DRAFT
SERIES 2 CLASS [A/B/C]
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of [{circle}], 2005
between
(1) SWISS RE FINANCIAL PRODUCTS CORPORATION ("PARTY A");
(2) PERMANENT FINANCING (NO. 7) 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.
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(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 2 Class [A/B/C] Seventh
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 (except that Party B will be the sole
Affected Party where the Series 2 Class [A/B/C] Seventh Issuer
Notes are purchased by Party B and remain outstanding); and (B)
for the purpose of Section 6(e), the Affected Party will be Party
B only.
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Part 2. TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B 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.
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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 DATE BY WHICH SECTION 3(D)
DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED REPRESENTATION
Party A and Appropriate evidence of On signing of this Yes
Party B its signatory's authority Agreement
Party B Certified copy of On signing of this Yes
board resolution and Agreement
constitutional documents
Party A Legal opinion in form and On signing of this No
substance satisfactory to Agreement
Party B
Party B Legal opinions from On signing of this No
Allen & Overy LLP and Agreement
Shepherd + Wedderburn
Party A and A copy of the annual report for Upon request, as Yes
Party B such party containing audited soon as publicly
or certified financial available
statements for the most
recently ended financial year
Party A Credit Support Document in On signing of this Yes
respect of Party A specified in Agreement
Part 4(f) of this Schedule
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Part 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES.
Notwithstanding the terms of Section 12(a) of this Agreement, notices
and other communications under Section 5 or 6 of this Agreement may be
given by facsimile transmission to the relevant facsimile number
specified below.
Address for notices or communications to Party A:
Address: 55 East 52nd Street, 39th Floor
New York,
NY 10055
USA
Attention: Head of Operations
Facsimile No.: +1 212 317 5335
With a copy to:
Address: 55 East 52nd Street, 39th Floor
New York,
NY 10055
USA
Attention: Head of Legal
Facsimile No.: + 212 317 5474
Address for notices or communications to Party B:
Address: Blackwell House
Guildhall Yard
London
EC2V 5AE
Attention: The Secretary
Facsimile No.: 020 7566 0975
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With a copy to: (i) HBOS Treasury Services plc:
Address: 33 Old Broad Street
London
EC2N 1HZ
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
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: Guarantee by Swiss Reinsurance Company dated on
or about the date of this Agreement of the obligations of Party A
arising out of, inter alia, Transactions entered into under this
Agreement.
In respect of Party B: None.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means in relation to
Party A, Swiss Reinsurance Company.
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.
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(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.
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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 Seventh 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 not be withheld 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,
will be or there is a substantial likelihood that Party A will be (x)
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 or (y)
entitled to receive a payment from
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Party B from which an amount is required to be deducted or withheld as a
result of such Change in Tax Law.
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 2 Class [A/B/C] Seventh Issuer Notes."
(f) RATINGS EVENT
(i) If 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 "AA-" by
Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc. ("S&P") and, as a result of such cessation, the then
current rating of the Series 2 Class [A/B/C] Seventh Issuer Notes is
downgraded or placed under review for possible downgrade by S&P (an
"INITIAL S&P RATING EVENT"), then Party A will, within 30 days of the
occurrence of such Initial S&P Rating Event, at its own cost either:
(A) put in place an appropriate mark-to-market collateral agreement
(which may be based on the credit support documentation published
by ISDA, or otherwise, and relates to collateral in the form of
cash or securities or both) in support of its obligations under
this Agreement on terms satisfactory to the Security Trustee
(whose consent will be given if S&P confirms that the provision
of such collateral would maintain the rating of the Series 2
Class [A/B/C] Seventh Issuer Notes by S&P at, or restore the
rating of the Series 2 Class [A/B/C] Seventh Issuer Notes by S&P
to, the level it would have been at immediately prior to such
Initial S&P Rating Event) provided that (x) Party A will be
deemed to have satisfied the requirements of S&P if the amount of
collateral agreed to be provided in the form of cash and/or
securities (the "COLLATERAL AMOUNT") is determined on a basis
which satisfies (but is no more onerous than) the criteria of S&P
published on 17th December, 2003, as amended and supplemented
from time to time, which enables entities rated lower than a
specified level to participate in structured finance transactions
which, through collateralisation are rated at a higher level (the
"S&P CRITERIA") and (y) the Collateral Amount will not be
required to exceed such amount as would be required (in
accordance with the S&P Criteria) to maintain or restore the
rating of the Series 2 Class [A/B/C] Seventh Issuer Notes at or
to the level they would have been at immediately prior to such
Initial S&P Rating Event;
(B) transfer all of its rights and obligations 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 2
Class [A/B/C] Seventh Issuer Notes by S&P at, or restore the
rating of the Series 2 Class [A/B/C] Seventh Issuer Notes by S&P
to, the level it would have been at immediately prior to such
Initial S&P Rating Event);
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(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 2 Class [A/B/C]
Seventh Issuer Notes at, or restore the rating of the Series 2
Class [A/B/C] Seventh 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 2 Class [A/B/C] Seventh 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 [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-]" by S&P and, as a result of such downgrade, the then current
rating of the Series 2 Class [A/B/C] Seventh 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 30 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 2
Class [A/B/C] Seventh Issuer Notes by S&P at, or restore the
rating of the Series 2 Class [A/B/C] Seventh 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 2 Class [A/B/C] Seventh 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 2 Class [A/B/C]
Seventh Issuer Notes at, or restore the rating of the Series 2
Class [A/B/C] Seventh 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 mark-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
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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 Moody's; 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 Moody's,
(such cessation being an "INITIAL MOODY'S RATING EVENT"), then Party A
will, within 30 days of the occurrence of such Initial Moody's Rating
Event, at its own cost either:
(1) 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 Moody's;
(2) procure another person to become co-obligor or guarantor in
respect of the obligations of Party A under this Agreement, which
co-obligor or guarantor may be either (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 Moody's;
(3) take such other action as Party A may agree with Moody's; or
(4) put in place a mark-to-market collateral agreement in a form and
substance acceptable to Moody's (which may be based on the credit
support documentation published by ISDA, or otherwise, and
relates to collateral in the form of cash or securities or both)
in support of its obligations under this Agreement which complies
with the Moody's Criteria (as defined below) or such other
criteria relating to the amount of collateral as may be agreed
with Moody's.
If any of paragraphs (iii)(1), (iii)(2) or (iii)(3) above are satisfied
at any time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to paragraph (iii)(4) 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 in
respect of Party A cease to be rated as high as "A3" (or its
equivalent) by Moody's; or
(B) the short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider in
respect of Party A cease to be rated as high as "Prime-2" (or its
equivalent) by Moody's,
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(such cessation being a "SUBSEQUENT MOODY'S RATING EVENT"), then Party A
will:
(1) on a reasonable efforts basis, as soon as reasonably practicable
after the occurrence of such Subsequent Moody's 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 Moody's;
(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 Moody's; or
(cc) take such other action as Party A may agree with Moody's;
and
(2) within the later of 10 days of the occurrence of such Subsequent
Moody's Rating Event and 30 days of the occurrence of an Initial
Moody's Rating Event, put in place, at its own cost, pending
compliance with paragraph (iv)(1)(aa), (iv)(1)(bb) or (iv)(1)(cc)
above, a mark-to-market collateral agreement in a form and
substance acceptable to Moody's (which may be based on the credit
support documentation published by ISDA, or otherwise, and
relates to collateral in the form of cash or securities or both)
in support of its obligations under this Agreement which complies
with the Moody's Criteria (as defined below) or such other
criteria relating to the amount of collateral as may be agreed
with Moody's, provided that, if, at the time a Subsequent Moody's
Rating Event occurs, Party A has provided collateral pursuant to
a mark-to-market collateral arrangement put in place pursuant to
paragraph (iii)(4) above following an Initial Moody's Rating
Event, it will continue to post collateral notwithstanding the
occurrence of a Subsequent Moody's Rating Event.
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 Moody's from time to time.
In relation to paragraphs (iii)(4) and (iv)(2) above, Party A will, upon
receipt of reasonable notice from Moody's demonstrate to Moody's the
calculation by Party A of the mark-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 Moody's (which, for
the avoidance of doubt, will be no less than 30 days) arrange a third
party valuation of the mark-to-market value of the outstanding
Transactions.
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"MOODY'S CRITERIA" means that the Collateral Amount will not exceed the
sum of (a) the product of A and the mark-to-market value of the
outstanding Transactions as determined by Party A in good faith on each
Local Business Day and (b) the product of B and the current aggregate
notional amounts of the outstanding Transactions, where:
(1) "A" means 102% and "B" means 1.6% if the long-term, unsecured and
unsubordinated debt obligations or the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor) and
any Credit Support Provider of Party A cease to be rated as high
as "A1" or "Prime-1" respectively by Moody's;
(2) "A" means 102% and "B" means a percentage equal to or greater
than 3% (as determined by Moody's) if the long-term, unsecured
and unsubordinated debt obligations or the short-term, unsecured
and unsubordinated debt obligations of Party A (or its successor)
and any Credit Support Provider of Party A cease to be rated as
high as "A3" or "Prime-2" respectively by Moody's; and
(3) "A" means 0% and "B" means 0% in all other cases.
(v) If the long-term, unsecured and unsubordinated debt obligations of Party
A's Credit Support Provider (or its successor) cease to be rated at
least as high as "A+" (or its equivalent) by Fitch Ratings Ltd ("FITCH")
and, as a result of such cessation, the then current rating of the
Series 2 Class [A/B/C] Seventh Issuer Notes is downgraded or placed
under review for possible downgrade by Fitch (an "INITIAL FITCH RATING
EVENT") then Party A will, on a reasonable efforts basis within 30 days
of the occurrence of such Initial Fitch Rating Event, at its own cost,
either:
(A) put in place an appropriate mark-to-market collateral agreement
(which may be based on the credit support documentation published
by ISDA, or otherwise, and relates to collateral in the form of
cash or securities or both to be posted on a weekly basis) in
support of its obligations under this Agreement provided that (x)
the Collateral Amount will be determined on a basis which
satisfies (but is no more onerous than) the Fitch Criteria (as
defined below), and (y) the Collateral Amount will not be
required to exceed such amount as would be required (in
accordance with the Fitch Criteria) to maintain or restore the
rating of the Series 2 Class [A/B/C] Seventh Issuer Notes at or
to the level it would have been at immediately prior to 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 2
Class [A/B/C] Seventh Issuer Notes by Fitch at, or restore the
rating of the Series 2 Class [A/B/C] Seventh 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 2 Class [A/B/C]
Seventh Issuer Notes at, or restore the rating of the Series 2
Class [A/B/C] Seventh Issuer Notes to, the level it would have
been at immediately prior to such Initial Fitch Rating Event); or
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(D) take such other action as Party A may agree with Fitch as will
result in the rating of the Series 2 Class [A/B/C] Seventh 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 the long-term, unsecured and unsubordinated debt obligations of the
Credit Support Provider of Party A (or its successor) cease to be rated
at least as high as "BBB+" (or its equivalent) by Fitch and, as a result
of such cessation, the then current rating of the Series 2 Class B
Seventh 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) continue to comply with the terms of, or, within 30 days of the
occurrence of such First Subsequent Fitch Rating Event and at its
own cost, put in place, as the case may be, a mark-to-market
collateral agreement as described in paragraph (v)(A) above and
provide any collateral required to be provided thereunder,
provided that in either case the mark-to-market calculations and
the correct and timely posting of collateral thereunder are
verified by an independent third party (with the costs of such
independent verification being borne by Party A); or
(B) 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 2 Class B Seventh Issuer Notes by Fitch at, or
restore the rating of the Series 2 Class B Seventh 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 2 Class B Seventh Issuer Notes at, or
restore the rating of the Series 2 Class B Seventh 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 2 Class B Seventh
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 mark-to-
32
market collateral agreement put in place in accordance with paragraph
(v)(A) above or paragraph (vi)(A) will be transferred to Party A and
Party A will not be required to transfer any additional collateral.
(vii) If the long-term, unsecured and unsubordinated debt obligations of Party
A's Credit Support Provider (or its successor) cease to be rated at
least as high as "BBB-" (or its equivalent) by Fitch and, as a result of
such cessation, the then current rating of the Series 2 Class [A/B/C]
Seventh 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 2 Class [A/B/C] Seventh Issuer Notes by Fitch
at, or restore the rating of the Series 2 Class [A/B/C]
Seventh 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 2 Class [A/B/C] Seventh Issuer Notes
at, or restore the rating of the Series 2 Class [A/B/C]
Seventh 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 2 Class [A/B/C]
Seventh 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 continue to comply with the terms of any
mark-to-market collateral agreement put in place in accordance
with paragraph (v)(A) or (vi) above or, within 10 days of the
occurrence of the Second Subsequent Fitch Rating Event and at its
own cost, put in place such an agreement (provided that the
mark-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 mark-to-market collateral
arrangement will be transferred to Party A and Party A will not be
required to transfer any additional collateral.
"FITCH CRITERIA" means that the Collateral Amount will equal the greater
of (a) the sum of (i) 1.05 multiplied by the current aggregate notional
principal or currency amounts in respect of Party A under the
outstanding Transactions multiplied by the Volatility
33
Cushion and (ii) the mark-to-market value of the outstanding
Transactions as determined by Party A in good faith on each Local
Business Day and (b) zero.
"VOLATILITY CUSHION" means the applicable percentage determined in
accordance with Appendix 2 to Fitch's Structured Finance Criteria Report
entitled "Counterparty Risk in Structured Finance Transactions: Swap
Criteria" dated 13th September, 2004, as amended and supplemented from
time to time.
(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 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 a mark-to-market collateral
arrangement put in place 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 thirtieth day following the Subsequent S&P Rating
Event with Party A as the sole Affected Party and all
Transactions as Affected Transactions.
(C) If Party A does not take any of the measures described in
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 Moody's 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 Moody's Rating Event
(or, if Party A has put in place a collateral agreement 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 Moody's 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
34
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 (except a failure to comply with the terms of
an already existing mark-to-market collateral agreement) 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
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 a
mark-to-market collateral agreement or, as the case may be, put
in place such an agreement within 10 days of the occurrence of
the Second Subsequent Fitch Rating Event, 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 tenth day after receiving notice
of failure to use reasonable efforts 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 putting in place such credit support documentation,
including agreeing to such arrangements in such documentation as may satisfy
S&P, Moody's and/or Fitch, as applicable, with respect to the operation and
management of the collateral and entering into such documents as may reasonably
be requested by Party A in connection with the provision of such collateral.
35
(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
Moody's 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 Moody's 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 Moody's 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 Moody's and "A+" by Fitch (or its equivalent
by any substitute rating agency);
(ii) the Rating Agencies have confirmed that the transfer will not result in
the then current rating of the Series 2 Class [A/B/C] Seventh 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.
36
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.
(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
37
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 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,
38
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,
set-off 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 set-off, 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 Tax credit,
allowance or set-off 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 Seventh 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 Seventh 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 Seventh Issuer Deed of
Charge.
39
(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 Seventh Issuer Available
Funds, but always subject to the order of priority of payments set out
in the Seventh Issuer Cash Management Agreement and the Seventh 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 Seventh 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.
(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
Moody's), "A-1+" (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) 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
40
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 Moody's and the short-term, unsecured and
unsubordinated debt obligations of the Reference Market-maker are
rated not less than "Prime-1" by Moody's 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 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.
41
(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) Act 1999 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.
(s) AGENCY REPRESENTATION
In the case of Party A, Swiss Re Capital Markets Limited ("SRCML") possesses the
full power and authority to enter into any transaction on behalf of Party A
under this Agreement, and any action taken or purported to be taken by SRCML
under this Agreement on behalf of Party A shall be binding on Party A.
Notwithstanding the foregoing, SRCML shall not have any obligations or
liabilities in connection with this Agreement or the Transactions hereunder, and
the Transactions and any related collateral provided pursuant to a Credit
Support Document shall have no relation to the assets and liabilities of SRCML
or of any entity that is affiliated with SRCML, other than Party A.
SERIES 2 CLASS B CONFIRMATION
From: Swiss Re Financial Products Corporation
55 East 52/nd/ Street
39/th/ Floor
New York
NY 10055
USA
To: Permanent Financing (No.7) PLC
Blackwell House
Guildhall Yard
London
EC2V 5AE
Attention: The Secretary
To: The Bank of New York
One Canada Square
London
E14 5AL
Attention: Global Structured Finance - Corporate Trust
[{circle}], 2005
Dear Sirs,
CONFIRMATION - SERIES 1 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
42
"CONFIRMATION" as referred to in the 1992 ISDA Master Agreement
(Multicurrency-Cross Border) (Series 2 Class B) entered into between us, you and
The Bank of New York (the "SECURITY TRUSTEE") dated as of [{circle}], 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: Swiss Re Financial Products Corporation
Party B: Permanent Financing (No.7) PLC
Trade Date: [{circle}], 2005
Effective Date: [{circle}], 2005
Termination Date: The earlier of the Quarterly Interest
Payment Date falling in [June 2042] and
the date on which all of the Series 2
Class B Seventh Issuer Notes are
redeemed in full.
Dollar Currency Exchange Rate: [{circle}] 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 2 Class B Seventh 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 [June
2005] up to the Termination Date, and
the Termination Date.
43
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: [{circle}] per cent. for Party A
Calculation Periods commencing prior to
the Quarterly Interest Payment Date
falling in [December 2011] and
[{circle}] 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 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 [June
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: 0.12250 per cent. for Party B
Calculation Periods commencing prior to
the Quarterly Interest Payment Date
falling in [December 2011] and
[{circle}] 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 [{circle}]
Party B Initial
Exchange Amount: USD [54,100,000]
Interim Exchange:
44
Interim Exchange Dates: Each Quarterly Interest Payment Date
(other than the Termination Date) on
which any of the Series 2 Class B
Seventh 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 2 Class B Seventh
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.
Final Exchange:
Final Exchange Date: Termination Date
Party A Final Exchange Amount: The Dollar equivalent of the Party B
Final Exchange Amount or, if less, the
amount of principal available for
payment to Party A pursuant to the
Seventh Issuer Cash Management Agreement
for purposes of making payment under the
Series 2 Class B Seventh Issuer Notes,
converted by reference to the Dollar
Currency Exchange Rate.
Party B Final Exchange Amount: An amount in Sterling equal to the
principal amount outstanding of the
Series 2 Class B Seventh 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.
2. Deferral of Floating Amounts:
If any payment of interest under the Series 2 Class B Seventh Issuer
Notes is deferred in accordance with the terms and conditions of the
Series 2 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 subject to further deferral (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 subject to further deferral (together with
an additional floating amount
45
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 2
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 2
Class B Seventh Issuer Notes, all or a corresponding part as determined
by the Calculation Agent of the Party A Floating Amounts and a pro rata
part as determined by the Calculation Agent of the Party B Floating
Amounts otherwise payable will be deferred.
The amount so deferred on the Party A Floating Amount will be payable on
the next Party A Payment Date subject to further deferral (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 subject to further deferral (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: [JP Morgan Chase Bank, New York
ABA Number: 021000021
Account Name: Swiss Re Financial Products
Corporation
Account Number: 066-911184]
Payments to Party A
in Sterling: Bank: [JP Morgan Chase Bank, London
Branch
Swift: CHASGB2L
Account Number: 2449 2904
Sort Code: 60-92-42
Account Name: Swiss Re Financial Products
Corporation]
46
Payments to Party B
in Dollars: Bank: Citibank, N.A., New York
Credit Account: 10990765
New York Swift: CITIUS33
FAO: Citibank, N.A., London
London Swift: CITIGB2L
Reference: GATS "Permanent Financing (No.7)
PLC"
Payments to Party B
in Sterling: Bank: The Governor and Company of the
Bank of Scotland
Account Number: 06000056
Sort Code: 12-24-55
Account Name: Permanent Financing (No.7) 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 Seventh 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 Seventh Issuer Cash Manager acting on its behalf, will
notify Party A of the amount of principal payments to be made on the
Series 2 Class B Seventh 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: Swiss Re Financial Products Corporation
Address: 55 East 52/nd/ Street
39/th/ Floor
New York
NY 10055
USA
47
Facsimile No.: +1 212 317 5335
Attention: Head of Operations
Party B: Permanent Financing (No.7) PLC
Address: Blackwell House
Guildhall Yard
London
EC2V 5AE
Facsimile Number: 020 7566 0975
Attention: The Secretary
With a copy to: (i) the Security Trustee:
Name: The Bank of New York
Address: One Canada Square
London
E14 5AL
Facsimile Number: 020 7964 6061/6399
Attention: Global Structured Finance
(ii) HBOS Treasury Services plc
Address: 33 Old Broad Street
London
EC2N 1HZ
Facsimile Number: 020 7574 8784
Attention: Head of Capital Markets and Securitisation
Yours faithfully,
SWISS RE FINANCIAL PRODUCTS CORPORATION
By:
Name:
Title:
Confirmed as of the date first written:
48
PERMANENT FINANCING (NO.7) PLC
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
49