DRAFT PF8 SERIES 3 CLASS [A/B/C] SCHEDULE
EXHIBIT 10.2.8
SERIES 3 CLASS [A/B/C]
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of *
between
(1) IXIS CORPORATE & INVESTMENT BANK ("PARTY A");
(2) PERMANENT FINANCING (NO. 8) PLC ("PARTY B"); and
(3) THE BANK OF NEW YORK (the "SECURITY TRUSTEE", which expression will
include its successors and assigns and which has agreed to become a
party to this Agreement solely for the purpose of taking the benefit of
Parts 5 (b) and 5(l) of this Schedule and assuming the obligations
under the final paragraph of Part 5(f) of this Schedule).
Part 1. TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:-
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
and in relation to Party B for the purpose of:-
Section 5(a)(v), none
Section 5(a)(vi), none
Section 5(a)(vii), none
Section 5(b)(iv), none
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section
14 of this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi), will not apply
to Party A and will not apply to Party B.
- 19 -
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will
not apply to Party A and will not apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will
not apply to Party A and will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purposes of Section 6(e) of
this Agreement:-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means Sterling.
(h) "ADDITIONAL TERMINATION EVENT" will apply. In addition to the
Additional Termination Events set forth in Parts 5(f)(iv) and
5(f)(viii) of this Schedule, the following will each constitute
an Additional Termination Event:
(i) The Additional Tax Representation (as defined in Part 2(b) of
this Schedule), proves to have been incorrect or misleading in
any material respect with respect to one or more Transactions
(each an "AFFECTED TRANSACTION" for the purpose of this
Additional Termination Event) when made or repeated or deemed
to have been made or repeated. For the purpose of the foregoing
Termination Event, the Affected Party will be Party A only.
(ii) A redemption or purchase of the Series 3 Class [A/B/C]Eighth
Issuer Notes occurs pursuant to Condition 5(F) (redemption or
purchase following a regulatory event) of the terms and
conditions thereof. For the purpose of the foregoing
Termination Event: (A) for the purpose of Section 6(b)(iv),
both parties will be Affected Parties; and (B) for the purpose
of Section 6(e), the Affected Party will be Party B only.
- 20 -
Part 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B each make the following representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e), 6(d)
(ii) or 6(e) of this Agreement) to be made by it to the other party
under this Agreement. In making this representation, it may rely on (i)
the accuracy of any representations made by the other party pursuant to
Section 3(f) of this Agreement, (ii) the satisfaction of the agreement
contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the
accuracy and effectiveness of any document provided by the other party
pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii)
the satisfaction of the agreement of the other party contained in
Section 4(d) of this Agreement, except that it will not be a breach of
this representation where reliance is placed on clause(ii) and the
other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of the
Agreement, Party A makes the following representation (the "ADDITIONAL
TAX REPRESENTATION"):
(i) it is a party to each Transaction solely for the purposes of a
trade (or part of a trade) carried on by it in the United
Kingdom through a branch or agency or permanent
establishment; or
(ii) it is resident for tax purposes in the United Kingdom or in a
jurisdiction with which the United Kingdom has a double tax
treaty which makes provision, whether for relief or otherwise,
in relation to interest.
For the purpose of Section 3(f) of the Agreement, Party B does not
make any representation.
- 21 -
Part 3. AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Sections 4(a)(i) and 4(a)(ii) of this Agreement, each party
agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are: none
(b) Other documents to be delivered are:
PARTY REQUIRED COVERED BY
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
Party A and Appropriate On signing of this Yes
Party B evidence of its Agreement
signatory's
authority
Party B Certified copy On signing of this Yes
of board Agreement
resolution and
constitutional
documents
Party A Legal opinion On signing of this No
from in-house Agreement
counsel to
Party A in form
and substance
satisfactory to
Party B
Party B Legal opinions On signing of this No
from ▇▇▇▇▇ & Agreement
Overy LLP in
form and
substance
satisfactory to
Party A
Party A Credit Support On signing of this Yes
Document in Agreement
respect of
Party A
specified in
Part 4(f) of
this Schedule
Party B Executed Copy of On signing of this
Trust Deed Agreement or as
soon as practicable
thereafter.
- 22 -
Part 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES.
Address for notices or communications to Party A:
Address: IXIS Corporate & Investment Bank, London Brnach
▇▇▇▇▇▇ Bridge
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
With a copy to: IXIS Corporate & Investment Bank
Address: Back-Office Derives FMP10
▇▇ ▇▇▇▇ ▇'▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ cedex 13
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇/▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: ▇▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Address for notices or communications to Party B:
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Secretary
Facsimile No.: 020 7566 0975
With a copy to: (i) HBOS Treasury Services plc
Address: ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: Head of Capital Markets and Securitisation
Facsimile No.: 020 7574 8784
(ii) the Security Trustee:
Address: The Bank of New York
One Canada Square
London
E14 5AL
- 23 -
Attention: Global Structured Finance - Corporate Trust
Facsimile No.: 020 7964 6061/6399
(b) PROCESS AGENT. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
In respect of Party A: The Credit Support Annex dated the date hereof
between
Party A and Party B.
In respect of Party B: None.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means in relation
to Party A, [none ].
Credit Support Provider means in relation to Party B, none.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with English law.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to Transactions entered into under this Agreement
unless otherwise specified in a Confirmation.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
- 24 -
Part 5. OTHER PROVISIONS
(a) NO SET-OFF
(i) All payments under this Agreement will be made without set-off or
counterclaim, except as expressly provided for in Section 6.
(ii) Section 6(e) will be amended by the deletion of the following
sentence:
"The amount, if any, payable in respect of an Early Termination Date
and determined pursuant to this Section will be subject to any
Set-off."
(b) SECURITY INTEREST
Notwithstanding Section 7, Party A hereby agrees and consents to the assignment
by way of security by Party B of its interests under this Agreement (without
prejudice to, and after giving effect to, any contractual netting provision
contained in this Agreement) to the Security Trustee (or any successor thereto)
pursuant to and in accordance with the Eighth Issuer Deed of Charge and
acknowledges notice of such assignment. Each of the parties hereby confirms
and agrees that the Security Trustee will not be liable for any of the
obligations of Party B hereunder.
(c) DISAPPLICATION OF CERTAIN EVENTS OF DEFAULT
Section 5(a)(ii), Section 5(a)(iii), Section 5(a)(iv), Section 5(a)(v), Section
5(a)(vii)(2), (6), (7) and (9) and Section 5(a)(viii) will not apply in respect
of Party B.
Section 5(a)(vii)(8) will not apply in respect of Party B to the extent that it
applies to Section 5(a)(vii)(2), (6), (7) and (9).
(d) DISAPPLICATION OF CERTAIN TERMINATION EVENTS
The "Tax Event Upon Merger" provision of Section 5(b)(iii) will not apply to
Party A or to Party B.
The "Tax Event" provision of Section 5(b)(ii) will not apply to Party B and
will apply to Party A, provided that:
(i) the application and interpretation of Section 5(b)(ii) shall be
restricted to a Change in Tax Law, as defined below; and
(ii) Party A will only be entitled to designate an Early Termination Date
in respect of a Transaction on the basis of a Tax Event affecting that
Transaction if it obtains the prior consent of the Security Trustee.
Such consent shall be given where Party A has provided the Security
Trustee with (1) a certificate signed by two authorised signatories of
Party A stating that a Change in Tax Law has occurred and identifying
such Change in Tax Law, and (2) an opinion in form and substance
satisfactory to the Security Trustee of independent legal advisers of
recognised standing to the effect that Party A has been or will be
required to pay a Gross-Up Amount (or, as the case may be, a Liability
Amount) under Section 2(d) as a result of such Change in Tax Law.
- 25 -
For these purposes "Change in Tax Law" means any enactment, promulgation,
execution or ratification of, or any change in or amendment to, any law that
occurs on or after the date on which the relevant Transaction is entered into.
(e) ADDITIONAL EVENT OF DEFAULT
The following will constitute an additional Event of Default with respect to
Party B:
"NOTE ACCELERATION NOTICE. A Note Acceleration Notice is served on Party B in
relation to the Series 3 Class [A/B/C]Eighth Issuer Notes."
(f) RATINGS EVENT
(i) If the short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider from time to
time in respect of Party A cease to be rated at least as high as
["A-1+"] by Standard & Poor's Rating Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P") and, as a result of such
cessation, the then current rating of the Series 3 Class [A/B/C]
Eighth Issuer Notes is downgraded or placed under review for possible
downgrade by S&P (an "INITIAL S&P RATING EVENT"), then Party A will at
its own cost either:
(A) within 10 days of an Initial S&P Rating Event provide collateral
in the form of cash or securities or both in support of its
obligations under this Agreement in accordance with the
provisions of the Credit Support Annex; or
within 30 days of the occurrence of such Initial S&P Rating Event:
(B) transfer all of its rights and obligations with respect to
this Agreement to a replacement third party satisfactory to the
Security Trustee (whose consent will be given if S&P confirms
that such transfer would maintain the rating of the Series 3
Class [A/B/C] Eighth Issuer Notes by S&P at, or restore the
rating of the Series 3 Class [A/B/C]Eighth Issuer Notes by S&P
to, the level it would have been at immediately prior to such
Initial S&P Rating Event);
(C) obtain a guarantee of its rights and obligations with respect
to this Agreement from a third party satisfactory to the
Security Trustee (whose consent will be given if S&P confirms
that such guarantee would maintain the rating of the Series 3
Class [A/B/C] Eighth Issuer Notes at, or restore the rating of
the Series 3 Class [A/B/C]Eighth Issuer Notes to, the level it
would have been at immediately prior to such Initial S&P Rating
Event); or
(D) take such other action as Party A may agree with S&P as will
result in the rating of the Series 3 Class [A/B/C] Eighth
Issuer Notes following the taking of such action being
maintained at, or restored to, the level it would have been at
immediately prior to such Initial S&P Rating Event.
If any of paragraphs (i)(B), (i)(C) or (i)(D) above are satisfied at
any time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to paragraph (i)(A) above will be
transferred to Party A and Party A will not be required to transfer
any additional collateral.
(ii) If the short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider from time to
time in respect of Party A cease
- 26 -
to be rated at least as high as ["A-3"] by S&P and, as a result of
such downgrade, the then current rating of the Series 3 Class
[A/B/C]Eighth Issuer Notes may in the reasonable opinion of S&P be
downgraded or placed under review for possible downgrade (such event,
a "SUBSEQUENT S&P RATING EVENT"), then Party A will, within 10 days of
the occurrence of such Subsequent S&P Rating Event, at its own cost
either:
(A) transfer all of its rights and obligations with respect to this
Agreement to a replacement third party satisfactory to the
Security Trustee (whose consent will be given if S&P confirms
that such transfer would maintain the rating of the Series 3
Class [A/B/C] Eighth Issuer Notes by S&P at, or restore the
rating of the Series 3 Class [A/B/C]Eighth Issuer Notes by S&P
to, the level it would have been at immediately prior to such
Subsequent S&P Rating Event);
(B) take such other action as Party A may agree with S&P as will
result in the rating of the Series 3 Class [A/B/C]Eighth Issuer
Notes following the taking of such action being maintained at,
or restored to, the level it would have been at immediately
prior to such Subsequent S&P Rating Event; or
(C) obtain a guarantee of its rights and obligations with respect
to this Agreement from a third party satisfactory to the
Security Trustee (whose consent will be given if S&P confirms
that such guarantee would maintain the rating of the Series 3
Class [A/B/C] Eighth Issuer Notes at, or restore the rating of
the Series 3 Class [A/B/C] Eighth Issuer Notes to, the level it
would have been at immediately prior to such Subsequent S&P
Rating Event),
and, if, at the time a Subsequent S&P Rating Event occurs, Party A has
provided collateral pursuant to a ▇▇▇▇-to-market collateral arrangement
put in place pursuant to paragraph (i)(A) above following an Initial
S&P Rating Event, it will continue to post collateral notwithstanding
the occurrence of a Subsequent S&P Rating Event until such time as any
of paragraphs (ii)(A), (ii)(B) or (ii)(C) above have been satisfied.
If any of paragraphs (ii)(A), (ii)(B) or (ii)(C) above are satisfied
at any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to paragraph (i)(A) above
will be transferred to Party A and Party A will not be required to
transfer any additional collateral.
(iii) If:
(A) the long-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider from
time to time in respect of Party A cease to be rated at least
as high as ["A1"] (or its equivalent) by ▇▇▇▇▇'▇; or
(B) the short-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider
from time to time in respect of Party A cease to be rated at
least as high as ["Prime-1"] (or its equivalent) by ▇▇▇▇▇'▇,
(such cessation being an "INITIAL ▇▇▇▇▇'▇ RATING EVENT"), then Party A
will at its own cost either:
(1) within 10 days of an Initial ▇▇▇▇▇'▇ Rating Event provide
collateral in the form of cash or securities or both in support
of its obligations under this Agreement in accordance with the
provisions of the Credit Support Annex; or
- 27 -
within 30 days of the occurrence of such Initial ▇▇▇▇▇'▇ Rating Event:
(2) transfer all of its rights and obligations with respect to this
Agreement to either (x) a replacement third party with the
Required Ratings (as defined below) domiciled in the same legal
jurisdiction as Party A or Party B, or (y) a replacement third
party as Party A may agree with ▇▇▇▇▇'▇;
(3) procure another person to become co-obligor or guarantor in
respect of the obligations of Party A under this Agreement,
which co-obligor or guarantor may be either (x) a person with
the Required Ratings (as defined below) domiciled in the same
legal jurisdiction as Party A or Party B, or (y) such other
person as Party A may agree with ▇▇▇▇▇'▇; or
(4) take such other action as Party A may agree with ▇▇▇▇▇'▇.
If any of paragraphs (iii)(2), (iii)(3) or (iii)(4) above are
satisfied at any time, all collateral (or the equivalent thereof, as
appropriate) transferred by Party A pursuant to paragraph (iii)(1)
above will be transferred to Party A and Party A will not be required
to transfer any additional collateral.
(iv) If:
(A) the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider
from time to time in respect of Party A cease to be rated as
high as ["A3"] (or its equivalent) by ▇▇▇▇▇'▇; or
(B) the short-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider
from time to time in respect of Party A cease to be rated as
high as ["Prime-2"] (or its equivalent) by ▇▇▇▇▇'▇,
(such cessation being a "SUBSEQUENT ▇▇▇▇▇'▇ RATING EVENT"), then Party
A will:
(1) on a reasonable efforts basis, as soon as reasonably
practicable after the occurrence of such Subsequent ▇▇▇▇▇'▇
Rating Event, at its own cost, either:
(aa) transfer all of its rights and obligations with respect
to this Agreement to either (x) a replacement third
party with the Required Ratings (as defined below)
domiciled in the same legal jurisdiction as Party A or
Party B, or (y) a replacement third party as Party A
may agree with ▇▇▇▇▇'▇;
(bb) procure another person to become co-obligor or guarantor
in respect of the obligations of Party A under this
Agreement, which co-obligor or guarantor may be either
(x) a person with the Required Ratings (as defined below)
domiciled in the same legal jurisdiction as Party A or
Party B, or (y) such other person as Party A may agree
with ▇▇▇▇▇'▇; or
(cc) take such other action as Party A may agree with
▇▇▇▇▇'▇; and
- 28 -
(2) provide collateral in the form of cash or securities or both
in support of its obligations under this Agreement in accordance
with the provisions of the Credit Support Annex.
If any of paragraphs (iv)(1)(aa), (bb) or (cc) above are satisfied at
any time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to paragraph (iv)(2) above will be
transferred to Party A and Party A will not be required to transfer any
additional collateral.
For the purposes of paragraphs (iii) and (iv) of this Part 5(f),
"REQUIRED RATINGS" means, in respect of the relevant entity, its
short-term, unsecured and unsubordinated debt obligations are rated at
least as high as ["Prime-1"] and its long-term, unsecured and
unsubordinated debt obligations are rated at least as high as ["A1"],
or such other ratings as may be agreed with ▇▇▇▇▇'▇ from time to time.
In relation to paragraphs (iii)(4) and (iv)(2) above, Party A will,
upon receipt of reasonable notice from ▇▇▇▇▇'▇ demonstrate to ▇▇▇▇▇'▇
the calculation by Party A of the ▇▇▇▇-to-market value of the
outstanding Transactions. In relation to paragraph (iv)(2) above, Party
A will, at its own cost, on receipt of reasonable notice from ▇▇▇▇▇'▇
(which, for the avoidance of doubt, will be no less than 30 days)
arrange a third party valuation of the ▇▇▇▇-to-market value of the
outstanding Transactions.
(v) If either the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider from time
to time in respect of Party A cease to be rated at least as high as
["A+"] (or its equivalent) by Fitch Ratings Ltd ("FITCH") or the
short-term, unsecured and unsubordinated debt obligations of Party A
(or its successor) or any Credit Support Provider from time to time in
respect of Party A cease to be rated at least as high as ["F1"] (or its
equivalent) by Fitch and, as a result of such cessation, the then
current rating of the Series 3 Class [A/B/C]Eighth Issuer Notes is
downgraded or placed under review for possible downgrade by Fitch (an
"INITIAL FITCH RATING EVENT") then Party A will, at its own cost,
either:
(A) within 10 days of an Initial Fitch Rating Event provide
collateral in the form of cash or securities or both in support
of its obligations under this Agreement in accordance with the
provisions of the Credit Support Annex; or
on a reasonable efforts basis within 30 days of the occurrence of such
Initial Fitch Rating Event:
(B) transfer all of its rights and obligations with respect to
this Agreement to a replacement third party satisfactory to the
Security Trustee (whose consent will be given if Fitch confirms
that such transfer would maintain the rating of the Series 3
Class [A/B/C] Eighth Issuer Notes by Fitch at, or restore the
rating of the Series 3 Class [A/B/C] Eighth Issuer Notes by
Fitch to, the level it would have been at immediately prior to
such Initial Fitch Rating Event);
(C) obtain a guarantee of its rights and obligations with respect to
this Agreement from a third party satisfactory to the Security
Trustee (whose consent will be given if Fitch confirms that such
guarantee would maintain the rating of the Series 3 Class
[A/B/C] Eighth Issuer Notes at, or restore the rating of the
Series 3 Class [A/B/C] Eighth Issuer Notes to, the level it
would have been at immediately prior to such Initial Fitch
Rating Event); or
- 29 -
(D) take such other action as Party A may agree with Fitch as will
result in the rating of the Series * Class * Eighth Issuer Notes
following the taking of such action being maintained at, or
restored to, the level it would have been at immediately prior
to such Initial Fitch Rating Event.
If any of paragraphs (v)(B), (v)(C) or (v)(D) above are satisfied at
any time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to paragraph (v)(A) above will be
transferred to Party A and Party A will not be required to transfer any
additional collateral.
(vi) If either the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider from time
to time in respect of Party A cease to be rated at least as high as
["BBB+"] (or its equivalent) by Fitch or the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor) or any
Credit Support Provider from time to time in respect of Party A cease
to be rated at least as high as ["F2"] (or its equivalent) by Fitch
and, as a result of such cessation, the then current rating of the
Series 3 Class [A/B/C] Eighth Issuer Notes is downgraded or placed
under review for possible downgrade by Fitch (a "FIRST SUBSEQUENT FITCH
RATING EVENT") then Party A will either:
(A) within 10 days of a First Subsequent Fitch Rating Event provide
collateral in the form of cash or securities in support of its
obligations under this Agreement in accordance with the
provisions of the Credit Support Annex; or
(B) on a reasonable efforts basis within 30 days of the occurrence
of such First Subsequent Fitch Rating Event, at its own cost,
attempt either to:
(1) transfer all of its rights and obligations with respect
to this Agreement to a replacement third party
satisfactory to the Security Trustee (whose consent will
be given if Fitch confirms that such transfer would
maintain the rating of the Series 3 Class [A/B/C] Eighth
Issuer Notes by Fitch at, or restore the rating of the
Series 3 Class [A/B/C] Eighth Issuer Notes by Fitch to,
the level it would have been at immediately prior to such
First Subsequent Fitch Rating Event);
(2) obtain a guarantee of its rights and obligations with
respect to this Agreement from a third party satisfactory
to the Security Trustee (whose consent will be given if
Fitch confirms that such guarantee would maintain the
rating of the Series 3 Class [A/B/C] Eighth Issuer Notes
at, or restore the rating of the Series 3 Class [A/B/C]
Eighth Issuer Notes to, the level it would have been at
immediately prior to such First Subsequent Fitch Rating
Event); or
(3) take such other action as Party A may agree with Fitch as
will result in the rating of the Series 3 Class [A/B/C]
Eighth Issuer Notes following the taking of such action
being maintained at, or restored to, the level it would
have been at immediately prior to such First Subsequent
Fitch Rating Event.
If any of paragraphs (vi)(B)(1), (2) or (3) above are satisfied at any
time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to a ▇▇▇▇-to-market collateral
agreement put in place in accordance with paragraph (v)(A) above or
- 30 -
paragraph (vi)(A) will be transferred to Party A and Party A will not
be required to transfer any additional collateral.
(vii) If either the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider from time
to time in respect of Party A cease to be rated at least as high as
["BBB"] (or its equivalent) by Fitch or the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor) or any
Credit Support Provider from time to time in respect of Party A cease
to be rated at least as high as ["F3"] (or its equivalent) by Fitch
and, as a result of such cessation, the then current rating of the
Series 3 Class [A/B/C] Eighth Issuer Notes is downgraded or placed
under review for possible downgrade by Fitch (a "SECOND SUBSEQUENT
FITCH RATING EVENT") then Party A will, on a reasonable efforts basis
within 30 days of the occurrence of such Second Subsequent Fitch Rating
Event, at its own cost, attempt either to:
(A) transfer all of its rights and obligations with respect to this
Agreement to a replacement third party satisfactory to the
Security Trustee (whose consent will be given if Fitch confirms
that such transfer would maintain the rating of the Series 3
Class [A/B/C] Eighth Issuer Notes by Fitch at, or restore the
rating of the Series 3 Class [A/B/C] Eighth Issuer Notes by
Fitch to, the level it would have been at immediately prior to
such Second Subsequent Fitch Rating Event);
(B) obtain a guarantee of its rights and obligations with respect
to this Agreement from a third party satisfactory to the
Security Trustee (whose consent will be given if Fitch
confirms that such guarantee would maintain the rating of the
Series 3 Class [A/B/C] Eighth Issuer Notes at, or restore the
rating of the Series 3 Class [A/B/C]Eighth Issuer Notes to,
the level it would have been at immediately prior to such
Second Subsequent Fitch Rating Event); or
(C) take such other action as Party A may agree with Fitch as will
result in the rating of the Series 3 Class [A/B/C]Eighth
Issuer Notes following the taking of such action being
maintained at, or restored to, the level it would have been at
immediately prior to such Second Subsequent Fitch Rating Event.
Pending compliance with any of paragraphs (vii)(A), (B) or (C) above,
Party A will provide collateral in the form of cash or securities or
both in support of its obligations under this Agreement in accordance
with the provisions of the Credit Support Annex (provided that the
▇▇▇▇-to-market calculations and the correct and timely posting of
collateral thereunder are verified by an independent third party (with
the costs of such independent verification being borne by Party A)). If
any of paragraphs (vii)(A), (B) or (C) above are satisfied at any time,
all collateral (or the equivalent thereof, as appropriate) transferred
by Party A under such a ▇▇▇▇-to-market collateral agreement will be
transferred to Party A and Party A will not be required to transfer any
additional collateral.
(viii) (A) If Party A does not take any of the measures described in
paragraph (i) above, such failure will not be or give rise to an
Event of Default but will constitute an Additional Termination
Event with respect to Party A which will be deemed to have
occurred on the thirtieth day following the Initial S&P Rating
Event with
- 31 -
Party A as the sole Affected Party and all Transactions as
Affected Transactions.
(B) If, at the time a Subsequent S&P Rating Event occurs, Party A
has provided collateral pursuant to paragraph (i)(A) above and
fails to continue to post collateral pending compliance with any
of paragraphs (ii)(A), (ii)(B) or (ii)(C) above, such failure
will not be or give rise to an Event of Default but will
constitute an Additional Termination Event with respect to Party
A and will be deemed to have occurred on the later of the tenth
day following such Subsequent S&P Rating Event and the thirtieth
day following the Initial S&P Rating Event with Party A as the
sole Affected Party and all Transactions as Affected
Transactions. Further, it will constitute an Additional
Termination Event with respect to Party A if, even if it is
posting collateral as required by paragraph (ii) above and
notwithstanding Section 5(a)(ii), Party A does not take any of
the measures described in paragraphs (ii)(A), (ii)(B) or (ii)(C)
above. Such Additional Termination Event will be deemed to have
occurred on the tenth day following the Subsequent S&P Rating
Event with Party A as the sole Affected Party and all
Transactions as Affected Transactions.
(C) If Party A does not take any of the measures described in
paragraph (iii)(1), (2), (3) or (4) above, such failure will not
be or give rise to an Event of Default but will constitute an
Additional Termination Event with respect to Party A and will be
deemed to have occurred on the thirtieth day following the
occurrence of such Initial ▇▇▇▇▇'▇ Rating Event with Party A as
the sole Affected Party and all Transactions as Affected
Transactions.
(D) If Party A does not take the measures described in paragraph
(iv) (2) above, such failure will give rise to an Event of
Default with respect to Party A and will be deemed to have
occurred on the thirtieth day following such Subsequent ▇▇▇▇▇'▇
Rating Event (or, if Party A has provided collateral in
accordance with the requirements of paragraph (iii)(4) above,
such Event of Default will be deemed to have occurred on the
tenth day following such Subsequent ▇▇▇▇▇'▇ Rating Event) with
Party A as the Defaulting Party. Further, it will constitute an
Additional Termination Event with respect to Party A if, even
after satisfying the requirements of paragraph (iv)(2) above,
and notwithstanding Section 5(a)(ii), Party A has failed,
having applied reasonable efforts, to either transfer as
described in paragraph (iv)(1)(aa), find a co-obligor or
guarantor as described in paragraph (iv)(1)(bb) or take such
other action as described in paragraph (iv)(1)(cc). Such
Additional Termination Event will be deemed to have occurred on
the thirtieth day after receiving notice of failure to use
reasonable efforts with Party A as the sole Affected Party and
all Transactions as Affected Transactions.
(E) If Party A does not take the measures described in paragraph (v)
above, such failure will not be or give rise to an Event of
Default but will constitute an Additional Termination Event with
respect to Party A which will be deemed to have occurred on the
thirtieth day following the Initial Fitch Rating Event with
Party A as the sole Affected Party and all Transactions as
Affected Transactions.
(F) If Party A does not take the measures described in paragraph
(vi) above, such failure will not be or give rise to an Event
of Default but will constitute an Additional Termination Event
with respect to Party A which will be deemed to
- 32 -
have occurred on the thirtieth day following the First
Subsequent Fitch Rating Event with Party A as the sole Affected
Party and all Transactions as Affected Transactions.
(G) If Party A does not, pending compliance with any of paragraphs
(vii)(A), (B) or (C), continue to comply with the terms of the
Credit Support Annex, such failure will give rise to an Event of
Default with respect to Party A and will be deemed to have
occurred on the tenth day following such Second Subsequent Fitch
Rating Event with Party A as the Defaulting Party. Further, it
will constitute an Additional Termination Event with respect to
Party A if, even after satisfying the above requirements, Party
A has failed, within 30 days following such Second Subsequent
Fitch Rating Event, to either transfer as described in paragraph
(vii)(A), find a guarantor as described in paragraph (vii)(B) or
take such other action as described in paragraph (vii)(C). Such
Additional Termination Event will be deemed to have occurred on
the thirtieth day following such Second Subsequent Fitch Rating
Event with Party A as the sole Affected Party and all
Transactions as Affected Transactions.
(H) In the event that Party B were to designate an Early Termination
Date and there would be a payment due to Party A, Party B may
only designate such an Early Termination Date in respect of an
Additional Termination Event under this Part 5(f) if Party B has
found a replacement counterparty willing to enter into a new
transaction on terms that reflect as closely as reasonably
possible, as determined by Party B in its sole and absolute
discretion, the economic, legal and credit terms of the
Terminated Transactions with Party A, and Party B has acquired
the Security Trustee's prior written consent.
Each of Party B and the Security Trustee will use their reasonable endeavours
to co-operate with Party A in entering into such documents as may reasonably be
requested by Party A in connection with the provision of such collateral.
(g) TRANSFER POLICY
Section 7 of this Agreement will not apply to Party A, who will be required to
comply with, and will be bound by, the following:
Without prejudice to Section 6(b)(ii) as amended in this Schedule, Party A may
transfer all (but not part only) of its interests and obligations in and under
this Agreement to any of its Affiliates or, with the prior written consent of
Party B, such consent not to be unreasonably withheld, to any other entity
(each such Affiliate or entity a "TRANSFEREE") upon providing five Business
Days' prior written notice to the Note Trustee, provided that:
(i) the Transferee's short-term, unsecured and unsubordinated debt
obligations are then rated not less than ["A-1+"] by S&P,
["Prime-1"] by ▇▇▇▇▇'▇ and ["F1"] by Fitch and its long-term,
unsecured and unsubordinated debt obligations are then rated
not less than ["AA-"] by S&P, ["A1"] by ▇▇▇▇▇'▇ and ["A+"] by
Fitch (or its equivalent by any substitute rating agency) or
such Transferee's obligations under this Agreement are
guaranteed by an entity whose short-term, unsecured and
unsubordinated debt obligations are then rated not less than
["A-1+"] by S&P, ["Prime-1"] by ▇▇▇▇▇'▇ and ["F1"] by Fitch and
whose long-term, unsecured and unsubordinated debt obligations
are then rated not less than ["AA-"] by S&P, ["A1"] by ▇▇▇▇▇'▇
and ["A+"] by Fitch (or its equivalent by any substitute rating
agency);
- 33 -
(ii) the Rating Agencies have confirmed that the transfer will not result in
the then current rating of the Series 3 Class [A/B/C] Eighth Issuer
Notes being downgraded;
(iii) the Transferee will not, as a result of such transfer, be required on
the next succeeding Scheduled Payment Date to withhold or deduct on
account of any Tax (except in respect of default interest) amounts in
excess of that which Party A would, on the next succeeding Scheduled
Payment Date have been required to so withhold or deduct unless the
Transferee would be required to make additional payments pursuant to
Section 2(d)(i)(4) corresponding to such excess;
(iv) a Termination Event or Event of Default does not occur as a result of
such transfer;
(v) no additional amount will be payable by Party B to Party A or the
Transferee on the next succeeding Scheduled Payment Date as a result of
such transfer; and
(vi) the Transferee confirms in writing that it will accept all of the
interests and obligations in and under this Agreement which are to be
transferred to it in accordance with the terms of this provision.
With respect to paragraph (iii) above, each party agrees to make such Payee Tax
Representations and Payer Tax Representations as may reasonably be requested by
the other party in order to reasonably satisfy such other party that such
withholding or deduction will not occur.
Following the transfer, all references to Party A (or its Credit Support
Provider, as applicable) will be deemed to be references to the Transferee.
Save as otherwise provided for in this Agreement and notwithstanding Section 7,
Party A will not be permitted to transfer (by way of security or otherwise)
this Agreement nor any interest or obligation in or under this Agreement
without the prior written consent of the Security Trustee.
(h) ADDITIONAL REPRESENTATION
Section 3 is amended by the addition at the end thereof of the following
additional representations (provided that the representation in Section 3(h)
will be made by Party A only):
"(g) NO AGENCY. It is entering into this Agreement, including each
Transaction, as principal and not as agent of any person or entity.
(h) PARI PASSU. Its obligations under this Agreement rank pari passu
with all of its other unsecured, unsubordinated obligations except
those obligations preferred by operation of law."
(i) RECORDING OF CONVERSATIONS
Each party to this Agreement (i) consents to the recording of the telephone
conversations of trading, marketing and operations personnel of the parties in
connection with this Agreement or any potential Transaction, (ii) agrees to
obtain any necessary consent of, and give notice of such recording to, such
personnel of it and (iii) agrees that in any Proceedings it will not object to
the introduction of such recordings in evidence on the ground that consent was
not properly given.
- 34 -
(j) RELATIONSHIP BETWEEN THE PARTIES
The Agreement is amended by the insertion after Section 14 of an additional
Section 15, reading in its entirety as follows:
"15. RELATIONSHIP BETWEEN THE PARTIES
Each party will be deemed to represent to the other party on the date on which
it enters into a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the contrary for that
Transaction):
(a) NON RELIANCE. It is acting for its own account, and it has made
its own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
advice from such advisers as it has deemed necessary. It is not relying
on any communication (written or oral) of the other party as investment
advice or as a recommendation to enter into that Transaction, it being
understood that information and explanations related to the terms and
conditions of a Transaction will not be considered investment advice or
a recommendation to enter into that Transaction. No communication
(written or oral) received from the other party will be deemed to be an
assurance or guarantee as to the expected results of that Transaction.
(b) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits of
and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the financial and other risks of that
Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a fiduciary for or
an adviser for it in respect of that Transaction."
(k) TAX
The Agreement is amended by deleting Section 2(d) in its entirety and replacing
it with the following:
"(d) Deduction or Withholding for Tax
(i) Requirement to Withhold
All payments under this Agreement will be made without any deduction or
withholding for or on account of any Tax unless such deduction or
withholding is required (including, for the avoidance of doubt, if such
deduction or withholding is required in order for the payer to obtain
relief from Tax) by any applicable law, as modified by the practice of
any relevant governmental revenue authority, then in effect. If a party
("X") is so required to deduct or withhold, then that party (the
"DEDUCTING PARTY"):
(1) will promptly notify the other party ("Y") of such requirement;
(2) will pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to
be deducted or withheld from any Gross Up Amount (as defined
below) paid by the Deducting Party to Y under this Section
2(d)) promptly upon the earlier of determining that such
- 35 -
deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) will promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if X is Party A, X will promptly pay in addition to the payment
to which Party B is otherwise entitled under this Agreement,
such additional amount (the "GROSS UP AMOUNT") as is necessary
to ensure that the net amount actually received by Party B will
equal the full amount which Party B would have received had no
such deduction or withholding been required.
(ii) Liability
If:
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to make
any deduction or withholding for or on account of any Tax; and
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent that Y has satisfied or then satisfies the
liability resulting from such Tax, (A) where X is Party B, Party A will
promptly pay to Party B the amount of such liability (the "LIABILITY
AMOUNT") (including any related liability for interest and together
with an amount equal to the Tax payable by Party B on receipt of such
amount but including any related liability for penalties only if Party
A has failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d)) and Party B will promptly pay to
the relevant government revenue authority the amount of such liability
(including any related liability for interest and penalties) and (B)
where X is Party A and Party A would have been required to pay a Gross
Up Amount to Party B, Party A will promptly pay to the relevant
government revenue authority the amount of such liability (including
any related liability for interest and penalties).
(iii) Tax Credit etc.
Where Party A pays an amount in accordance with Section 2(d)(i)(4)
above, Party B undertakes as follows:
(1) to the extent that Party B obtains any Tax credit, allowance,
setoff or repayment from the tax authorities of any
jurisdiction relating to any deduction or withholding giving
rise to such payment (a "TAX CREDIT"), it will pay to Party A
as soon as practical after receipt of the same so much of the
cash benefit (as calculated below) relating thereto which it
has received as will leave Party B in substantially the same
(but in any event no worse) position as Party B would have been
in if no such deduction or withholding had been required;
(2) the "cash benefit" will, in the case of a Tax credit, allowance
or setoff, be the additional amount of Tax which would have been
payable by Party B in the jurisdiction referred to in clause (1)
above but for the obtaining by it of the said
- 36 -
Tax credit, allowance or setoff and, in the case of a repayment,
will be the amount of the repayment together, in either case,
with any related interest, repayment supplement or similar
payment obtained by Party B; and
(3) it will use all reasonable endeavours to obtain any Tax Credit
as soon as is reasonably practicable provided that it will be
the sole judge of the amount of such Tax Credit and of the date
on which the same is received and will not be obliged to
disclose to Party A any information relating to its tax affairs
or tax computations save that Party B will, upon request by
Party A, supply Party A with a reasonably detailed explanation
of its calculation of the amount of any such Tax Credit and of
the date on which the same is received."
(l) SECURITY, ENFORCEMENT AND LIMITED RECOURSE
(i) Party A agrees with Party B and the Security Trustee to be bound by
the terms of the Eighth Issuer Deed of Charge and, in
particular, confirms that: (A) no sum will be payable by or on
behalf of Party B to it except in accordance with the
provisions of the Eighth Issuer Deed of Charge; and (B) it will
not take any steps for the winding up, dissolution or
reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee, liquidator,
sequestrator or similar officer of Party B or of any or all of
its revenues and assets nor participate in any ex parte
proceedings nor seek to enforce any judgment against Party B,
subject to the provisions of the Eighth Issuer Deed of Charge.
(ii) In relation to all sums due and payable by Party B to Party A, Party A
agrees that it will have recourse only to Eighth Issuer
Available Funds, but always subject to the order of priority of
payments set out in the Eighth Issuer Cash Management Agreement
and the Eighth Issuer Deed of Charge.
(m) CONDITION PRECEDENT
Section 2(a)(iii) will be amended by the deletion of the words "a Potential
Event of Default" in respect of obligations of Party A only.
(n) REPRESENTATIONS
Section 3(b) will be amended by the deletion of the words "or Potential Event
of Default" in respect of the representation given by Party B only.
(o) ADDITIONAL DEFINITIONS
Words and expressions defined in the Amended and Restated Master Definitions
and Construction Schedule (the "MASTER SCHEDULE") and the Eighth Issuer Master
Definitions and Construction Schedule (the "ISSUER SCHEDULE") (together the
"MASTER DEFINITIONS SCHEDULE") signed on or about the date of this Agreement
will, except so far as the context otherwise requires, have the same meaning in
this Agreement. In the event of any inconsistency between the definitions in
this Agreement and in the Master Definitions Schedule the definitions in this
Agreement will prevail. In the event of any inconsistency between the Master
Schedule and the Issuer Schedule, the Issuer Schedule will prevail. The rules
of interpretation set out in the Master Definitions Schedule will apply to this
Agreement.
- 37 -
(p) CHANGE OF ACCOUNT
Section 2(b) of this Agreement is hereby amended by the addition of the
following at the end thereof:
"; provided that such new account will be in the same legal and tax
jurisdiction as the original account and such new account, in the case of Party
B, is held with a financial institution with a short-term, unsecured,
unsubordinated and unguaranteed debt obligation rating of at least ["Prime-1"]
(in the case of ▇▇▇▇▇'▇), ["A1+"] (in the case of S&P) and ["F1+"] (in the case
of Fitch) (or, if such financial institution is not rated by a Rating Agency,
at such equivalent rating that is acceptable to such Rating Agency)."
(q) MODIFICATIONS TO CLOSE-OUT PROVISIONS
Upon the occurrence of an Event of Default with respect to Party A or an
Additional Termination Event which entitles Party B to terminate any Affected
Transaction pursuant to Section 6(b) of the Agreement, Party B will be entitled
(but not obliged in the event that it does not designate an Early Termination
Date) to proceed in accordance with Section 6 of this Agreement, subject to the
following:
(i) For the purposes of Section 6(d)(i), Party B's obligation with respect
to the extent of information to be provided with its calculations is
limited to information Party B has already received in writing and
provided Party B is able to release this information without breaching
the provisions of any law applicable to, or any contractual restriction
binding upon, Party B.
(ii) The following amendments will be deemed to be made to the definition of
"Market Quotation":
(A) the word "firm" will be added before the word "quotations" in
the second line; and
(B) the words ", provided that such documentation would either be
the same as this Agreement and the existing confirmations
hereto (and the long-term, unsecured and unsubordinated debt
obligations of the Reference Market-maker are rated not less
than ["A+"] by S&P and ["A1"] by ▇▇▇▇▇'▇ and the short-term,
unsecured and unsubordinated debt obligations of the Reference
Market-maker are rated not less than ["Prime-1"] by ▇▇▇▇▇'▇ and
["F1"] by Fitch (or, if such Reference Market-maker is not
rated by a Rating Agency, at such equivalent rating that is
acceptable to such Rating Agency)) or the Rating Agencies have
confirmed in writing that such proposed documentation will not
adversely impact the ratings of the Notes" will be added after
"agree" in the sixteenth line; and
(C) the last sentence will be deleted and replaced with the
following:
"If, on the last date set for delivery of quotations, exactly
two quotations are provided, the Market Quotation will be the
higher of the two quotations. If only one quotation is provided
on such date, Party B may, in its discretion, accept such
quotation as the Market Quotation and, if Party B does not
accept such quotation (or if no quotation has been provided),
it will be deemed that the Market Quotation in respect of the
Terminated Transaction cannot be determined. If no quotation
has been provided, it will be deemed that the
- 38 -
Market Quotation in respect of the Terminated Transaction cannot
be determined."
(iii) For the purpose of the definition of "Market Quotation", and without
limitation of the general rights of Party B under the Agreement:
(A) Party B will undertake to use its reasonable efforts to obtain
at least three firm quotations as soon as reasonably
practicable after the Early Termination Date and in any event
within the time period specified pursuant to Part 5(q)(iii)(C)
below;
(B) Party A will, for the purposes of Section 6(e), be permitted to
obtain on behalf of Party B quotations from Reference
Market-makers;
(C) If no quotations have been obtained within 6 Local Business
Days after the occurrence of the Early Termination Date or such
longer period as Party B may specify in writing to Party A, then
it will be deemed that the Market Quotation in respect of the
Terminated Transaction cannot be determined;
(D) Party B will be deemed to have discharged its obligations under
Part 5(q)(iii)(A) above if it promptly requests, in
writing, Party A (such request to be made within two Local
Business Days after the occurrence of the Early Termination
Date) to obtain on behalf of Party B quotations from Reference
Market-makers. Party A agrees to act in accordance with such
request; and
(E) Party B will not be obliged to consult with Party A as to the
day and time of obtaining any quotations.
(r) CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement will not have any right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any of its terms but
this will not affect any right or remedy of a third party which exists or is
available apart from that Act.
- 39 -
From: Ixis Corporate & Investment Bank *
To: Permanent Financing (No. 8) PLC
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: The Secretary
To: ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: Global Structured Finance - Corporate Trust
*, 2005
Dear Sirs,
CONFIRMATION - SERIES 3 CLASS B DOLLAR TO STERLING CURRENCY SWAP
The purpose of this letter is to confirm the terms and conditions of the Swap
Transaction entered into between us on the Trade Date specified below. This
letter constitutes a "CONFIRMATION" as referred to in the 1992 ISDA Master
Agreement (Multicurrency-Cross Border) (Series 3 Class B) entered into between
us, you and The Bank of New York (the "SECURITY TRUSTEE") dated as of *, 2005,
as amended and supplemented from time to time (the "AGREEMENT").
The definitions and provisions contained in the 2000 ISDA Definitions as
published by the International Swaps and Derivatives Association, Inc. (the "
DEFINITIONS") are incorporated into this Confirmation. In the event of any
inconsistency between any of the following, the first listed will govern (i)
this Confirmation; (ii) the Master Definitions Schedule; and (iii) the
Definitions.
1. The terms of the particular Swap Transaction to which this Confirmation
relates are as follows:
Party A: *
Party B: Permanent Financing (No. 8) PLC
Trade Date: *, 2005
Effective Date: *, 2005
- 40 -
Termination Date: The earlier of (i) the Quarterly
Interest Payment Date falling in *
and (ii) the date on which all of the
Series 3 Class B Eighth Issuer Notes
are redeemed in full except (A)
pursuant to Condition 5(F)
(redemption or purchase following a
regulatory event) of the terms and
conditions of the Series 3 Class B
Eighth Issuer Notes and (B) following
delivery of a Note Acceleration
Notice on Party B in relation to the
Series 3 Class B Eighth Issuer Notes.
Dollar Currency Exchange Rate: * USD per GBP
Business Days: London Business Day, New York
Business Day and TARGET Business Day.
Calculation Period: Has the meaning given to such term in
the Definitions.
Calculation Agent: Party A
Party A Floating Amounts:
Party A Currency Amount: In respect of each Party A
Calculation Period, an amount in
Dollars equal to the principal amount
outstanding of the Series 3 Class B
Eighth Issuer Notes on the first day
of such Calculation Period (after
taking into account any redemption on
such day).
Party A Payment Dates: Each Quarterly Interest Payment Date
from and including the Quarterly
Interest Payment Date falling in
* 2005 up to the Termination Date and
the Termination Date.
Party A Floating Rate: In respect of each Party A
Calculation Period, Three-Month
USD-LIBOR determined in respect of
the first day of such Party A
Calculation Period.
Spread: * per cent. [for Party A Calculation
Periods commencing prior to the
Quarterly Interest Payment Date
falling in * and * per cent.
thereafter.]
Party A Floating Rate Day
Count Fraction: Actual/360
Party B Floating Amounts:
Party B Currency Amount: In respect of each Party B
Calculation Period, an amount in
Sterling equivalent to the Party A
Currency Amount for the Party A
Calculation
- 41 -
Period commencing on the first day of
such Party B Calculation Period
converted by reference to the Dollar
Currency Exchange Rate.
Party B Payment Dates: Each Quarterly Interest Payment Date
from and including the Quarterly
Interest Payment Date falling in *
2005 up to the Termination Date and
the Termination Date.
Party B Floating Rate: In respect of each Party B
Calculation Period, Sterling-LIBOR
determined in respect of the first
day of such Party B Calculation
Period.
Spread: * per cent. [for Party B Calculation
Periods commencing prior to the
Quarterly Interest Payment Date
falling in * and * per cent.
thereafter.]
Party B Floating Rate Day
Count Fraction: Actual/365 (Fixed)
Initial Exchange:
Initial Exchange Date: Effective Date
Party A Initial
Exchange Amount: GBP *
Party B Initial
Exchange Amount: USD *
Interim Exchange:
Interim Exchange Dates: Each Quarterly Interest Payment Date
(other than the Termination Date) on
which any of the Series 3 Class B
Eighth Issuer Notes are redeemed in
whole or in part.
Party A Interim
Exchange Amount: In respect of each Interim Exchange
Date, an amount in Dollars equal to
the amount of the Series 3 Class B
Eighth Issuer Notes redeemed on such
Interim Exchange Date.
Party B Interim
Exchange Amount: In respect of each Interim Exchange
Date, the Sterling equivalent of the
Party A Interim Exchange Amount for
such Interim Exchange Date converted
by reference to the Dollar Currency
Exchange Rate.
- 42 -
Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: An amount in Dollars equal to the
principal amount outstanding of the
Series 3 Class B Eighth Issuer Notes
on the Final Exchange Date (before
taking into account any redemption on
such day).
Party B Final Exchange Amount: An amount in Sterling equal to the
principal amount outstanding of the
Series 3 Class B Eighth Issuer Notes
on the Final Exchange Date (before
taking into account any redemption on
such day), converted by reference to
the Dollar Currency Exchange Rate.
If Party B does not have sufficient
principal available pursuant to the
Seventh Issuer Cash Management
Agreement to pay the Party B Final
Exchange Amount in full on the Final
Exchange Date and accordingly pays
only a part of the Party B Final
Exchange Amount to Party A on such
date, Party A will be obliged on such
date to deliver only the Dollar
Equivalent of such part of the Party
B Final Exchange Amount, converted by
reference to the Dollar Currency
Exchange Rate.
2. Deferral of Floating Amounts:
If any payment of interest under the Series 3 Class B Seventh Issuer
Notes is deferred in accordance with the terms and conditions of the
Series 3 Class B Seventh Issuer Notes, a corresponding part as
determined by the Calculation Agent of the Party A Floating Amount and
a pro rata part as determined by the Calculation Agent of the Party B
Floating Amount which, in each case, would otherwise be due in respect of
the relevant Quarterly Interest Payment Date will be deferred.
The amount so deferred on the Party A Floating Amount will be payable on
the next Party A Payment Date (together with an additional floating
amount which shall be accrued thereon as determined by the Calculation
Agent at the applicable Party A Floating Rate (excluding the Spread))
and the Party A Floating Amount due on such date will be deemed to
include such amounts.
The amount so deferred on the Party B Floating Amount will be payable on
the next Party B Payment Date (together with an additional floating
amount which shall be accrued thereon as determined by the Calculation
Agent at the applicable Party B Floating Rate (excluding the Spread))
and the Party B Floating Amount due on such will be deemed to include
such amounts.
On any subsequent occasion if any payment of interest under the Series 3
Class B Seventh Issuer Notes is deferred (including any payment of a
previous shortfall of interest or any payment of interest on such
shortfall) in accordance with the terms and conditions of the Series 3
Class B Seventh Issuer Notes, all or a corresponding part as determined
by the Calculation Agent of the Party A Floating Amount and a pro rata
part as determined by the Calculation Agent of the Party B Floating
Amount will be deferred.
- 43 -
The amount so deferred on the Party A Floating Amount will be payable on
the next Party A Payment Date (together with an additional floating
amount which shall be accrued thereon as determined by the Calculation
Agent at the applicable Party A Floating Rate (excluding the Spread))
and the Party A Floating Amount due on such date will be deemed to
include such amounts.
The amount so deferred on the Party B Floating Amount will be payable on
the next Party B Payment Date (together with an additional floating
amount which shall be accrued thereon as determined by the Calculation
Agent at the applicable Party B Floating Rate (excluding the Spread))
and the Party B Floating Amount due on such date will be deemed to
include such amounts.
[3.] Account Details:
Payments to Party A
in Dollars: Bank: *
Account Number: *
SWIFT: *
ABA No.: *
Favour: *
Payments to Party A
in Sterling: Bank: *
SWIFT: *
Account Number: *
Favour: *
Payments to Party B
in Dollars: Bank: Citibank, N.A., New York
Credit Account: ▇▇▇▇▇▇▇▇
New York Swift: ▇▇▇▇▇▇▇▇
FAO: Citibank, N.A., London
London Swift: CITIGB2L
Reference: GATS "Permanent Financing
PLC" (No. 8)
Payments to Party B
in Sterling: Bank: The Governor and Company of
the Bank of Scotland
Account Number: ▇▇▇▇▇▇▇▇
- 44 -
Sort Code: 12-24-55
Account Name: Permanent Financing (No. 8)
PLC Transaction Account
It is agreed by the parties that payments made by Party A to the
Principal Paying Agent in accordance with the settlement instructions,
as detailed above, will be considered as absolute and conclusive
discharge of Party A's obligations to Party B in respect of such
payment, regardless of whether the Principal Paying Agent makes a
payment in turn to Party B. This will continue to be the case until
Party B changes its account in accordance with Section 2(b) of the
Agreement.
[4.] Notification to Party A
For the purpose of making any determination or calculation hereunder,
the Calculation Agent may rely on any information, report, notice or
certificate delivered to it by the Eighth Issuer Cash Manager or Party B
and the Calculation Agent will not be liable for any error,
incompleteness or omission regarding such information.
Party B or the Eighth Issuer Cash Manager acting on its behalf, will
notify Party A of the amount of principal payments to be made on the
Series 3 Class B Eighth Issuer Notes on each Quarterly Interest Payment
Date no later than one (1) Business Day prior to such Quarterly Interest
Payment Date.
[5.] Notice Details:
Party A: *
Address: *
Facsimile No.: *
Attention: *
Party B: Permanent Financing (No. 8) PLC
Address: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Facsimile Number: 020 7566 0975
Attention: The Secretary
With a copy to: (i) the Security Trustee:
Name: The Bank of New York
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
- 45 -
Facsimile Number: 020 7964 6061/6399
Attention: Global Structured Finance
(ii) HBOS Treasury Services plc
Address: ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Facsimile Number: 020 7574 8784
Attention: Head of Capital Markets and Securitisation
Yours faithfully,
IXIS CORPORATE & INVESTMENT BANK
By:
Name:
Title:
Confirmed as of the date first written:
PERMANENT FINANCING (NO. 8) PLC
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
- 46 -