EXHIBIT 4.9
Draft (3): 31st May, 2005 GRAPHIC OMITTED
ALLEN & OVERY LLP
EIGHTH ISSUER CASH MANAGEMENT
AGREEMENT
HALIFAX plc
and
PERMANENT FINANCING (NO. 8) PLC
and
THE BANK OF NEW YORK
[22nd] June, 2005
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation................................................ 1
2. Appointment of Eighth Issuer Cash Manager..................................... 1
3. Eighth Issuer Cash Management Services........................................ 2
4. Payments, Accounts, Ledgers................................................... 3
5. Payments under Eighth Issuer Swap Agreements, Payments to the Principal Paying 5
Agents and Termination of Eighth Issuer Swap Agreements.......................
6. No Liability.................................................................. 7
7. Costs and Expenses............................................................ 7
8. Information................................................................... 7
9. Remuneration.................................................................. 9
10. Covenants of Eighth Issuer Cash Manager....................................... 9
11. Non-Exclusivity............................................................... 10
12. Termination................................................................... 10
13. Further Assurance............................................................. 12
14. Miscellaneous................................................................. 13
15. Confidentiality............................................................... 14
16. Notices....................................................................... 14
17. Variation and Waiver.......................................................... 15
18. No Partnership................................................................ 15
19. Assignment.................................................................... 15
20. Exclusion of Third Party Rights............................................... 15
21. Counterparts.................................................................. 15
22. Governing Law................................................................. 16
23. Submission to Jurisdiction.................................................... 16
SCHEDULE
1. Cash Management Services...................................................... 17
2. Cash Management and Maintenance of Ledgers.................................... 19
3. Form of Eighth Issuer Quarterly Report........................................ 25
Signatories................................................................................ 26
THIS EIGHTH ISSUER CASH MANAGEMENT AGREEMENT is made on [22nd] June, 2005
BETWEEN:
(1) HALIFAX PLC, a public limited company incorporated under the laws of
England and Wales whose registered office is at Trinity Road, Halifax,
West Yorkshire HX1 2RG (acting in its capacity as the EIGHTH ISSUER CASH
MANAGER);
(2) PERMANENT FINANCING (NO. 8) PLC, a public limited company incorporated
under the laws of England and Wales (registered number 5434519) whose
registered office is at 35 Great St. Helen's, London EC3A 6AP (the EIGHTH
ISSUER); and
(3) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 48th Floor, One Canada Square, London E14 5AL (acting in
its capacity as SECURITY TRUSTEE).
WHEREAS:
(A) On the Eighth Issuer Closing Date the Eighth Issuer will issue the Eighth
Issuer Notes. The Eighth Issuer will make the Eighth Issuer Term Advances
to Funding 1 from the proceeds of the issue of the Eighth Issuer Notes.
(B) The Eighth Issuer Cash Manager is willing to provide cash management
services to the Eighth Issuer and the Security Trustee on the terms and
subject to the conditions contained in this Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated [22nd]
June, 2005 (as the same may be amended, varied or supplemented from time
to time with the consent of the parties to this Agreement) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the eighth issuer master
definitions and construction schedule, signed for the purposes of
identification by Allen & Overy LLP and Sidley Austin Brown & Wood on
[22nd] June, 2005 (as the same may be amended, varied or supplemented
from time to time) (the EIGHTH ISSUER MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) are expressly and specifically incorporated into this Agreement
and, accordingly, the expressions defined in the Master Definitions and
Construction Schedule and the Eighth Issuer Master Definitions and
Construction Schedule shall, except where the context otherwise requires
and save where otherwise defined herein, have the same meanings in this
Agreement, including the Recitals hereto, and this Agreement shall be
construed in accordance with the interpretation provisions set out in
CLAUSE 2 of the Eighth Issuer Master Definitions and Construction
Schedule and the Master Definitions and Construction Schedule.
2. APPOINTMENT OF EIGHTH ISSUER CASH MANAGER
2.1 APPOINTMENT
Until termination pursuant to CLAUSE 12, the Eighth Issuer and the
Security Trustee (according to their respective estates and interests)
each hereby appoints the Eighth Issuer Cash Manager as its lawful agent
to provide the Eighth Issuer Cash Management Services set out in this
Agreement. The Eighth Issuer Cash Manager in each case hereby accepts
such appointment on the terms and subject to the conditions of this
Agreement.
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2.2 DUTIES PRESCRIBED BY TRANSACTION DOCUMENTS
For the avoidance of doubt and in connection with the powers conferred
under CLAUSE 2.1, save as expressly provided elsewhere in this Agreement
nothing in this Agreement shall be construed so as to give the Eighth
Issuer Cash Manager any powers, rights, authorities, directions or
obligations other than as specified in this Agreement or any of the other
Eighth Issuer Transaction Documents.
2.3 APPOINTMENT CONDITIONAL UPON ISSUANCE OF EIGHTH ISSUER NOTES
The appointment pursuant to CLAUSE 2.1 is conditional upon the issue of
the Eighth Issuer Notes and shall take effect upon and from the Eighth
Issuer Closing Date automatically without any further action on the part
of any person PROVIDED THAT if the issue of the Eighth Issuer Notes has
not occurred by [22nd] June, 2005, or such later date as the Eighth
Issuer and the Lead Managers may agree, this Agreement shall cease to be
of further effect.
3. EIGHTH ISSUER CASH MANAGEMENT SERVICES
3.1 GENERAL
The Eighth Issuer Cash Manager shall provide the services set out in this
Agreement (including, for the avoidance of doubt, the Schedules) (the
EIGHTH ISSUER CASH MANAGEMENT SERVICES).
3.2 APPROVALS AND AUTHORISATIONS
The Eighth Issuer Cash Manager shall maintain, or procure the maintenance
of, the approvals, authorisations, consents and licences required in
connection with the business of the Eighth Issuer and shall prepare and
submit, or procure the preparation and submission of, on behalf of the
Eighth Issuer all necessary applications and requests for any further
approvals, authorisations, consents or licences which may be required in
connection with the business of the Eighth Issuer and shall, so far as it
is reasonably able to do so, perform the Eighth Issuer Cash Management
Services in such a way as not to prejudice the continuation of any such
approvals, authorisations, consents or licences.
3.3 COMPLIANCE WITH TRANSACTION DOCUMENTS, ETC.
The Eighth Issuer Cash Management Services shall include procuring (so
far as the Eighth Issuer Cash Manager, using its reasonable endeavours,
is able so to do) compliance by the Eighth Issuer with all applicable
legal requirements and with the terms of the Eighth Issuer Transaction
Documents, PROVIDED ALWAYS THAT the Eighth Issuer Cash Manager shall not
lend or provide any sum to the Eighth Issuer and that the Eighth Issuer
Cash Manager shall have no liability whatsoever to the Eighth Issuer, the
Security Trustee or any other person for any failure by the Eighth Issuer
to make any payment due under any of the Eighth Issuer Transaction
Documents (other than to the extent arising from any failure by the
Eighth Issuer Cash Manager to perform any of its obligations under any of
the Eighth Issuer Transaction Documents).
3.4 LIABILITY OF EIGHTH ISSUER CASH MANAGER
(a) The Eighth Issuer Cash Manager shall indemnify each of the Eighth Issuer
and the Security Trustee on demand on an after Tax basis for any loss,
liability, claim, expense or damage suffered or incurred by it in respect
of the negligence, fraud or wilful default of the Eighth Issuer Cash
Manager in carrying out its functions as Eighth Issuer Cash Manager
under, or as a result of a breach by the Eighth Issuer Cash Manager of,
the terms and provisions of this Agreement or such other Eighth Issuer
Transaction Documents to which the Eighth Issuer Cash Manager is a party
(in its capacity as such) in relation to such functions.
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(b) For the avoidance of doubt, the Eighth Issuer Cash Manager shall not be
liable in respect of any loss, liability, claim, expense or damage
suffered or incurred by the Eighth Issuer or the Security Trustee and/or
any other person as a result of the proper performance of the Eighth
Issuer Cash Management Services by the Eighth Issuer Cash Manager save to
the extent that such loss, liability, claim, expense or damage is
suffered or incurred as a result of any negligence, fraud or wilful
default of the Eighth Issuer Cash Manager under, or as a result of a
breach by the Eighth Issuer Cash Manager of, the terms and provisions of
this Agreement or any of the other Eighth Issuer Transaction Documents to
which the Eighth Issuer Cash Manager is a party (in its capacity as such)
in relation to such functions.
4. PAYMENTS, ACCOUNTS, LEDGERS
4.1 EIGHTH ISSUER TRANSACTION ACCOUNT
(a) The Eighth Issuer Cash Manager hereby confirms that the Eighth Issuer
Transaction Account has been established on or before the date of this
Agreement and that the mandate in the agreed form will apply to this
Agreement at the Eighth Issuer Closing Date. The Eighth Issuer Cash
Manager undertakes (to the extent to which the same is within its control
in its capacity as Eighth Issuer Cash Manager) that at the Eighth Issuer
Closing Date the Eighth Issuer Transaction Account will be operative and
that the Eighth Issuer Cash Manager will not knowingly create or permit
to subsist any Security Interest in relation to the Eighth Issuer
Transaction Account other than as created under or permitted pursuant to
the Eighth Issuer Deed of Charge.
(b) The Eighth Issuer Cash Manager shall procure that the following amounts
are paid into the Eighth Issuer Transaction Account:
(i) all amounts of interest paid on the Eighth Issuer Term Advances;
(ii) all repayments of principal on the Eighth Issuer Term Advances;
(iii) all amounts received by the Eighth Issuer pursuant to the Eighth
Issuer Swap Agreements (excluding the return or transfer of any
Excess Swap Collateral as set out in the relevant Eighth Issuer
Swap Agreement and in respect of each Eighth Issuer Swap Provider,
prior to the designation of an early termination date under the
relevant Eighth Issuer Swap Agreement and the resulting application
of the collateral by way of netting or set-off, an amount equal to
the value of all collateral (other than Excess Swap Collateral)
provided by such Eighth Issuer Swap Provider to the Eighth Issuer
pursuant to the relevant Eighth Issuer Swap Agreement (and any
interest or distributions in respect thereof)); and
(iv) any other amounts whatsoever received by or on behalf of the Eighth
Issuer after the Eighth Issuer Closing Date,
and the Eighth Issuer Cash Manager shall procure that all interest earned
on the Eighth Issuer Transaction Account and all investment proceeds from
and income and distributions arising from time to time in respect of
Authorised Investments purchased from amounts standing to the credit of
the Eighth Issuer Transaction Account are credited to such account.
(c) Each of the payments into the Eighth Issuer Transaction Account referred
to in CLAUSE 4.1(B) shall be made forthwith upon receipt by the Eighth
Issuer or the Eighth Issuer Cash Manager of the amount in question.
(d) For the avoidance of doubt, as soon as reasonably practicable after
becoming aware of the same, the Eighth Issuer Cash Manager may, and
shall, withdraw Cash from the Eighth Issuer Transaction
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Account if, and to the extent that, such Cash was credited thereto in
error and shall use its reasonable endeavours to ensure that such Cash is
applied correctly thereafter.
(e) The Eighth Issuer Cash Manager shall promptly notify each of the Eighth
Issuer and the Security Trustee in writing of any additional account
which supplements or replaces any account specifically referred to in the
definition of the Eighth Issuer Transaction Account in the Eighth Issuer
Master Definitions and Construction Schedule.
(f) Each of the Eighth Issuer Cash Manager and the Eighth Issuer undertakes
that, so far as it is able to procure the same, the Eighth Issuer
Transaction Account and all instructions and mandates in relation thereto
will continue to be operative and will not, save as permitted pursuant to
the Eighth Issuer Bank Account Agreement, be changed without the prior
written consent of the Security Trustee (such consent not to be
unreasonably withheld or delayed). For the avoidance of doubt, the Eighth
Issuer Cash Manager may change the authorised signatories in respect of
any instructions or mandates without the prior written consent of the
Security Trustee, in accordance with the terms of the Eighth Issuer Bank
Account Agreement.
4.2 ADDITIONAL EIGHTH ISSUER ACCOUNTS
(a) If established, the Eighth Issuer Cash Manager will not knowingly create
or permit to subsist any Security Interest in relation to any Additional
Eighth Issuer Account other than as created under or permitted pursuant
to the Eighth Issuer Deed of Charge.
(b) The Eighth Issuer Cash Manager shall procure that the relevant amounts
are paid into the applicable Eighth Issuer Account and the Eighth Issuer
Cash Manager shall procure that all interest earned on the relevant
Additional Eighth Issuer Account and all investment proceeds from and
income and distributions arising from time to time in respect of
Authorised Investments purchased from amounts standing to the credit of
an Additional Eighth Issuer Account are credited to such account.
(c) Each of the payments into the Additional Eighth Issuer Account referred
to in CLAUSE 4.2(B) shall be made forthwith upon receipt by the Eighth
Issuer or the Eighth Issuer Cash Manager of the amount in question.
(d) For the avoidance of doubt, as soon as reasonably practicable after
becoming aware of the same, the Eighth Issuer Cash Manager may, and
shall, withdraw Cash from an Additional Eighth Issuer Account if, and to
the extent that, such Cash was credited thereto in error and shall use
its reasonable endeavours to ensure that such Cash is applied correctly
thereafter.
(e) The Eighth Issuer Cash Manager shall promptly notify each of the Eighth
Issuer and the Security Trustee in writing of any additional account
which is established pursuant to CLAUSE 3.1 of the Eighth Issuer Bank
Account Agreement or any account established to replace or supplement
such account.
(f) Each of the Eighth Issuer Cash Manager and the Eighth Issuer undertakes
that, so far as it is able to procure the same, the Additional Eighth
Issuer Accounts and all instructions and mandates in relation thereto
will continue to be operative and will not, save as permitted pursuant to
the Eighth Issuer Bank Account Agreement, be changed without the prior
written consent of the Security Trustee (such consent not to be
unreasonably withheld or delayed). For the avoidance of doubt, the Eighth
Issuer Cash Manager may change the authorised signatories in respect of
any instructions or mandates without the prior written consent of the
Security Trustee, in accordance with the terms of the Eighth Issuer Bank
Account Agreement.
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4.3 WITHDRAWALS
(a) The Eighth Issuer Cash Manager may make withdrawals on behalf of the
Eighth Issuer from an Eighth Issuer Account, until such time as the
Eighth Issuer Cash Manager receives a copy of an Eighth Issuer Note
Acceleration Notice served by the Security Trustee on the Eighth Issuer,
as permitted by this Agreement, but shall not in carrying out its
functions as Eighth Issuer Cash Manager under this Agreement otherwise
make withdrawals from an Eighth Issuer Account.
(b) Upon receipt of such an Eighth Issuer Note Acceleration Notice, no amount
shall be withdrawn from the Eighth Issuer Accounts by the Eighth Issuer
Cash Manager without the prior written consent of the Security Trustee.
4.4 CASH MANAGEMENT
In administering the Eighth Issuer Accounts on behalf of the Eighth
Issuer and the Security Trustee, the Eighth Issuer Cash Manager shall
comply with the provisions of Schedule 2 prior to receipt by the Eighth
Issuer Cash Manager of a copy of any Eighth Issuer Note Acceleration
Notice served on the Eighth Issuer. Following service of an Eighth Issuer
Note Acceleration Notice, the Security Trustee or any Receiver appointed
by the Security Trustee will administer the Eighth Issuer Accounts in
accordance with the terms of the Eighth Issuer Deed of Charge.
5. PAYMENTS UNDER EIGHTH ISSUER SWAP AGREEMENTS, PAYMENTS TO THE PRINCIPAL
PAYING AGENTS AND TERMINATION OF EIGHTH ISSUER SWAP AGREEMENTS
5.1 On each Funding 1 Interest Payment Date, the Eighth Issuer or the Eighth
Issuer Cash Manager on its behalf will procure that amounts received from
Funding 1 under the Eighth Issuer Intercompany Loan Agreement are paid
into the Eighth Issuer Transaction Account.
5.2 The Eighth Issuer, or the Eighth Issuer Cash Manager on its behalf, will
procure that:
(a) on each Funding 1 Interest Payment Date subject to making payments
ranking higher in the order of priorities of payment set out in the
Eighth Issuer Pre-Enforcement Priority of Payments or, as the case
may be, the Eighth Issuer Post-Enforcement Priority of Payments,
amounts received in respect of:
(i) the Eighth Issuer Series 1 Term Advances are paid to the
relevant Series 1 Eighth Issuer Swap Provider or if such Eighth
Issuer Swap Agreement has been terminated and the Eighth Issuer
is unable to enter into a replacement hedge as set out in
CLAUSE 5.4, into the relevant Additional Eighth Issuer Account;
(ii)the Eighth Issuer Series 2 Term Advances are paid to the
relevant Series 2 Eighth Issuer Swap Provider or if such Eighth
Issuer Swap Agreement has been terminated and the Eighth Issuer
is unable to enter into a replacement hedge as set out in
CLAUSE 5.4, into the relevant Additional Eighth Issuer Account;
(iii) the Eighth Issuer Series 3 Term Advances are paid to the
relevant Series 3 Eighth Issuer Swap Provider or if such
Eighth Issuer Swap Agreement has been terminated and the
Eighth Issuer is unable to enter into a replacement hedge
as set out in CLAUSE 5.4, into the relevant Additional
Eighth Issuer Account;
(iv)the Eighth Issuer Series 4 Term Advances are paid to the
relevant Series 4 Eighth Issuer Swap Provider or if such Eighth
Issuer Swap Agreement has been terminated
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and the Eighth Issuer is unable to enter into a replacement hedge
as set out in CLAUSE 5.4, into the relevant Additional Eighth
Issuer Account;
(b) on each relevant Interest Payment Date:
(i) amounts received from each Eighth Issuer Swap Provider under
the relevant Eighth Issuer Swap Agreement are paid to the
Principal Paying Agent, which amounts shall be paid by the
Paying Agents (subject to the terms of the Eighth Issuer Paying
Agent and Agent Bank Agreement) to the holders of the
corresponding classes of Eighth Issuer Notes; and/or
(ii)amounts standing to the credit of the relevant Additional
Eighth Issuer Account are, if applicable, exchanged at the
"spot" rate from sterling into Euro or US Dollars, as necessary
and, paid to the Principal Paying Agent, which amounts shall be
paid by the Paying Agents (subject to the terms of the Eighth
Issuer Paying Agent and Agent Bank Agreement) to the holders of
the corresponding classes of Eighth Issuer Notes.
5.3 The Eighth Issuer, or the Eighth Issuer Cash Manager on its behalf, will
procure that on each Interest Payment Date (subject to making payments
ranking higher in the order of priorities of payment set out in the
Eighth Issuer Pre-Enforcement Priority of Payments or, as the case may
be, the Eighth Issuer Post-Enforcement Priority of Payments), amounts
received from Funding 1 in respect of the Eighth Issuer Series 5A1 Term
AAA Advance and the Eighth Issuer Series 5A2 Term AAA Advance are paid to
the Principal Paying Agent, which amounts shall be paid by the Paying
Agents (subject to the terms of the Eighth Issuer Paying Agent and Agent
Bank Agreement) to the holders of the corresponding class of the Series 5
Eighth Issuer Notes.
5.4 If on or prior to the date of the earlier of (i) repayment in full of the
Eighth Issuer Notes or (ii) the service of an Eighth Issuer Note
Acceleration Notice, any of the Eighth Issuer Swaps are terminated, the
Eighth Issuer Cash Manager (on behalf of the Eighth Issuer and the
Security Trustee) shall purchase a replacement hedge (taking into account
any early termination payment received from the relevant Eighth Issuer
Swap Provider) in respect of the relevant class of Eighth Issuer Notes,
against, as appropriate:
(a) fluctuations in the relevant currency swap rate between Dollars and
Sterling or the possible variance between LIBOR for three-month
Sterling deposits and either:
(i) LIBOR for one-month Dollar deposits (in relation to the Series
1 Class A Eighth Issuer Notes); or
(ii)LIBOR for three-month Dollar deposits (in relation to the
Series 1 Class B Eighth Issuer Notes, the Series 1 Class C
Eighth Issuer Notes, the Series 2 Eighth Issuer Notes and the
Series 3 Eighth Issuer Notes);
or
(b) fluctuations in the relevant currency swap rate between Euro and
Sterling or the possible variance between LIBOR for three-month
Sterling deposits and EURIBOR for three-month Euro deposits (in
relation to the Series 4 Eighth Issuer Notes)
in each case, on terms acceptable to the Rating Agencies and the Eighth
Issuer and the Security Trustee and with a swap provider whom the Rating
Agencies have previously confirmed in writing to the Eighth Issuer and
the Security Trustee will not cause the then current ratings of the
Eighth Issuer Notes to be downgraded.
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5.5 If the Eighth Issuer receives a Refund Payment (as such term is defined
in the definition of Eighth Issuer Revenue Receipts) then the Eighth
Issuer, or the Eighth Issuer Cash Manager on its behalf, will distribute
such Refund Payment as part of the Eighth Issuer Revenue Receipts in
accordance with the relevant priority of payments.
6. NO LIABILITY
Save as otherwise provided in this Agreement, the Eighth Issuer Cash
Manager shall have no liability for the obligations of either the
Security Trustee or the Eighth Issuer under any of the Transaction
Documents or otherwise and nothing in this Agreement shall constitute a
guarantee, or similar obligation, by the Eighth Issuer Cash Manager of
either Funding 1, the Security Trustee or the Eighth Issuer in respect of
any of them.
7. COSTS AND EXPENSES
Subject to and in accordance with the Eighth Issuer Pre-Enforcement
Priority of Payments or, as the case may be, the Eighth Issuer Post-
Enforcement Priority of Payments, the Eighth Issuer will on each Interest
Payment Date reimburse the Eighth Issuer Cash Manager for all out-of-
pocket costs, expenses and charges (together with any amounts in respect
of Irrecoverable VAT due thereon) properly incurred by the Eighth Issuer
Cash Manager in the performance of the Eighth Issuer Cash Management
Services including any such costs, expenses or charges not reimbursed to
the Eighth Issuer Cash Manager on any previous Interest Payment Date and
the Eighth Issuer Cash Manager shall supply the Eighth Issuer with an
appropriate VAT invoice issued by the Eighth Issuer Cash Manager or, if
the Eighth Issuer Cash Manager has treated the relevant cost, expense or
charge as a disbursement for VAT purposes, by the person making the
supply.
8. INFORMATION
8.1 USE OF I.T. SYSTEMS
(a) The Eighth Issuer Cash Manager represents and warrants that at the date
hereof in respect of the software which is to be used by the Eighth
Issuer Cash Manager in providing the Eighth Issuer Cash Management
Services it has in place all necessary licences and/or consents from the
respective licensor or licensors (if any) of such software.
(b) The Eighth Issuer Cash Manager undertakes that it shall for the duration
of this Agreement, use reasonable endeavours to:
(i) ensure that the licences and/or consents referred to in PARAGRAPH
(A) are maintained in full force and effect; and
(ii) except in so far as it would breach any other of its legal
obligations, grant to any person to whom it may sub-contract or
delegate the performance of all or any of its powers and
obligations under this Agreement and/or to such person as the
Eighth Issuer and the Security Trustee elect as a substitute cash
manager in accordance with the terms of this Agreement a licence to
use any proprietary software together with any updates which may be
made thereto from time to time.
(c) The Eighth Issuer Cash Manager shall use reasonable endeavours to
maintain in working order the information technology systems used by the
Eighth Issuer Cash Manager in providing the Eighth Issuer Cash Management
Services.
(d) The Eighth Issuer Cash Manager shall pass to any person to whom it may
sub-contract or delegate the performance of all or any of its powers and
obligations under this Agreement and/or to such
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person as the Eighth Issuer and the Security Trustee elect as a
substitute cash manager in accordance with the terms of this Agreement
the benefit of any warranties in relation to the software insofar as the
same are capable of assignment.
8.2 BANK ACCOUNT STATEMENTS
The Eighth Issuer Cash Manager shall take all reasonable steps to ensure
that it receives a monthly bank statement in relation to each of the
Eighth Issuer Bank Accounts (subject to CLAUSE 6.3 of the Eighth Issuer
Bank Account Agreement) and that it furnishes a copy of such statements
to the Eighth Issuer and the Security Trustee, unless otherwise agreed.
8.3 ACCESS TO BOOKS AND RECORDS
Subject to all applicable laws, the Eighth Issuer Cash Manager shall
permit the Auditors of the Eighth Issuer and any other person nominated
by the Security Trustee (to whom the Eighth Issuer Cash Manager has no
reasonable objection) at any time during normal office hours upon
reasonable notice to have access, or procure that such person or persons
are granted access, to all books of record and account relating to the
Eighth Issuer Cash Management Services provided by the Eighth Issuer Cash
Manager and related matters in accordance with this Agreement.
8.4 STATUTORY OBLIGATIONS
The Eighth Issuer Cash Manager will use its reasonable endeavours, on
behalf of the Eighth Issuer, to prepare or procure the preparation of and
file all reports, annual returns, financial statements, statutory forms
and other returns which the Eighth Issuer is required by law to prepare
and file. Subject to approval thereof by the directors of the Eighth
Issuer, the Eighth Issuer Cash Manager shall cause such accounts to be
audited by the Auditors and shall procure so far as it is able so to do
that the Auditors shall make a report thereon as required by law and
copies of all such documents shall be delivered to the Security Trustee,
the Eighth Issuer and the Rating Agencies as soon as practicable after
the end of each accounting reference period of the Eighth Issuer.
8.5 INFORMATION COVENANTS
(a) The Eighth Issuer Cash Manager shall provide the Eighth Issuer, the
Security Trustee, the Seller and the Rating Agencies with a quarterly
report substantially in the form set out in SCHEDULE 3, or in such other
form reasonably acceptable to the recipients thereof, in respect of the
Eighth Issuer. Each such quarterly report shall be delivered to the
Eighth Issuer, the Security Trustee, the Seller and the Rating Agencies
by the last Business Day of the month in which each Interest Payment Date
occurs.
(b) The Eighth Issuer Cash Manager shall provide, or procure the provision
of, to the Eighth Issuer, the Security Trustee and the Rating Agencies
copies of any annual returns or financial statements referred to in
CLAUSE 8.4 as soon as reasonably practicable after the preparation
thereof upon the request of any such person.
(c) The Eighth Issuer Cash Manager shall notify the Rating Agencies in
writing of the details of:
(i) any material amendment to the Eighth Issuer Transaction Documents;
(ii) the occurrence of an Eighth Issuer Note Event of Default; and
(iii) any other information relating to the Eighth Issuer Cash Manager as
the Rating Agencies may reasonably request in connection with its
obligations under this Agreement, PROVIDED THAT such request does
not adversely interfere with the Eighth Issuer Cash
8
Manager's day-to-day provision of the Eighth Issuer Cash Management
Services under the other terms of this Agreement.
(d) The Eighth Issuer Cash Manager shall, at the request of the Security
Trustee, furnish the Security Trustee and the Rating Agencies with such
other information relating to its business and financial condition as it
may be reasonable for the Security Trustee to request in connection with
this Agreement PROVIDED THAT the Security Trustee shall not make such a
request more than once every three months unless, in the belief of the
Security Trustee, an Eighth Issuer Intercompany Loan Event of Default,
Eighth Issuer Note Event of Default or Eighth Issuer Cash Manager
Termination Event (as defined in CLAUSE 12.1) shall have occurred and is
continuing or may reasonably be expected to occur and PROVIDED FURTHER
THAT such request does not adversely interfere with the Eighth Issuer
Cash Manager's day-to-day provision of the Eighth Issuer Cash Management
Services under the other terms of this Agreement.
9. REMUNERATION
9.1 FEE PAYABLE
The Eighth Issuer shall pay to the Eighth Issuer Cash Manager for the
Eighth Issuer Cash Management Services a cash management fee (which shall
be inclusive of VAT) which shall be agreed in writing between the Eighth
Issuer, the Security Trustee and the Eighth Issuer Cash Manager from time
to time.
9.2 PAYMENT OF FEE
The cash management fee referred to in CLAUSE 9.1 shall be paid to the
Eighth Issuer Cash Manager in arrear on each Quarterly Interest Payment
Date in the manner contemplated by and in accordance with the provisions
of the Eighth Issuer Pre-Enforcement Revenue Priority of Payments or, as
the case may be, the Eighth Issuer Post-Enforcement Priority of Payments.
10. COVENANTS OF EIGHTH ISSUER CASH MANAGER
10.1 COVENANTS
The Eighth Issuer Cash Manager hereby covenants with and undertakes to
each of the Eighth Issuer and the Security Trustee that without prejudice
to any of its specific obligations under this Agreement:
(a) it will devote all due skill, care and diligence to the performance of
its obligations and the exercise of its discretions under this Agreement;
(b) it will comply with any proper directions, orders and instructions which
the Eighth Issuer or the Security Trustee may from time to time give to
it in accordance with the provisions of this Agreement and, in the event
of any conflict, those of the Security Trustee shall prevail;
(c) it will use its reasonable endeavours to keep in force all licences,
approvals, authorisations and consents which may be necessary in
connection with the performance of the Eighth Issuer Cash Management
Services and prepare and submit all necessary applications and requests
for any further approval, authorisation, consent or licence required in
connection with the performance of the Eighth Issuer Cash Management
Services;
(d) save as otherwise agreed with the Eighth Issuer and the Security Trustee,
it will provide free of charge to the Eighth Issuer during normal office
hours office space, facilities, equipment and staff sufficient to fulfil
the obligations of the Eighth Issuer under this Agreement;
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(e) it will not knowingly fail to comply with any legal requirements in the
performance of the Eighth Issuer Cash Management Services;
(f) it will make all payments required to be made by it pursuant to this
Agreement on the due date for payment thereof for value on such day
without set-off (including, without limitation, in respect of any fees
owed to it) or counterclaim; and
(g) it will, not without the prior written consent of the Security Trustee,
amend or terminate any of the Eighth Issuer Transaction Documents save in
accordance with their terms.
10.2 DURATION OF COVENANTS
The covenants of the Eighth Issuer Cash Manager in CLAUSE 10.1 shall
remain in force until this Agreement is terminated but without prejudice
to any right or remedy of the Eighth Issuer and/or the Security Trustee
arising from breach of any such covenant prior to the date of termination
of this Agreement.
11. NON-EXCLUSIVITY
Nothing in this Agreement shall prevent the Eighth Issuer Cash Manager
from rendering or performing services similar to those provided for in
this Agreement to or for itself or other persons, firms or companies or
from carrying on business similar to or in competition with the business
of the Eighth Issuer or the Security Trustee.
12. TERMINATION
12.1 EIGHTH ISSUER CASH MANAGER TERMINATION EVENTS
If any of the following events (EIGHTH ISSUER CASH MANAGER TERMINATION
EVENTS) shall occur:
(a) default is made by the Eighth Issuer Cash Manager in the payment on
the due date of any payment due and payable by it under this
Agreement and such default continues unremedied for a period of
three London Business Days after the earlier of the Eighth Issuer
Cash Manager becoming aware of such default and receipt by the
Eighth Issuer Cash Manager of written notice from the Eighth Issuer
or the Security Trustee, as the case may be, requiring the same to
be remedied; or
(b) default is made by the Eighth Issuer Cash Manager in the
performance or observance of any of its other covenants and
obligations under this Agreement, which in the reasonable opinion
of the Security Trustee is materially prejudicial to the interests
of the Eighth Issuer Secured Creditors and such default continues
unremedied for a period of twenty London Business Days after the
earlier of the Eighth Issuer Cash Manager becoming aware of such
default and receipt by the Eighth Issuer Cash Manager of written
notice from the Security Trustee requiring the same to be remedied;
or
(c) while the Eighth Issuer Cash Manager is the Seller, an Insolvency
Event occurs,
then the Security Trustee may at once or at any time thereafter while
such default continues by notice in writing to the Eighth Issuer Cash
Manager terminate its appointment as Eighth Issuer Cash Manager under
this Agreement with effect from a date (not earlier than the date of the
notice) specified in the notice.
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12.2 RESIGNATION OF EIGHTH ISSUER CASH MANAGER
The appointment of the Eighth Issuer Cash Manager under this Agreement
may be terminated upon the expiry of not less than 12 months' written
notice of termination given by the Eighth Issuer Cash Manager to the
Eighth Issuer and the Security Trustee PROVIDED THAT:
(a) the Eighth Issuer and the Security Trustee consent in writing to such
termination;
(b) a substitute cash manager shall be appointed, such appointment to be
effective not later than the date of such termination;
(c) such substitute cash manager has cash management experience and is
approved by the Eighth Issuer and the Security Trustee;
(d) such substitute cash manager enters into an agreement substantially on
the same terms as the relevant provisions of this Agreement or on such
terms as are satisfactory to the Eighth Issuer and the Security Trustee
and the Eighth Issuer Cash Manager shall not be released from its
obligations under the relevant provisions of this Agreement until such
substitute cash manager has entered into such new agreement and the
rights of the Eighth Issuer under such agreement are charged in favour of
the Security Trustee on terms satisfactory to the Security Trustee; and
(e) the then current ratings (if any) of the Eighth Issuer Notes are not
adversely affected as a result thereof.
12.3 EFFECT OF TERMINATION
(a) On and after termination of the appointment of the Eighth Issuer Cash
Manager under this Agreement pursuant to this CLAUSE 12, all authority
and power of the Eighth Issuer Cash Manager under this Agreement shall be
terminated and be of no further effect and the Eighth Issuer Cash Manager
shall not thereafter hold itself out in any way as the agent of the
Eighth Issuer or the Security Trustee pursuant to this Agreement.
(b) Upon termination of the appointment of the Eighth Issuer Cash Manager
under this Agreement pursuant to this CLAUSE 12, the Eighth Issuer Cash
Manager shall:
(i) forthwith deliver (and in the meantime hold on trust for, and to
the order of, the Eighth Issuer or the Security Trustee, as the
case may be) to the Eighth Issuer or the Security Trustee, as the
case may be or as it shall direct in writing, all books of account,
papers, records, registers, correspondence and documents in its
possession or under its control relating to the affairs of or
belongings of the Eighth Issuer or the Security Trustee, as the
case may be, (if practicable, on the date of receipt) any monies
then held by the Eighth Issuer Cash Manager on behalf of the Eighth
Issuer, the Security Trustee and any other assets of the Eighth
Issuer and the Security Trustee;
(ii) take such further action as the Eighth Issuer or the Security
Trustee, as the case may be, may reasonably direct at the expense
of the Eighth Issuer or the Security Trustee, as the case may be
(including in relation to the appointment of a substitute cash
manager) provided that the Security Trustee shall not be required
to take or direct to be taken such further action unless it has
been indemnified and/or secured to its satisfaction;
(iii) provide all relevant information contained on computer records in
the form of magnetic tape, together with details of the layout of
the files encoded on such magnetic tapes; and
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(iv) co-operate and consult with and assist the Eighth Issuer or the Security
Trustee or its nominee, as the case may be, (which shall, for the
avoidance of doubt, include any Receiver appointed by it) for the
purposes of explaining the file layouts and the format of the magnetic
tapes generally containing such computer records on the computer system
of the Eighth Issuer or the Security Trustee or such nominee, as the case
may be.
12.4 NOTICE OF EVENT OF DEFAULT
The Eighth Issuer Cash Manager shall deliver to the Eighth Issuer and the
Security Trustee as soon as reasonably practicable but in any event
within three London Business Days of becoming aware thereof a notice of
any Eighth Issuer Cash Manager Termination Event or any Eighth Issuer
Note Event of Default or any event which with the giving of notice or
expiry of any grace period or certification, as specified in such Eighth
Issuer Cash Manager Termination Event or Eighth Issuer Note Event of
Default would constitute the same.
12.5 GENERAL PROVISIONS RELATING TO TERMINATION
(a) Termination of the appointment of the Eighth Issuer Cash Manager under
this Agreement shall be without prejudice to the liabilities of the
Eighth Issuer and the Security Trustee to the Eighth Issuer Cash Manager
or vice versa incurred before the date of such termination. The Eighth
Issuer Cash Manager shall have no right of set-off or any lien in respect
of such amounts against amounts held by it on behalf of the Eighth Issuer
or the Security Trustee.
(b) This Agreement shall terminate at such time as the Eighth Issuer Secured
Obligations have been fully discharged.
(c) On termination of the appointment of the Eighth Issuer Cash Manager under
the provisions of this CLAUSE 12, the Eighth Issuer Cash Manager shall be
entitled to receive all fees and other moneys accrued up to (but
excluding) the date of termination but shall not be entitled to any other
or further compensation. The Eighth Issuer shall pay such moneys so
receivable by the Eighth Issuer Cash Manager in accordance with the
Eighth Issuer Pre-Enforcement Revenue Priority of Payments or, as the
case may be, the Eighth Issuer Post-Enforcement Priority of Payments, on
the dates on which they would otherwise have fallen due hereunder. Such
termination shall not affect the Eighth Issuer Cash Manager's rights to
receive payment of all amounts (if any) due to it from the Eighth Issuer
other than under this Agreement.
(d) Any provision of this Agreement which is stated to continue after
termination of this Agreement shall remain in full force and effect
notwithstanding termination.
13. FURTHER ASSURANCE
13.1 CO-OPERATION, ETC.
The parties to this Agreement agree that they will co-operate fully to do
all such further acts and things and execute any further documents as may
be necessary or desirable to give full effect to the arrangements
contemplated by this Agreement.
13.2 POWERS OF ATTORNEY
Without prejudice to the generality of CLAUSE 13.1, the Eighth Issuer and
the Security Trustee shall upon request by the Eighth Issuer Cash Manager
forthwith give to the Eighth Issuer Cash Manager such further powers of
attorney or other written authorisations, mandates or instruments as are
necessary to enable the Eighth Issuer Cash Manager to perform the Eighth
Issuer Cash Management Services.
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13.3 CHANGE OF SECURITY TRUSTEE
In the event that there is any change in the identity of the Security
Trustee or an additional security trustee is appointed in accordance with
the Eighth Issuer Deed of Charge, the Eighth Issuer Cash Manager shall
execute such documents with any other parties to this Agreement and take
such actions as such new security trustee may reasonably require for the
purposes of vesting in such new security trustee the rights of the
Security Trustee under this Agreement and under the Eighth Issuer Deed of
Charge and releasing the retiring Security Trustee from further
obligations thereunder.
13.4 NO OBLIGATION ON SECURITY TRUSTEE
Nothing contained in this Agreement shall impose any obligation or
liability on the Security Trustee to assume or perform any of the
obligations of the Eighth Issuer or the Eighth Issuer Cash Manager under
this Agreement or render it liable for any breach thereof.
14. MISCELLANEOUS
14.1 NO SET-OFF
The Eighth Issuer Cash Manager agrees that it will not:
(a) set-off or purport to set-off any amount which either the Eighth
Issuer is or will become obliged to pay to it under this Agreement
against any amount from time to time standing to the credit of or
to be credited to any Eighth Issuer Account; or
(b) make or exercise any claims or demands, any rights of counterclaim
or any other equities against or withhold payment of any and all
sums of money which may at any time and from time to time be
standing to the credit of any Eighth Issuer Account.
14.2 NO PETITION
The Eighth Issuer Cash Manager agrees that for so long as any Eighth
Issuer Notes are outstanding it will not petition or commence proceedings
for the administration or winding-up of the Eighth Issuer or participate
in any such proceedings with regard thereto or file documents with the
court for the appointment of an administrator in relation to the Eighth
Issuer or serve a notice of intention to appoint an administrator in
relation to the Eighth Issuer.
14.3 NO RECOURSE
(a) In relation to all sums due and payable by the Eighth Issuer to the
Eighth Issuer Cash Manager, the Eighth Issuer Cash Manager agrees
that it shall have recourse only to sums paid to or received by (or
on behalf of) the Eighth Issuer pursuant to the provisions of the
Eighth Issuer Transaction Documents.
(b) For the avoidance of doubt, the Security Trustee shall not be
liable to pay any amounts due under CLAUSES 7 and 9, and without
prejudice to the obligations of the Eighth Issuer, nor shall it be
liable to pay any amounts due to any Receiver appointed pursuant to
the Eighth Issuer Deed of Charge in respect of such amounts.
(c) Notwithstanding any other provisions of this Agreement, all
obligations to, and rights of, the Security Trustee under or in
connection with this Agreement (other than its obligations under
CLAUSE 15) shall automatically terminate upon the discharge in full
of all Eighth Issuer Secured Obligations, PROVIDED THAT this shall
be without prejudice to any claims in respect of such obligations
and rights arising on or prior to such date.
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15. CONFIDENTIALITY
During the continuance of this Agreement or after its termination, each
of the Eighth Issuer, the Eighth Issuer Cash Manager and the Security
Trustee shall use its best endeavours not to disclose to any person, firm
or company any information relating to the business, finances or other
matters of a confidential nature of any other party to this agreement of
which it may exclusively by virtue of being party to the Transaction
Documents have become possessed and shall use all reasonable endeavours
to prevent any such disclosure as aforesaid, PROVIDED HOWEVER THAT the
provisions of this CLAUSE 15 shall not apply:
(a) to any information already known to the recipient otherwise than as
a result of entering into any of the Transaction Documents;
(b) to any information subsequently received by the recipient which it
would otherwise be free to disclose;
(c) to any information which is or becomes public knowledge otherwise
than as a result of the conduct of the recipient;
(d) to any extent that the recipient is required to disclose the same
pursuant to any law or order of any court of competent jurisdiction
or pursuant to any direction, request or requirement (whether or
not having the force of law) of any central bank or any
governmental or other authority (including, without limitation, any
official bank examiners or regulators);
(e) to the extent that the recipient needs to disclose the same for
determining the existence of, or declaring, an Eighth Issuer Note
Event of Default, or an Eighth Issuer Cash Manager Termination
Event, the protection or enforcement of any of its rights under any
of the Transaction Documents or in connection herewith or therewith
or for the purpose of discharging, in such manner as it thinks fit,
its duties under or in connection with such agreements in each case
to such persons as require to be informed of such information for
such purposes; or
(f) in relation to any information disclosed to the professional
advisers of the recipient or (in connection with a prospective
rating of any debt to be issued by the Eighth Issuer or any New
Issuer) to any Rating Agency or any prospective new cash manager or
Security Trustee.
16. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or facsimile transmission and shall be deemed to be given (in the
case of facsimile transmission) when despatched, (where delivered by
hand) on the day of delivery if delivered before 17.00 hours on a
Business Day or on the next Business Day if delivered thereafter or on a
day which is not a Business Day or (in the case of first class post) when
it would be received in the ordinary course of the post and shall be
sent:
(a) in the case of the Eighth Issuer Cash Manager: to Halifax plc at
Trinity Road (LP/3/3/SEC), Halifax, West Yorkshire HX1 2RG
(facsimile number +44 (0) 113 235 7511) for the attention of the
Head of Mortgage Securitisation with a copy to HBOS Treasury
Services plc, 33 Old Broad Street, London EC2N 1HZ (facsimile no.
+44 (0) 20 7574 8303) for the attention of Head of Mortgage
Securitisation and Covered Bonds;
(b) in the case of the Eighth Issuer: to Permanent Financing (No. 8)
PLC at 35 Great St. Helen's, London EC3A 6AP (facsimile number +44
(0) 20 7398 6325) for the attention of the
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Directors with a copy to Halifax plc at Trinity Road (LP/3/3/SEC),
Halifax, West Yorkshire HX1 2RG (facsimile number +44 (0) 113 235
7511) for the attention of the Head of Mortgage Securitisation; and
(c) in the case of the Security Trustee: to The Bank of New York, 48th
Floor, One Canada Square, London E14 5AL (facsimile number +44 (0)
20 7964 6399) for the attention of Global Structured Finance --
Corporate Trust,
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party
to the others by written notice in accordance with the provisions of this
CLAUSE 16.
17. VARIATION AND WAIVER
No variation or waiver of this Agreement shall be effective unless it is
in writing and signed by (or by some person duly authorised by) each of
the parties. No single or partial exercise of, or failure or delay in
exercising, any right under this Agreement shall constitute a waiver or
preclude any other or further exercise of that or any other right.
18. NO PARTNERSHIP
It is hereby acknowledged and agreed by the parties that nothing in this
Agreement shall be construed as giving rise to any partnership between
any of the parties.
19. ASSIGNMENT
19.1 ASSIGNMENT BY THE EIGHTH ISSUER
The Eighth Issuer may not assign or transfer any of its rights and
obligations under this Agreement without the prior written consent of
each of the Security Trustee and the Eighth Issuer Cash Manager, except
that the Eighth Issuer may assign its respective rights hereunder without
such consent pursuant to the Eighth Issuer Deed of Charge.
19.2 NO ASSIGNMENT BY EIGHTH ISSUER CASH MANAGER
The Eighth Issuer Cash Manager may not assign or transfer any of its
rights and obligations under this Agreement without the prior written
consent of the Eighth Issuer and the Security Trustee, such consent not
to be unreasonably withheld or delayed.
20. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
21. COUNTERPARTS
This Agreement may be executed in any number of counterparts (manually or
by facsimile) each of which, when executed and delivered, shall
constitute an original, but all the counterparts shall together
constitute but one and the same instrument provided, however, that this
Agreement shall have no force or effect until it is executed by the last
party to execute the same and shall be deemed to have been executed and
delivered in the place where such last party executed this Agreement.
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22. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance with,
the laws of England.
23. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the non-
exclusive jurisdiction of the English courts in any action or proceeding
arising out of or relating to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be
heard and determined by such courts. Each party to this Agreement hereby
irrevocably waives, to the fullest extent it may possibly do so, any
defence or claim that the English courts are an inconvenient forum for
the maintenance or hearing of such action or proceeding.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed the day
and year first before written.
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SCHEDULE 1
CASH MANAGEMENT SERVICES
The Eighth Issuer Cash Manager shall:
(a) operate the Eighth Issuer Accounts and ensure that payments are made into
and from such accounts in accordance with this Agreement, the Eighth
Issuer Deed of Charge, the Eighth Issuer Bank Account Agreement and any
other relevant Eighth Issuer Transaction Document, PROVIDED HOWEVER THAT
nothing herein shall require the Eighth Issuer Cash Manager to make funds
available to the Eighth Issuer to enable such payments to be made other
than as expressly required by the provisions of this Agreement;
(b) keep records for all taxation purposes (including, without limitation,
those relating to VAT);
(c) subject to any applicable law, assist the Auditors of the Eighth Issuer
and provide such information to them as they may reasonably request for
the purpose of carrying out their duties as auditors of the Eighth
Issuer;
(d) make all filings, give all notices and make all registrations and other
notifications required in the day-to-day operation of the business of the
Eighth Issuer or required to be given by the Eighth Issuer pursuant to
the Eighth Issuer Transaction Documents;
(e) arrange for all payments due to be made by the Eighth Issuer under any of
the Eighth Issuer Transaction Documents, PROVIDED THAT such moneys are at
the relevant time available to the Eighth Issuer and PROVIDED FURTHER
THAT nothing herein shall constitute a guarantee by the Eighth Issuer
Cash Manager of all or any of the obligations of the Eighth Issuer under
any of the Eighth Issuer Transaction Documents;
(f) without prejudice to the role of and in conjunction with the Eighth
Issuer Corporate Services Provider under the Eighth Issuer Corporate
Services Agreement, keep general books of account and records of the
Eighth Issuer; provide accounting services, including reviewing receipts
and payments, supervising and assisting in the preparation of interim
statements and final accounts and supervising and assisting in the
preparation of tax returns;
(g) without prejudice to the role of and in conjunction with the Eighth
Issuer Corporate Services Provider under the Eighth Issuer Corporate
Services Agreement, provide or procure the provision of company
secretarial and administration services to the Eighth Issuer including
the keeping of all registers and the making of all returns and filings
required by applicable law or by UK regulatory authorities, co-operate in
the convening of board and general meetings and provide registered office
facilities;
(h) on behalf of the Eighth Issuer, PROVIDED THAT monies are at the relevant
time available to the Eighth Issuer, pay all out-of-pocket expenses of
the Eighth Issuer, incurred by the Eighth Issuer Cash Manager on behalf
of the Eighth Issuer in the performance of the Eighth Issuer Cash
Manager's duties hereunder including without limitation:
(i) all Taxes which may be due or payable by the Eighth Issuer;
(ii) all necessary filing and other fees in compliance with regulatory
requirements;
(iii) all legal and audit fees and other professional advisory fees; and
17
(iv) all communication expenses including postage, courier and telephone
charges;
(i) with the prior written consent of the Security Trustee, invest monies
standing from time to time to the credit of an Eighth Issuer Account in
Authorised Investments, subject to the following provisions:
(i) any such Authorised Investment shall be made in the joint names of
the Eighth Issuer and the Security Trustee;
(ii) any costs properly and reasonably incurred in making and changing
Authorised Investments will be reimbursed to the Eighth Issuer Cash
Manager and the Security Trustee by the Eighth Issuer; and
(iii) all income and other distributions arising on, or proceeds
following the disposal or maturity of, Authorised Investments shall
be credited to the relevant Eighth Issuer Account.
The Security Trustee and the Eighth Issuer Cash Manager shall not be
responsible (save where any loss results from the Security Trustee's or
the Eighth Issuer Cash Manager's, as the case may be, own fraud, wilful
default or negligence or that of their respective officers or employees)
for any loss occasioned by reason of any such Authorised Investments
whether by depreciation in value or otherwise provided that such
Authorised Investments were made in accordance with the above provisions;
(j) (i) if necessary, perform all currency conversions free of charge,
cost or expense at the relevant exchange rate; and
(ii) for the purposes of any calculations referred to in sub-paragraph
(i) above, any currency amounts used in or resulting from such
calculations will be rounded in accordance with the relevant market
practice;
(k) make all returns and filings required to be made by the Eighth Issuer and
provide or procure the provision of company secretarial and
administration services to the Eighth Issuer; and
(l) arrange payment of all fees to the London Stock Exchange plc or, as
applicable, the UK Listing Authority of the Financial Services Authority.
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SCHEDULE 2
CASH MANAGEMENT AND MAINTENANCE OF LEDGERS
1. DETERMINATION
(a) On each Eighth Issuer Note Determination Date, the Eighth Issuer Cash
Manager shall determine each of the following in accordance with this
paragraph 1:
(i) the amount of any Eighth Issuer Principal Receipts and Eighth
Issuer Revenue Receipts available as at the following Interest
Payment Date; and
(ii) the Principal Amount Outstanding of the Eighth Issuer Notes, the
Pool Factor, and the Note Principal Payment of the Eighth Issuer
Notes in accordance with the Conditions.
(b) The Eighth Issuer Cash Manager shall determine and notify the Eighth
Issuer, the Note Trustee, the Registrar and the Paying Agents on or prior
to 11:00 a.m. (London time) on the last day of each Interest Period of
any Additional Amount payable in respect of such Interest Period.
(c) (i) The Eighth Issuer Cash Manager may make all the determinations
referred to in paragraph 1(a) and paragraph 1(b) on the basis of
any reasonable and proper assumptions as the Eighth Issuer Cash
Manager considers appropriate (including without limitation as to
the amount of any payments to be made under paragraph 3 below
during the period from and including the Eighth Issuer Note
Determination Date to but excluding the next Interest Payment
Date).
(ii) The Eighth Issuer Cash Manager shall on request notify the Eighth
Issuer and the Security Trustee in writing of any such other
assumptions and shall take account of any representations made by
the Eighth Issuer and the Security Trustee (as the case may be) in
relation thereto.
(d) Each determination made in accordance with this paragraph 1 shall (in the
absence of fraud, wilful default, negligence and/or manifest error) be
final and binding on all persons.
2. NOTIFICATION OF DETERMINATIONS
(a) The Eighth Issuer Cash Manager will cause each determination of Eighth
Issuer Available Funds to be notified forthwith to the Eighth Issuer.
(b) The Eighth Issuer Cash Manager shall procure that the determinations and
notifications required to be made pursuant to CONDITION 5(C) of the
Conditions are made.
(c) The Eighth Issuer Cash Manager will promptly notify the Eighth Issuer and
each Calculation Agent (as defined in each of the Funding 1 Swap
Agreement and each relevant Eighth Issuer Swap Agreement) of the relevant
Note Principal Payment determined in accordance with paragraph 1(a)(ii)
above.
3. PRIORITY OF PAYMENTS FOR EIGHTH ISSUER REVENUE RECEIPTS
Eighth Issuer Revenue Receipts will be applied, as applicable:
(i) on each Interest Payment Date; or
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(ii) on each day when due in respect of amounts due to third parties pursuant
to paragraph (b) below or amounts due to the Eighth Issuer Account Bank
under the Eighth Issuer Bank Account Agreement pursuant to paragraph (d)
below,
in each case until enforcement of the Eighth Issuer Security pursuant to the
Eighth Issuer Deed of Charge or until such time as there are no Eighth Issuer
Secured Obligations outstanding, in making such payments and provisions in the
following order of priority (in each case only if and to the extent that
payments or provisions of a higher priority have been made in full and to the
extent that such withdrawal does not cause the Eighth Issuer Transaction Account
to become overdrawn) (the EIGHTH ISSUER PRE-ENFORCEMENT REVENUE PRIORITY OF
PAYMENTS):
(a) first, pari passu and pro rata, to pay amounts due to:
(i) the Security Trustee, together with interest and any amount in
respect of VAT on those amounts, and to provide for any amounts due
or to become due during the following Interest Period to the
Security Trustee under the Eighth Issuer Deed of Charge;
(ii) the Note Trustee, together with interest and any amount in respect
of VAT on those amounts, and to provide for any amounts due or to
become due during the following Interest Period to the Note Trustee
under the Eighth Issuer Trust Deed; and
(iii) the Agent Bank, the Paying Agents, the Registrar and the Transfer
Agent, together with interest and any amount in respect of VAT on
those amounts, and any costs, charges liabilities and expenses then
due or to become due during the following Interest Period to the
Agent Bank, the Registrar, the Transfer Agent and the Paying Agents
under the Eighth Issuer Paying Agent and Agent Bank Agreement;
(b) secondly, to pay amounts due to any third party creditors of the Eighth
Issuer (other than those referred to later in this order of priority of
payments), which amounts have been incurred without breach by the Eighth
Issuer of the Eighth Issuer Transaction Documents and for which payment
has not been provided for elsewhere and to provide for any of those
amounts expected to become due and payable during the following Interest
Period by the Eighth Issuer and to pay or discharge any liability of the
Eighth Issuer for corporation tax on any chargeable income or gain of the
Eighth Issuer;
(c) thirdly, pari passu and pro rata, to pay amounts due to the Eighth Issuer
Cash Manager, together with any amount in respect of VAT on those
amounts, and to provide for any amounts due, or to become due to the
Eighth Issuer Cash Manager in the immediately succeeding Interest Period,
under this Agreement and to the Corporate Services Provider under the
Eighth Issuer Corporate Services Agreement and to the Eighth Issuer
Account Bank under the Eighth Issuer Bank Account Agreement;
(d) fourthly, pari passu and pro rata, to pay:
(i) on each Funding 1 Interest Payment Date amounts due to the Series 1
Class A Eighth Issuer Swap Provider in respect of the Series 1
Class A Eighth Issuer Swap (including any termination payment but
excluding any related Eighth Issuer Swap Excluded Termination
Amount) and from amounts received from the Series 1 Class A Eighth
Issuer Swap Provider to pay on each Interest Payment Date interest
due and payable on the Series 1 Class A Eighth Issuer Notes;
(ii) amounts due to the Series 2 Class A Eighth Issuer Swap Provider in
respect of the Series 2 Class A Eighth Issuer Swap (including any
termination payment but
20
excluding any related Eighth Issuer Swap Excluded Termination
Amount) and from amounts received from the Series 2 Class A Eighth
Issuer Swap Provider to pay on each Interest Payment Date interest
due and payable on the Series 2 Class A Eighth Issuer Notes;
(iii) amounts due to the Series 3 Class A Eighth Issuer Swap Provider in
respect of the Series 3 Class A Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 3 Class A Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 3 Class A Eighth Issuer Notes;
(iv) amounts due to the Series 4 Class A Eighth Issuer Swap Provider in
respect of the Series 4 Class A Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 4 Class A Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 4 Class A Eighth Issuer Notes; and
(v) interest due and payable on the Series 5 Class A Eighth Issuer
Notes;
(e) fifthly, pari passu and pro rata, to pay:
(i) amounts due to the Series 1 Class B Eighth Issuer Swap Provider in
respect of the Series 1 Class B Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 1 Class B Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 1 Class B Eighth Issuer Notes;
(ii) amounts due to the Series 2 Class B Eighth Issuer Swap Provider in
respect of the Series 2 Class B Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 2 Class B Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 2 Class B Eighth Issuer Notes;
(iii) amounts due to the Series 3 Class B Eighth Issuer Swap Provider in
respect of the Series 3 Class B Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 3 Class B Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 3 Class B Eighth Issuer Notes; and
(iv) amounts due to the Series 4 Class B Eighth Issuer Swap Provider in
respect of the Series 4 Class B Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 4 Class B Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 4 Class B Eighth Issuer Notes;
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(f) sixthly, pari passu and pro rata, to pay:
(i) amounts due to the Series 1 Eighth Class C Issuer Swap Provider in
respect of the Series 1 Class C Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 1 Class C Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 1 Class C Eighth Issuer Notes;
(ii) amounts due to the Series 2 Eighth Class C Issuer Swap Provider in
respect of the Series 2 Class C Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 2 Class C Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 2 Class C Eighth Issuer Notes;
(iii) amounts due to the Series 3 Eighth Class C Issuer Swap Provider in
respect of the Series 3 Class C Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 3 Class C Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 3 Class C Eighth Issuer Notes; and
(iv) amounts due to the Series 4 Eighth Class C Issuer Swap Provider in
respect of the Series 4 Class C Eighth Issuer Swap (including any
termination payment but excluding any related Eighth Issuer Swap
Excluded Termination Amount) and from amounts received from the
Series 4 Class C Eighth Issuer Swap Provider in relation to such
swap to pay on each Interest Payment Date interest due and payable
on the Series 4 Class C Eighth Issuer Notes;
(g) seventhly, pari passu and pro rata, to pay any termination payment due
(without double counting) to:
(i) the Series 1 Eighth Issuer Swap Provider following an Eighth Issuer
Swap Provider Default or an Eighth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 1 Eighth Issuer Swap
Provider;
(ii) the Series 2 Eighth Issuer Swap Provider following an Eighth Issuer
Swap Provider Default or an Eighth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 2 Eighth Issuer Swap
Provider;
(iii) the Series 3 Eighth Issuer Swap Provider following an Eighth Issuer
Swap Provider Default or an Eighth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 3 Eighth Issuer Swap
Provider; and
(iv) the Series 4 Eighth Issuer Swap Provider following an Eighth Issuer
Swap Provider Default or an Eighth Issuer Swap Provider Downgrade
Termination Event in respect of the Series 4 Eighth Issuer Swap
Provider;
(h) eighthly, to the Eighth Issuer, an amount equal to 0.01 per cent. of the
interest received on the Eighth Issuer Term Advances, to be retained by
the Eighth Issuer as profit; and
(i) ninthly, to the Eighth Issuer.
22
4. PRIORITY OF PAYMENTS FOR EIGHTH ISSUER PRINCIPAL RECEIPTS
Subject to CONDITION 5 of the Eighth Issuer Notes, until enforcement of
the Eighth Issuer Security pursuant to the Eighth Issuer Deed of Charge
or until such time as there are no Eighth Issuer Notes outstanding,
Eighth Issuer Principal Receipts will be applied as follows:
(a) the Series 1 Class A Eighth Issuer Notes shall be redeemed on the
relevant Interest Payment Date in an amount equal to the amount,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 1 Term AAA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(b) the Series 2 Class A Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 2 Term AAA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(c) the Series 3 Class A Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 3 Term AAA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(d) the Series 4 Class A Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 4 Term AAA Advance, converted into Euro at the
relevant Euro Currency Exchange Rate;
(e) the Series 5 Class A1 Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 5A1 Term AAA Advance;
(f) the Series 5 Class A2 Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 5A2 Term AAA Advance;
(g) the Series 1 Class B Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 1 Term AA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(h) the Series 2 Class B Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 2 Term AA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(i) the Series 3 Class B Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 3 Term AA Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(j) the Series 4 Class B Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 4 Term AA Advance, converted into Euro at the Euro
Currency Exchange Rate;
23
(k) the Series 1 Class C Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 1 Term BBB Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(l) the Series 2 Class C Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 2 Term BBB Advance, converted into Dollars at the
relevant Dollar Currency Exchange Rate;
(m) the Series 3 Class C Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 3 Term BBB Advance, converted into Dollars at the
Dollars Currency Exchange Rate; and
(n) the Series 4 Class C Eighth Issuer Notes shall be redeemed on each
Interest Payment Date in an amount equal to the amount, if any,
repaid on that Interest Payment Date in respect of the Eighth
Issuer Series 4 Term BBB Advance, converted into Euro at the Euro
Currency Exchange Rate.
24
SCHEDULE 3
FORM OF EIGHTH ISSUER QUARTERLY REPORT
PERMANENT FINANCING (NO. 8) PLC
PERIOD ENDED THIS QUARTER ([GBP])
INTERCOMPANY LOAN BALANCES
Total intercompany loan balance
Last Quarter Closing balance
Repayments
New Term Advances
Cash Accumulated
--------------------
Closing Balance
====================
CASH ACCUMULATION LEDGER
Opening Balance
Losses this Quarter
Principal Received
Principal paid
--------------------
Closing Balance
====================
AVAILABLE CREDIT ENHANCEMENT
Reserve Fund at closing (22/06/2005)
Last Quarter Closing Reserve Fund
Replenishments this quarter
Drawings to make a bullet repayment
Other drawings Closing Reserve Fund Balance
--------------------
Target Reserve Fund
====================
PRINCIPAL DEFICIENCY LEDGER AAA AA BBB
Opening PDL Balance
Losses this Quarter
PDL top up from Revenue Income
------------------------------
Closing PDL Balance
==============================
SUBORDINATED LOANS OUTSTANDING
Outstanding start up loan balance
Last Quarter Closing Outstanding
Accrued Interest
New Loans
Repayments Made
--------------------
Closing Balance ====================
25
PERMANENT FINANCING (NO. 8) PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A SERIES 5 CLASSA1
Moody's Current Rating P-1 Aaa Aaa Aaa Aaa
Fitch Current Rating F1+ AAA AAA AAA AAA
S&P Current Rating A-1+ AAA AAA AAA AAA
PERMANENT FINANCING (NO. 8) PLC
NOTES OUTSTANDING
PERIOD ENDED
SERIES 5 CLASS A2
Moody's Current Rating Aaa
Fitch Current Rating AAA
S&P Current Rating AAA
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Moody's Current Rating Aa3 Aa3 Aa3 Aa3
Fitch Current Rating AA AA AA AA
S&P Current Rating AA AA AA AA
SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C
Moody's Current Rating Baa2 Baa2 Baa2 Baa2
Fitch Current Rating BBB BBB BBB BBB
S&P Current Rating BBB BBB BBB BBB
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A SERIES 5 CLASS A1
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 5 CLASS A2
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C
Initial Note Balance
Previous Quarters Note Principal
Note Redemptions
Outstanding Note Principal
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A SERIES 5 CLASS A1 SERIES 5 CLASS A2
NOTE INTEREST MARGINS
STEP UP DATES
STEP UP MARGINS
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Note Interest Margins
Step Up Dates
Step Up Margins
SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C
Note Interest Margins
Step Up Dates
Step Up Margins
26
SERIES 1 CLASS A SERIES 2 CLASS A SERIES 3 CLASS A SERIES 4 CLASS A SERIES 5 CLASS A1
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
SERIES 5 CLASS A2
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
SERIES 1 CLASS B SERIES 2 CLASS B SERIES 3 CLASS B SERIES 4 CLASS B
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
SERIES 1 CLASS C SERIES 2 CLASS C SERIES 3 CLASS C SERIES 4 CLASS C
Interest Payment Cycle
Interest Payment Date
Next Interest Payment Date
27
SIGNATORIES
EIGHTH ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of ) ...........................
HALIFAX PLC in the presence of:....... ) (as attorney as aforesaid)
Witness's signature:..................
Name: ..................
Address: .................
EIGHTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 8 ) PLC ) ............................
in the presence of: ) (as attorney as aforesaid)
Witness's signature:..................
Name: .................
Address: .................
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) ...........................
28