Eighth Issuer Cash Manager under this Agreement shall be
terminated and be of no further effect and the Eighth Issuer Cash Manager
shall not thereafter hold itself out in any way as the agent of the Eighth
Issuer or the Eighth Issuer Security Trustee pursuant to this Agreement.
(b) Upon termination of the appointment of the Eighth Issuer Cash Manager
under this Agreement pursuant to this Clause 12, the Eighth Issuer Cash
Manager shall:
(i) forthwith deliver (and in the meantime hold on trust for, and to the
order of, the Eighth Issuer or the Eighth Issuer Security Trustee,
as the case may be) to the Eighth Issuer or the Eighth 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 Eighth Issuer or the Eighth Issuer
Security Trustee, as the case may be, (if practicable, on the date
of receipt) any monies then held by the Eighth Issuer Cash Manager
on behalf of the Eighth Issuer, the Eighth Issuer Security Trustee
and any other assets of the Eighth Issuer and the Eighth Issuer
Security Trustee;
(ii) take such further action as the Eighth Issuer or the Eighth Issuer
Security Trustee, as the case may be, may reasonably direct at the
expense of the Eighth Issuer or the Eighth Issuer Security Trustee,
as the case may be (including in relation to the appointment of a
substitute cash manager) provided that the Eighth 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 Eighth Issuer or the
Eighth Issuer Security Trustee or its nominee, as the case may be,
(which shall, for the avoidance of doubt,
11
include any Receiver appointed by it) for the purposes of explaining
the file layouts and the format of the magnetic tapes generally
containing such computer records on the computer system of the
Eighth Issuer or the Eighth Issuer Security Trustee or such nominee,
as the case may be.
12.4 Notice of event of default
The Eighth Issuer Cash Manager shall deliver to the Eighth Issuer and the
Eighth Issuer Security Trustee as soon as reasonably practicable but in
any event within three Business Days of becoming aware thereof a notice of
any Eighth Issuer Cash Manager Termination Event or any Eighth Issuer Note
Event of Default or any event which with the giving of notice or expiry of
any grace period or certification, as specified in such Eighth Issuer Cash
Manager Termination Event or Eighth Issuer Note Event of Default would
constitute the same.
12.5 General provisions relating to termination
(a) Termination of this Agreement or the appointment of the Eighth Issuer Cash
Manager under this Agreement shall be without prejudice to the liabilities
of the Eighth Issuer and the Eighth Issuer Security Trustee to the Eighth
Issuer Cash Manager or vice versa incurred before the date of such
termination. The Eighth Issuer Cash Manager shall have no right of set-off
or any lien in respect of such amounts against amounts held by it on
behalf of the Eighth Issuer or the Eighth Issuer Security Trustee.
(b) This Agreement shall terminate at such time as the Eighth Issuer Secured
Obligations have been fully discharged.
(c) On termination of the appointment of the Eighth Issuer Cash Manager under
the provisions of this Clause 12, the Eighth Issuer Cash Manager shall be
entitled to receive all fees and other monies accrued up to (but
excluding) the date of termination but shall not be entitled to any other
or further compensation. The Eighth Issuer shall pay such monies so
receivable by the Eighth Issuer Cash Manager in accordance with the Eighth
Issuer Pre-Enforcement Revenue Priority of Payments or, as the case may
be, the Eighth Issuer Post-Enforcement Priority of Payments, on the dates
on which they would otherwise have fallen due hereunder. For the avoidance
of doubt, such termination shall not affect the Eighth Issuer Cash
Manager's rights to receive payment of all amounts (if any) due to it from
the Eighth Issuer other than under this Agreement.
(d) Any provision of this Agreement which is stated to continue after
termination of 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 Eighth Issuer and
the Eighth Issuer Security Trustee shall upon request by the Eighth Issuer
Cash Manager forthwith give to the Eighth Issuer Cash Manager such further
powers of attorney or other written authorisations,
12
mandates or instruments as are necessary to enable the Eighth Issuer Cash
Manager to perform the Eighth Issuer Cash Management Services.
13.3 Change of Eighth Issuer Security Trustee
In the event that there is any change in the identity of the Eighth Issuer
Security Trustee or an additional Eighth Issuer Security Trustee is
appointed in accordance with the Eighth Issuer Deed of Charge, the Eighth
Issuer Cash Manager shall execute such documents with any other parties to
this Agreement and take such actions as such new Eighth Issuer Security
Trustee may reasonably require for the purposes of vesting in such new
Eighth Issuer Security Trustee the rights of the Eighth Issuer Security
Trustee under this Agreement and under the Eighth Issuer Deed of Charge
and releasing the retiring Eighth Issuer Security Trustee from further
obligations thereunder and while any of the Eighth Issuer Notes remains
outstanding shall give notice thereof to the Rating Agencies.
13.4 No obligation on Eighth Issuer Security Trustee
Nothing herein contained shall impose any obligation or liability on the
Eighth Issuer Security Trustee to assume or perform any of the obligations
of the Eighth Issuer or the Eighth Issuer Cash Manager hereunder or render
it liable for any breach thereof.
14. MISCELLANEOUS
14.1 No set-off
The Eighth Issuer Cash Manager agrees that it will not:
(a) set off or purport to set off any amount which either the Eighth
Issuer is or will become obliged to pay to it under this Agreement
against any amount from time to time standing to the credit of or to
be credited to the Eighth 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 Eighth Issuer Bank Accounts.
14.2 No Petition
The Eighth Issuer Cash Manager agrees that for so long as any Eighth
Issuer Notes are outstanding it will not petition or commence proceedings
for the administration or winding up of the Eighth Issuer or participate
in any ex parte proceedings with regard thereto.
14.3 No recourse
(a) In relation to all sums due and payable by the Eighth Issuer to the Eighth
Issuer Cash Manager, the Eighth Issuer Cash Manager agrees that it shall
have recourse only to sums paid to or received by (or on behalf of) the
Eighth Issuer pursuant to the provisions of the Eighth Issuer Transaction
Documents.
(b) For the avoidance of doubt, the Eighth 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 Eighth Issuer, or any Receiver
appointed pursuant to the Eighth Issuer Deed of Charge in respect of such
amounts.
13
(c) Notwithstanding any other provisions of this Agreement, all obligations
to, and rights of, the Eighth 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 Eighth
Issuer Secured Obligations, PROVIDED THAT this shall be without prejudice
to any claims in respect of such obligations and rights arising on or
prior to such date.
15. CONFIDENTIALITY
During the continuance of this Agreement or after its termination, each of
the Eighth Issuer, the Eighth Issuer Cash Manager and the Eighth 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 Eighth Issuer Note
Event of Default, or an Eighth Issuer Cash Manager Termination
Event, the protection or enforcement of any of its rights under any
of the Eighth 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 Eighth Issuer or any New
Issuer) to any credit rating agency or any prospective new cash
manager or Eighth Issuer Security Trustee.
16. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or facsimile transmission and shall be deemed to be given (in the
case of facsimile transmission) when despatched, (where delivered by hand)
on the day of delivery if delivered before 17.00 hours on a Business Day
or on the next Business Day if delivered thereafter or on a day which is
not a Business Day or (in the case of first class post) when it would be
received in the ordinary course of the post and shall be sent:
14
(a) in the case of the Eighth Issuer Cash Manager, to Abbey National plc
at Abbey National House, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the
Company Secretary with a copy to Abbey National plc, c/o Abbey House
(AAM 126), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile
number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of the Securitisation
Team, Customer Risk and Decisioning;
(b) in the case of the Eighth Issuer, to ▇▇▇▇▇▇ Financing (No. 8) PLC at
Abbey ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇
▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the
Company Secretary with a copy to Abbey National plc c/o Abbey House
(AAM 126), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile
number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of Securitisation Team,
Customer Risk and Decisioning; and
(c) in the case of the Eighth Issuer Security Trustee, to The Bank of
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number 00 44
20 7964 6061/6399) 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.
19. ASSIGNMENT
19.1 Assignment by the Eighth Issuer
The Eighth Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of each
of the Eighth Issuer Security Trustee and the Eighth Issuer Cash Manager,
except that the Eighth Issuer may assign its respective rights hereunder
without such consent pursuant to the Eighth Issuer Deed of Charge.
19.2 No assignment by Eighth Issuer Cash Manager
The Eighth Issuer Cash Manager may not assign or transfer any of its
rights and obligations under this Agreement without the prior written
consent of the Eighth Issuer and the Eighth 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) ▇▇▇ ▇▇▇▇, by any person who is not a party to this Agreement.
15
21. COUNTERPARTS
The Agreement may be executed manually or by facsimile, in one or more
counterparts.
22. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed the day
and year first before written.
16
SCHEDULE 1
THE CASH MANAGEMENT SERVICES
The Eighth Issuer Cash Manager shall:
(a) operate the Eighth Issuer Bank Accounts and ensure that payments are made
into and from such accounts in accordance with this Agreement, the Eighth
Issuer Deed of Charge, the Eighth Issuer Bank Account Agreement and any
other relevant Eighth Issuer Transaction Document, PROVIDED HOWEVER THAT
nothing herein shall require the Eighth Issuer Cash Manager to make funds
available to the Eighth Issuer to enable such payments to be made other
than as expressly required by the provisions of this Agreement;
(b) keep records for all taxation purposes (including, without limitation,
VAT);
(c) subject to any applicable law assist the Auditors of the Eighth Issuer and
provide such information to them as they may reasonably request for the
purpose of carrying out their duties as auditors;
(d) make all filings, give all notices and make all registrations and other
notifications required in the day-to-day operation of the business of the
Eighth Issuer or required to be given by the Eighth Issuer pursuant to the
Eighth Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Eighth Issuer under any of
the Eighth Issuer Transaction Documents, PROVIDED THAT such monies are at
the relevant time available to the Eighth Issuer and PROVIDED FURTHER that
nothing herein shall constitute a guarantee by the Eighth Issuer Cash
Manager of all or any of the obligations of the Eighth Issuer under any of
the Eighth Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Eighth Issuer
Corporate Services Provider under the Eighth Issuer Corporate Services
Agreement, keep general books of account and records of the Eighth Issuer;
provide accounting services, including reviewing receipts and payments,
supervising and assisting in the preparation of interim statements and
final accounts and supervising and assisting in the preparation of tax
returns;
(g) without prejudice to the role of and in conjunction with the Eighth Issuer
Corporate Services Provider under the Eighth Issuer Corporate Services
Agreement, provide or procure the provision of company secretarial and
administration services to the Eighth Issuer including the keeping of all
registers and the making of all returns and filings required by applicable
law or by UK regulatory authorities, co-operate in the convening of board
and general meetings and provide registered office facilities;
(h) itself on behalf of the Eighth Issuer, PROVIDED THAT such monies are at
the relevant time available to the Eighth Issuer, pay all the
out-of-pocket expenses of the Eighth Issuer, incurred by the Eighth Issuer
Cash Manager on behalf of the Eighth Issuer in the performance of the
Eighth Issuer Cash Manager's duties hereunder including without
limitation:
(i) all Taxes which may be due or payable by the Eighth Issuer;
(ii) all necessary filing and other fees in compliance with regulatory
requirements;
(iii) all legal and audit fees and other professional advisory fees; and
17
(iv) all communication expenses including postage, courier and telephone
charges;
(i) with the prior written consent of the Eighth Issuer Security Trustee, the
Eighth Issuer Cash Manager may invest monies standing from time to time to
the credit of the Eighth Issuer Bank Accounts in Authorised Investments,
subject to the following provisions:
(i) any such Authorised Investment shall be made in the joint names of
the Eighth Issuer and the Eighth Issuer Security Trustee;
(ii) any costs properly and reasonably incurred in making and changing
Authorised Investments will be reimbursed to the Eighth Issuer Cash
Manager and the Eighth Issuer Security Trustee by the Eighth Issuer;
and
(iii) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Eighth Issuer Bank
Account from which monies were withdrawn to make the relevant
Authorised Investment.
The Eighth Issuer Security Trustee and the Eighth Issuer Cash Manager
shall not be responsible (save where any loss results from the Eighth
Issuer Security Trustee's or the Eighth Issuer Cash Manager's own fraud,
wilful default or negligence or that of its officers or employees) for any
loss occasioned by reason of any such Authorised Investments whether by
depreciation in value or otherwise provided that such Authorised
Investments were made in accordance with the above provisions;
(j) (i) if necessary, perform all currency conversions free of charge, cost
or expense at the relevant exchange rate;
(ii) if necessary, perform all interest rate conversions (whether it be a
conversion from a floating rate of interest to a fixed rate of
interest, or vice versa) free of charge, cost or expense at the
relevant interest swap rate; and
(iii) For the purposes of any calculations referred to in sub-paragraphs
(i) and (ii) above, all percentages resulting from such calculations
will be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point (e.g. 9.876541% (or 0.09876541) being rounded
down to 9.87654% (or 0.0987654)) and (ii) any currency amounts used
in or resulting from such calculations will be rounded in accordance
with the relevant market practice;
(k) make all returns and filings required to be made by the Eighth Issuer and
provide or procure the provision of company secretarial and administration
services to the Eighth Issuer; and
(l) arrange payment of all fees to the London Stock Exchange plc or, as
applicable, the UK Listing Authority of the Financial Services Authority.
18
SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. Determination
(a) On each Eighth Issuer Note Determination Date, the Eighth Issuer Cash
Manager shall determine each of the following in accordance with this
paragraph 1:
(i) the amount of any Eighth Issuer Principal Receipts and Eighth Issuer
Revenue Receipts available as at the following Interest Payment
Date; and
(ii) the Principal Amount Outstanding of the Eighth Issuer Notes, the
Pool Factor, and the Note Principal Payment of the Eighth Issuer
Notes in accordance with the Conditions.
(b) The Eighth Issuer Cash Manager may make all the determinations referred to
in paragraph 1(a) on the basis of any reasonable and proper assumptions as
the Eighth Issuer Cash Manager considers appropriate (including without
limitation as to the amount of any payments to be made under paragraph 3
below during the period from and including the Eighth Issuer Note
Determination Date to but excluding the next Interest Payment Date).
The Eighth Issuer Cash Manager shall notify the Eighth Issuer and the
Eighth Issuer Security Trustee on request of any such other assumptions
and shall take account of any representations made by the Eighth Issuer
and the Eighth Issuer Security Trustee (as the case may be) in relation
thereto.
(c) Each determination made in accordance with this paragraph 1 shall (in the
absence of bad faith, wilful default, negligence and manifest or
demonstrable error) be final and binding on all persons.
2. Notification of Determinations
The Eighth Issuer Cash Manager shall procure that the determinations and
notifications required to be made pursuant to Condition 5(C) of the
Conditions are made.
3. Priority of Payments for Eighth Issuer Revenue Receipts
Eighth Issuer Revenue Receipts will be applied, as applicable:
(i) on each Interest Payment Date; or
(ii) on each day when due in respect of amounts due to third parties
pursuant to paragraph (b) below or amounts due to the Eighth Issuer
Account Banks under the Eighth Issuer Bank Account Agreement
pursuant to paragraph (d) below,
in each case until enforcement of the Eighth Issuer Security pursuant to
the Eighth Issuer Deed of Charge or until such time as there are no Eighth
Issuer Secured Obligations outstanding, in making such payments and
provisions in the following order of priority (in each case only if and to
the extent that payments or provisions of a higher priority have been made
in full) (the Eighth 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:
19
(i) any remuneration then due and payable to the Eighth Issuer
Security Trustee and any amounts then due and payable or to
become due and payable during the immediately following
Interest Period to the Eighth Issuer Security Trustee under
the Eighth Issuer Deed of Charge together with interest and
any amount in respect of VAT as provided therein;
(ii) any remuneration then due and payable to the Note Trustee and
any amounts then due and payable or to become due and payable
during the immediately following Interest Period to the Note
Trustee under the provisions of the Eighth Issuer Trust Deed,
together with interest and any amount in respect of VAT as
provided therein; and
(iii) any remuneration then due and payable to the Agent Bank the
Paying Agents, the Registrar and the Transfer Agent and any
costs, charges, liabilities and expenses then due and payable
or to become due and payable during the immediately following
Interest Period to them under the provisions of the Eighth
Issuer Paying Agent and Agent Bank Agreement together with any
amount in respect of VAT as provided therein;
(b) secondly, to pay any amounts due and payable by the Eighth Issuer to
third party creditors and incurred without breach by the Eighth
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
Eighth Issuer during the immediately following Interest Period and
to pay or discharge any liability of the Eighth Issuer for
corporation tax on any chargeable income, profit or gain of the
Eighth 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 Eighth Issuer
Cash Manager and any costs, charges, liabilities and expenses
then due and payable or to become due and payable during the
immediately following Interest Period to the Eighth Issuer
Cash Manager under the provisions of the Eighth Issuer Cash
Management Agreement, together with VAT thereon as provided
therein;
(ii) any remuneration then due and payable to the Eighth Issuer
Corporate Services Provider and any costs, charges,
liabilities and expenses then due and payable or to become due
and payable during the immediately following Interest Period
to the Eighth Issuer Corporate Services Provider under the
Eighth Issuer Corporate Services Agreement together with
interest and any amount in respect of VAT as provided therein;
and
(iii) any remuneration then due and payable to the Eighth Issuer
Account Banks and any costs, charges, liabilities and expenses
then due and payable or to become due and payable during the
immediately following Interest Period to the Eighth Issuer
Account Banks under the Eighth Issuer Bank Account Agreement
together with interest and any amount in respect of VAT as
provided therein;
(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 Eighth 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 Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
1 Class A Dollar Currency Swap Provider), 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 Eighth Issuer Notes;
(ii) those amounts due and payable by the Eighth 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 Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
2 Class A Dollar Currency Swap Provider), 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 Eighth Issuer Notes;
(iii) those amounts due and payable by the Eighth Issuer to the
Series 3 Class A Euro Currency Swap Provider pursuant to the
Series 3 Class A Euro Currency Swap Agreement (except for any
termination payment due and payable by the Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
3 Class A Euro Currency Swap Provider), and from the proceeds
received on each Interest Payment Date from the Series 3 Class
A Euro Currency Swap Provider, interest due and payable on the
Series 3 Class A Eighth Issuer Notes;
(iv) interest due and payable by the Eighth Issuer on the Series 4
Class A1 Eighth Issuer Notes; and
(v) those amounts due and payable by the Eighth Issuer to the
Series 4 Class A2 Dollar Currency Swap Provider pursuant to
the Series 4 Class A2 Dollar Currency Swap Agreement (except
for any termination payment due and payable by the Eighth
Issuer following an Eighth Issuer Swap Provider Default by the
Series 4 Class A2 Dollar Currency Swap Provider) and from the
proceeds received from the Series 4 Class A2 Dollar Currency
Swap Providers interest due and payable by the Eighth Issuer
on the Series 4 Class A2 Eighth Issuer Notes;
(e) fifthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) those amounts due and payable by the Eighth Issuer to the
Series 1 Class B Dollar Currency Swap Provider pursuant to the
Series 1 Class B Dollar Currency Swap Agreement (except for
any termination payment due and payable by the Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
1 Class B Dollar Currency Swap Provider), and from the
proceeds received from the Series 1 Class B Dollar Currency
Swap Provider, interest due and payable on the Series 1 Class
B Eighth Issuer Notes;
(ii) those amounts due and payable by the Eighth Issuer to the
Series 2 Class B Dollar Currency Swap Provider pursuant to the
Series 2 Class B Dollar Currency Swap Agreement (except for
any termination payment due and
21
payable by the Eighth Issuer following an Eighth Issuer Swap
Provider Default by the Series 2 Class B Dollar Currency Swap
Provider), and from the proceeds received from the Series 2
Class B Dollar Currency Swap Provider, interest due and
payable on the Series 2 Class B Eighth Issuer Notes;
(iii) those amounts due and payable by the Eighth Issuer to the
Series 3 Class B Euro Currency Swap Provider pursuant to the
Series 3 Class B Euro Currency Swap Agreement (except for any
termination payment due and payable by the Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
3 Class B Euro Currency Swap Provider), and from the proceeds
received from the Series 3 Class B Euro Currency Swap
Provider, interest due and payable on the Series 3 Class B
Eighth Issuer Notes; and
(iv) interest due and payable by the Eighth Issuer on the Series 4
Class B Eighth Issuer Notes;
(f) sixthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) those amounts due and payable by the Eighth Issuer to the
Series 1 Class C Dollar Currency Swap Provider pursuant to the
Series 1 Class C Dollar Currency Swap Agreement (except for
any termination payment due and payable by the Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
1 Class C Dollar Currency Swap Provider), and from the
proceeds received from the Series 1 Class C Dollar Currency
Swap Provider, interest due and payable on the Series 1 Class
M Eighth Issuer Notes;
(ii) those amounts due and payable by the Eighth Issuer to the
Series 2 Class C Dollar Currency Swap Provider pursuant to the
Series 2 Class C Dollar Currency Swap Agreement (except for
any termination payment due and payable by the Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
2 Class C Dollar Currency Swap Provider), and from the
proceeds received from the Series 2 Class C Dollar Currency
Swap Provider, interest due and payable on the Series 2 Class
C Eighth Issuer Notes;
(iii) those amounts due and payable by the Eighth Issuer to the
Series 3 Class C Euro Currency Swap Provider pursuant to the
Series 3 Class C Euro Currency Swap Agreement (except for any
termination payment due and payable by the Eighth Issuer
following an Eighth Issuer Swap Provider Default by the Series
3 Class C Euro Currency Swap Provider), and from the proceeds
received from the Series 3 Class C Euro Currency Swap
Provider, interest due and payable on the Series 3 Class C
Eighth Issuer Notes; and
(iv) interest due and payable by the Eighth Issuer on the Series 4
Class C Eighth Issuer Notes;
(g) eighthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) any termination payments due and payable by the Eighth Issuer
under the Series 1 Class A Dollar Currency Swap Agreement,
following the occurrence
22
of an Eighth Issuer Swap Provider Default by the Series 1
Class A Dollar Currency Swap Provider;
(ii) any termination payments due and payable by the Eighth Issuer
under the Series 2 Class A Dollar Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 2 Class A Dollar Currency Swap Provider;
(iii) any termination payments due and payable by the Eighth Issuer
under the Series 3 Class A Euro Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 3 Class A Euro Currency Swap Provider;
and
(iv) any termination payments due and payable by the Eighth Issuer
under the Series 4 Class A2 Dollar Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 4 Class A2 Dollar Currency Swap
Provider;
(h) eighthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) any termination payments due and payable by the Eighth Issuer
under the Series 1 Class B Dollar Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 1 Class B Dollar Currency Swap Provider;
(ii) any termination payments due and payable by the Eighth Issuer
under the Series 2 Class B Dollar Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 2 Class B Dollar Currency Swap Provider;
and
(iii) any termination payments due and payable by the Eighth Issuer
under the Series 3 Class B Euro Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 3 Class B Euro Currency Swap Provider.
(i) ninthly, to pay pro rata and pari passu according to the respective
amounts thereof of:
(i) any termination payments due and payable by the Eighth Issuer
under the Series 1 Class C Dollar Currency Swap Agreement,
following the occurrence of a Eighth Issuer Swap Provider
Default by the Series 1 Class C Dollar Currency Swap Provider;
(ii) any termination payments due and payable by the Eighth Issuer
under the Series 2 Class C Dollar Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 2 Class C Dollar Currency Swap Provider;
and
(iii) any termination payments due and payable by the Eighth Issuer
under the Series 3 Class C Euro Currency Swap Agreement,
following the occurrence of an Eighth Issuer Swap Provider
Default by the Series 3 Class C Euro Currency Swap Provider.
23
(j) tenthly, to pay the Eighth Issuer an amount equal to [0.01] per
cent. of the interest received on the Eighth Issuer Term Advances to
be retained by the Eighth Issuer as profit; and
(k) eleventhly, to pay to shareholders of the Eighth Issuer any dividend
declared by the Eighth Issuer.
4. Priority of Payments for Eighth Issuer Principal Receipts
Subject to Condition 5 of the Eighth Issuer Notes, until enforcement of
the Eighth Issuer Security pursuant to the Eighth Issuer Deed of Charge or
until such time as there are no Eighth Issuer Notes outstanding, Eighth
Issuer Principal Receipts will be applied to repay the Eighth Issuer Notes
as follows:
(i) the Series 1 Class A Eighth Issuer Notes shall be redeemed on
the Interest Payment Date falling in April 2005 in an amount
equal to the amount, if any, repaid in respect of the Eighth
Issuer Series 1 Term AAA Advance, converted into Dollars at
the relevant Dollar Currency Swap Rate;
(ii) the Series 2 Class A Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 2 Term AAA Advance, converted into
Dollars at the relevant Dollar Currency Swap Rate;
(iii) the Series 3 Class A Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 3 Term AAA Advance, converted into
Euros at the relevant Euro Currency Swap Rate;
(iv) the Series 4 Class A1 Eighth Issuer Notes shall be redeemed
on each Interest Payment Date in an amount equal to the
amount, if any, repaid on that Interest Payment Date in
respect of the Eighth Issuer Series 4A1 Term AAA Advance;
(v) the Series 4 Class A2 Eighth Issuer Notes shall be redeemed
on each Interest Payment Date in an amount equal to the
amount, if any, repaid on that Interest Payment Date in
respect of the Eighth Issuer Series 4A2 Term AAA Advance,
converted into Dollars at the relevant Dollar Currency Swap
Rate;
(vi) the Series 1 Class B Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 1 Term AA Advance, converted into
Dollars at the relevant Dollar Currency Swap Rate;
(vii) the Series 2 Class B Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 2 Term AA Advance, converted into
Dollars at the relevant Dollar Currency Swap Rate;
(viii) the Series 3 Class B Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that
24
Interest Payment Date in respect of the Eighth Issuer Series
3 Term AA Advance converted into Euros at the relevant Euro
Currency Swap Rate;
(ix) the Series 4 Class B Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 4 Term AA Advance;
(x) the Series 1 Class C Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 1 Term BBB Advance, converted into
Dollars at the relevant Dollar Currency Swap Rate;
(xi) the Series 2 Class C Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 2 Term BBB Advance, converted into
Dollars at the relevant Dollar Currency Swap Rate;
(xii) the Series 3 Class C Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 3 Term BBB Advance converted into
Euros at the relevant Euro Currency Swap Rate; and
(xiii) the Series 4 Class C Eighth Issuer Notes shall be redeemed on
each Interest Payment Date in an amount equal to the amount,
if any, repaid on that Interest Payment Date in respect of
the Eighth Issuer Series 4 Term BBB Advance.
5. Records
In addition, the Eighth 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 Agreements.
25
SCHEDULE 3
FORM OF EIGHTH ISSUER QUARTERLY REPORT
▇▇▇▇▇▇ Financing (No. 8) PLC
Profit & Loss Account
Period Ended
This Quarter Prior Quarter
(pound) (pound)
----------------------------
Interest Receivable - Inter-Company Loan 0 0
Interest Receivable - Cash Deposits
----------------------------
Interest Payable - Notes
Interest Payable
----------------------------
0 0
----------------------------
Net Operating Income 0 0
Other Income
Insurance Commission
Operating Expenses
----------------------------
Profit/loss on ordinary activities before tax 0 0
Taxation
----------------------------
Profit/loss on ordinary activities after tax 0 0
Dividend 0 0
Retained profit brought forward 0 0
----------------------------
Retained profit for the year 0 0
============================
26
▇▇▇▇▇▇ Financing (No. 8) PLC
Balance Sheet
Period Ended
(pound) (pound)
Fixed Asset Investments
Inter Company Lending 0
Current Assets
Interest Receivable 0
Other debtors 0
Cash at Bank 0
-----------
0
-----------
Creditors: Amounts falling due within one year
Accruals 0
Interest Payable Accrual 0
-----------
Taxation 0
-----------
Net current assets 0
Creditors: Amounts falling due after one year
Amount due to Noteholders 0
-----------
Total Assets less current liabilities 0
===========
Share Capital 0
Reserves 0
-----------
0
===========
Diff 0
27
▇▇▇▇▇▇ Financing (No. 8) PLC
Notes Outstanding
Period Ended
[Series 1 [Series 2 [Series 3 [Series 4 [Series 4
Class A] Class A] Class A] Class A1] Class A2]
▇▇▇▇▇'▇ Current Rating [P -1] [Aaa] [Aaa] [Aaa] [Aaa]
Fitch Current Rating [F1+] [AAA] [AAA] [AAA] [AAA]
S&P Current Rating [A-1+] [AAA] [AAA] [AAA] [AAA]
[Series 1 [Series 2 [Series 3 [Series 4
Class B] Class B] Class B] Class B]
▇▇▇▇▇'▇ Current Rating [Aa3] [Aa3] [Aa3] [Aa3]
Fitch Current Rating [AA] [AA] [AA] [AA]
S&P Current Rating [AA] [AA] [AA] [AA]
[Series 1 [Series 2 [Series 3 [Series 4
Class C] Class C] Class C] Class C]
▇▇▇▇▇'▇ Current Rating [A2] [A2] [A2] [A2]
Fitch Current Rating [A] [A] [A] [A]
S&P Current Rating [A] [A] [A] [A]
[Series 1 [Series 2 [Series 3 [Series 4 [Series 4
Class A] Class A] Class A] Class A1] Class A2]
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
[Series 1 [Series 2 [Series 3 [Series 4
Class B] Class B] Class B] Class B]
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
[Series 1 [Series 2 [Series 3 [Series 4
Class C] Class C] Class C] Class C]
Initial Note Balance
Previous Quarters Note
Principal
Note Redemptions
Outstanding Note Principal
[Series 1 [Series 2 [Series 3 [Series 4 [Series 4
Class A] Class A] Class A] Class A1] Class A2]
Note Interest Margins
Step Up Dates
Step Up Margins
[Series 1 [Series 2 [Series 3 [Series 4
Class B] Class B] Class B] Class B]
Note Interest Margins
Step Up Dates
Step Up Margins
[Series 1 [Series 2 [Series 3 [Series 4
Class C] Class C] Class C] Class C]
Note Interest Margins
Step Up Dates
Step Up Margins
[Series 1 [Series 2 [Series 3 [Series 4 [Series 4
Class A] Class A] Class A] Class A1] Class A2]
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
[Series 1 [Series 2 [Series 3 [Series 4
Class B] Class B] Class B] Class B]
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
[Series 1 [Series 2 [Series 3 [Series 4
Class C] Class C] Class C] Class C]
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Data
28
SIGNATORIES
SIGNED for and on behalf of )
ABBEY NATIONAL PLC )
SIGNED for and on behalf of )
▇▇▇▇▇▇ FINANCING (NO. 8) PLC )
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
29
