DRAFT PF8 FUNDING 1 SCHEDULE
EXHIBIT 10.3
FUNDING 1 SWAP
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of [*] June, 2005
between
(1) HALIFAX PLC ("PARTY A");
(2) PERMANENT FUNDING (No. 1) LIMITED ("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(k) of this Schedule and assuming the obligations
under the final paragraph of Part 5(f) of this Schedule).
This Agreement amends and restates the 1992 ISDA Master Agreement (Funding 1
Swap) dated as of 14th June, 2002 between Party A, Party B and the Security
Trustee, as amended and supplemented from time to time prior to the date
hereof.
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 Part 5(f)(viii) of this
Schedule, the following will constitute an Additional Termination
Event:
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.
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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 FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
Party A and Appropriate evidence On signing of Yes
Party B of its signatory's this Agreement
authority
Party B Certified copy of On signing of Yes
board resolution this Agreement
Party A Legal opinion in On signing of No
form and substance this Agreement
satisfactory to
Party B
Party B Legal opinion On signing of No
from Allen & this Agreement
Overy LLP
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Part 4. MISCELLANEOUS
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a) of this
Agreement:
Address for notices or communications to Party A:
Address: Trinity Road
Halifax
West Yorkshire
HX1 2RG
Attention: Mortgage Securitisation Manager
Facsimile No.: 01422 391777
With a copy to: HBOS Treasury Services plc
33 Old Broad Street
London
EC2N 1HZ
Attention: Head of Capital Markets and Securitisation
Facsimile No.: 020 7574 8784
Address for notices or communications to Party B:
Address: Blackwell House
Guildhall Yard
London
EC2V 5AE
Attention: The Secretary
Facsimile No.: 020 7566 0975
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
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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: None.
In respect of Party B: None.
(g) CREDIT SUPPORT PROVIDER. Credit Support Provider means in relation to
Party A, none.
Credit Support Provider means in relation to Party B, none.
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with English law.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to Transactions entered into under this Agreement
unless otherwise specified in a Confirmation.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
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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 Funding 1 Deed of Charge and
acknowledges notice of such assignment. Each of the parties hereby confirms
and agrees that the Security Trustee will not be liable for any of the
obligations of Party B hereunder.
(c) DISAPPLICATION OF CERTAIN EVENTS OF DEFAULT
Section 5(a)(ii), Section 5(a)(iii), Section 5(a)(iv), Section 5(a)(v),
Section 5(a)(vii)(2), (6), (7) and (9) and Section 5(a)(viii) will not apply in
respect of Party B.
Section 5(a)(vii)(8) will not apply in respect of Party B to the extent that it
applies to Section 5(a)(vii) (2), (6), (7) and (9).
(d) DISAPPLICATION OF CERTAIN TERMINATION EVENTS
The "Tax Event Upon Merger" provision of Section 5(b)(iii) will not apply to
Party A or to Party B.
The "Tax Event" provision of Section 5(b)(ii) will not apply to Party B and
will apply to Party A, provided that:
(i) the application and interpretation of Section 5(b)(ii) shall be
restricted to a Change in Tax Law, as defined below; and
(ii) Party A will only be entitled to designate an Early Termination Date
in respect of a Transaction on the basis of a Tax Event affecting that
Transaction if it obtains the prior consent of the Security Trustee.
Such consent shall be given where Party A has provided the Security
Trustee with (1) a certificate signed by two authorised signatories of
Party A stating that a Change in Tax Law has occurred identifying such
change in Tax Law, and (2) an opinion in form and substance
satisfactory to the Security Trustee of independent legal advisers
of recognised standing to the effect that Party A has been or will be
required to pay a Gross-Up Amount (or, as the case may be, a Liability
Amount) under Section 2(d) as a result of such Change in Tax Law.
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
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The following will constitute an additional Event of Default with respect to
Party B:
An Intercompany Loan Acceleration Notice is served on Party B (which will be the
Defaulting Party).
"INTERCOMPANY LOAN ACCELERATION NOTICE" will have the meaning ascribed to that
term in the relevant Intercompany Loan Agreement.
(f) RATINGS EVENT
(i) If the short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider from time to
time in respect of Party A cease to be rated at least as high as "A-1+"
by Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc. ("S&P") and, as a result of such cessation, the then
current rating of the 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 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 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 ratings of the Issuer
Notes by S&P at, or restore the rating of the Issuer Notes by
S&P to, the level it would have been at immediately prior to
such Initial S&P Rating Event);
(C) obtain a guarantee of its rights and obligations with respect to
this Agreement from a third party satisfactory to the Security
Trustee (whose consent will be given if S&P confirms that such
guarantee would maintain the rating of the Issuer Notes at, or
restore the rating of the 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 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) will be
transferred to Party A and Party A will not be required to transfer
any additional collateral.
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(ii) If the short-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider from time to
time in respect of Party A cease to be rated at least as high as "A-3"
by S&P and, as a result of such downgrade, the then current rating of
the Issuer Notes may in the reasonable opinion of S&P be downgraded or
placed under review for possible downgrade (such event, a "SUBSEQUENT
S&P RATING EVENT"), then Party A will, within 10 days of the occurrence
of such Subsequent S&P Rating Event, at its own cost either:
(A) transfer all of its rights and obligations with respect to
this Agreement to a replacement third party satisfactory to the
Security Trustee (whose consent will be given if S&P confirms
that such transfer would maintain the rating of the Issuer
Notes by S&P at, or restore the rating of the 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 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 Issuer
Notes at, or restore the rating of the 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 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
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the same legal jurisdiction as Party A or Party B, or (y) a
replacement third party as agreed with Moody's;
(2) procure another person to become co-obligor in respect of the
obligations of Party A under this Agreement, which co-obligor
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 agreed with
Moody's;
(3) take such other action as agreed 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 requirements 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)
will be transferred to Party A and Party A will not be required to
transfer any additional collateral.
(iv) If:
(A) the long-term, unsecured and unsubordinated debt obligations of
Party A (or its successor) or any Credit Support Provider from
time to time in respect of Party A cease to be rated as high as
"A3" (or its equivalent) by 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 as
high as "Prime-2" (or its equivalent) by Moody's,
(such cessation being a "SUBSEQUENT MOODY'S RATING EVENT"), then Party
A will:
(1) on a best 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 agreed with
Moody's;
(bb) procure another person to become co-obligor in respect
of the obligations of Party A under this Agreement,
which co- obligor 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 agreed with Moody's; or
(cc) take such other action as agreed 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
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(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 requirements as may be agreed
with Moody's, provided that, if, at the time a Subsequent
Moody's Rating Event occurs, Party A is required to post
collateral following an Initial Moody's RatingEvent, 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) are satisfied at any
time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to paragraph (iv)(2) 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.
"MOODY'S CRITERIA" means that the Collateral Amount will equal:
(a) 102 per cent. of the mark-to-market value of the outstanding
Transactions as determined by Party A in good faith on a weekly
basis 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 are downgraded
below "A1";
(b) if the long-term, unsecured and unsubordinated debt obligations
or 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 are downgraded below "A2" or
"Prime-1" by Moody's, the sum of:
(i) 102 per cent. of the mark-to-market value of the
outstanding Transactions determined by Party A in good
faith on a weekly basis; and
(ii) the sum of:
(A) the aggregate of the amounts, determined in
respect of each class and series of Issuer Notes,
equal to the Outstanding Principal Balance of
that class and series of Issuer Notes at the time
of determination multiplied by the weighted
average life of that class and series of Issuer
Notes, as at the date of determination (expressed
in days) divided by 365 (such aggregate, the
"BUFFER NOTIONAL") multiplied by the product of
0.2 per cent. and the Fixed Rate Ratio; and
(B) the Buffer Notional multiplied by the product of
0.1 per cent. and the sum of:
(aa) the Variable Rate Ratio; and
(bb) the Tracker Ratio; and
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(c) if the long-term, unsecured and unsubordinated debt obligations
or 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 are downgraded below "A3" or
"Prime-2" by Moody's, the sum of:
(i) 102 per cent. of the mark-to-market value of the
outstanding Transactions determined by Party A in good
faith on a weekly basis; and
(ii) the sum of:
(A) the Buffer Notional multiplied by the product of
0.4 per cent. or such greater amount as
determined by Moody's and the Fixed Rate Ratio;
and
(B) the Buffer Notional multiplied by the product of
0.2 per cent. and the sum of:
(aa) the Variable Rate Ratio; and
(bb) the Tracker Ratio.
For the purposes of determining the Buffer Notional, Party A will
calculate the weighted average life of each series and class of Issuer
Notes using (1) such assumptions as will reflect the then current
expectations of Party A and/or be based upon such circumstances as
Party A may, in good faith, determine applicable; and, notwithstanding
for the avoidance of doubt (1) above, assuming (2) that the relevant
Issuer will not exercise its call option to redeem such Issuer Notes
in full on the Step-up Date, if any, in respect of such Issuer Notes.
In relation to paragraphs (ii)(4) and (iii)(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 (iii)(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 an audit of the methodology used by Party A in the
calculation of the mark-to-market value of the outstanding
Transactions.
(v) If either the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider from time
to time in respect of Party A cease to be rated at least as high as
"A" (or its equivalent) by Fitch Ratings Ltd ("FITCH") or the
short-term, unsecured and unsubordinated debt obligations of Party A
(or its successor) or any Credit Support Provider from time to time
in respect of Party A cease to be rated at least as high as "F1"
(or its equivalent) by Fitch and, as a result of such cessation, the
then current rating of the 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 in a form and substance acceptable to Fitch (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) Party A will be deemed to have satisfied the requirements
of Fitch if the Collateral Amount is determined on a basis
which is no more onerous than the Fitch Criteria (as defined
below), and (y) the Collateral Amount will not be required
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to exceed such amount as would be required (in accordance with
the Fitch Criteria) to maintain or restore the rating of the
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 Issuer
Notes by Fitch at, or restore the rating of the 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 Issuer
Notes at, or restore the rating of the Issuer Notes to, the
level it would have been at immediately prior to such Initial
Fitch Rating Event); or
(D) take such other action as Party A may agree with Fitch as will
result in the rating of the Issuer Notes following the taking
of such action being maintained at, or restored to, the level
it would have been at immediately prior to such Initial Fitch
Rating Event.
If any of paragraphs (v)(B), (v)(C) or (v)(D) above are satisfied at
any time, all collateral (or the equivalent thereof, as appropriate)
transferred by Party A pursuant to paragraph (v)(A) above will be
transferred to Party A and Party A will not be required to transfer
any additional collateral.
(vi) If either the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider from time
to time in respect of Party A cease to be rated at least as high as
"BBB+" (or its equivalent) by Fitch or the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor) or any
Credit Support Provider from time to time in respect of Party A cease
to be rated at least as high as "F2" (or its equivalent) by Fitch and,
as a result of such cessation, the then current rating of the 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 Issuer Notes by Fitch at, or
restore the rating of the Issuer Notes by Fitch to, the
level it would have been at immediately prior to such
First Subsequent Fitch Rating Event);
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(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 Issuer Notes at, or restore the rating of
the 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 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-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 either the long-term, unsecured and unsubordinated debt obligations
of Party A (or its successor) or any Credit Support Provider from time
to time in respect of Party A cease to be rated at least as high as
"BBB-" (or its equivalent) by Fitch or the short-term, unsecured and
unsubordinated debt obligations of Party A (or its successor) or any
Credit Support Provider from time to time in respect of Party A cease
to be rated at least as high as "F3" (or its equivalent) by Fitch and,
as a result of such cessation, the then current rating of the 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 Issuer
Notes by Fitch at, or restore the rating of the 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 Issuer Notes at, or
restore the rating of the 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 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
32
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 agreement 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 Cushion and (ii)
the mark-to-market value of the outstanding Transactions as determined
by Party A in good faith on a weekly basis; and
(b) zero.
"VOLATILITY CUSHION" means the percentage specified in Appendix 2 to Fitch's
Structured Finance Criteria Report entitled "Counterparty Risk in Structured
Finance Transactions: Swap Criteria" dated 13th September, 2004 for a weighted
average life that is equal to (or closest to) the weighted average of the
weighted average life of each series and class of Issuer Notes. For these
purposes, Party A will calculate the weighted average life of each series and
class of Issuer Notes using (1) such assumptions as will reflect the then
current expectations of Party A and/or be based upon such circumstances as
Party A may, in good faith, determine applicable; and, notwithstanding for the
avoidance of doubt (1) above, assuming (2) that the relevant Issuer will not
exercise its call option to redeem such Issuer Notes in full on the Step-up
Date, if any, in respect of such Issuer Notes.
(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 tenth day following the
Subsequent S&P Rating Event with Party A as the sole Affected
Party and all Transactions as Affected Transactions.
(C) If Party A does not take any of the measures described in
paragraph (iii)(1), (2), (3) or (4) above, such failure will
not be or give rise to an Event of Default but will constitute
an Additional Termination Event with respect to Party A and
will be deemed to have occurred on the thirtieth day following
the occurrence of such Initial Moody's Rating Event with
Party A as the sole Affected Party and all Transactions as
Affected Transactions.
33
(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
haveoccurred 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, Party A has failed,
having applied best efforts, to either transfer as described in
paragraph (iv)(1)(aa), find a co-obligor 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 following such
Subsequent Moody's Rating Event 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 thirtieth day
following such Second Subsequent Fitch Rating Event with
Party A as the sole Affected Party and all Transactions as
Affected Transactions.
(H) In the event that Party B were to designate an Early
Termination Date and there would be a payment due to Party A,
Party B may only designate such an Early Termination Date in
respect of an Additional Termination Event under this Part 5(f)
if Party B has found a replacement counterparty willing to
enter into a new transaction on terms that reflect as closely
as reasonably possible, as determined by Party B in its sole
and absolute discretion, the economic, legal and credit terms
of the Terminated Transactions with Party A, and Party B has
obtained the prior written consent of the Security Trustee.
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
34
respect to the operation and management of the collateral and entering into such
documents as may reasonably be requested by Party A inconnection with the
provision of such collateral.
(g) 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."
(h) RECORDING OF CONVERSATIONS
Each party to this Agreement acknowledges and agrees to the tape recording of
conversations between the parties to this Agreement whether by one or other or
both of the parties.
(i) RELATIONSHIP BETWEEN THE PARTIES
The Agreement is amended by the insertion after Section 14 of an additional
Section 15, reading in its entirety as follows:
"15. RELATIONSHIP BETWEEN THE PARTIES
Each party will be deemed to represent to the other party on the date on which
it enters into a Transaction that (absent a written agreement between the
parties that expressly imposes affirmative obligations to the contrary for that
Transaction):
(a) NON RELIANCE. It is acting for its own account, and it has made its
own independent decisions to enter into that Transaction and as to
whether that Transaction is appropriate or proper for it based upon
advice from such advisers as it has deemed necessary. It is not
relying on any communication (written or oral) of the other party as
investment advice or as a recommendation to enter into that
Transaction, it being understood that information and explanations
related to the terms and conditions of a Transaction will not be
considered investment advice or a recommendation to enter into that
Transaction. No communication (written or oral) received from the
other party will be deemed to be an assurance or guarantee as to the
expected results of that Transaction.
(b) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of that Transaction. It is also capable of
assuming, and assumes, the financial and other risks of that
Transaction.
(c) STATUS OF PARTIES. The other party is not acting as a fiduciary for
or an adviser for it in respect of that Transaction."
(j) TAX
The Agreement is amended by deleting Section 2(d) in its entirety and replacing
it with the following:
35
"(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,
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).
36
(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, 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 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 (1) above
but for the obtaining by it of the said Tax credit, allowance
or setoff and, in the case of a repayment, will be the amount
of the repayment together, in either case, with any related
interest, repayment supplement or similar payment obtained by
Party B; and
(3) it will use all reasonable endeavours to obtain any Tax credit,
allowance, setoff or repayment as soon as is reasonably
practicable and it 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, allowance, set-off or
repayment and of the date on which the same is received."
(k) SECURITY, ENFORCEMENT AND LIMITED RECOURSE
Party A agrees with Party B and the Security Trustee to be bound by the terms
of the Funding 1 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 Funding 1 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 Funding 1 Deed of
Charge.
In relation to all sums due and payable by Party B to Party A, Party A agrees
that it will have recourse only to Funding 1 Revenue Receipts and Funding 1
Principal Receipts, 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.
(l) 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.
(m) 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.
(n) ADDITIONAL DEFINITIONS
37
Words and expressions defined in the Amended and Restated Master Definitions
and Construction Schedule (the "MASTER SCHEDULE") signed on or about the date
of this Agreement and any other Master Definitions and Construction Schedule,
each as amended, varied or supplemented from time to time (together the "MASTER
DEFINITIONS SCHEDULE") will, except so far as the context otherwise requires,
have the same meaning in this Agreement. The rules of interpretation set out
in the Master Definitions Schedule will apply to this Agreement.
(o) 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 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(o)(iii)(C)
below;
38
(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(o)(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.
(p) TRANSFER POLICY
Subject to the constraints otherwise provided by Section 7 of this Agreement,
but 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 another entity (a "TRANSFEREE") with the prior written
consent of 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
"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 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.
39
With respect to paragraph (iii) above, each party agrees to make such Payee Tax
Representations and Payer Tax Representations as may reasonably be requested by
the other party in order to reasonably satisfy such other party that such
withholding or deduction will not occur.
Following the transfer, all references to Party A will be deemed to be
references to the Transferee.
(q) 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.
40
FUNDING 1 SWAP CONFIRMATION
From: Halifax plc
Trinity Road
Halifax
West Yorkshire
HX1 2RG
To: Permanent Funding (No. 1) Limited
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
[ ] June, 2005
Dear Sirs,
CONFIRMATION - FUNDING 1 SWAP
This confirmation hereby amends and replaces the confirmation entered into
between us, you and the Security Trustee on 14th June, 2002, as amended and
restated on 6th March, 2003, 25th November, 2003, 12th March, 2004, 22nd July,
2004, 18th November, 2004 and 23rd March, 2005 (the PREVIOUS CONFIRMATION).
This confirmation constitutes a "Confirmation" as referred to in the 1992 ISDA
Master Agreement (Multicurrency-Cross Border) dated as of 14th June, 2002 as
amended and restated by us, you and the Security Trustee on 6th March, 2003,
25th November, 2003, 12th March, 2004, 22nd July, 2004, 18th November, 2004,
23rd March, 2005 and the date hereof and as amended and supplemented from time
to time (the AGREEMENT). As of the date hereof, all rights and obligations of
the parties to the Previous Confirmation shall cease to exist and shall be
replaced in their entirety by the rights and obligations arising pursuant to
this Confirmation.
The purpose of this letter (the CONFIRMATION) is to confirm the terms and
conditions of the Swap Transaction entered into between us on the Trade Date
specified below.
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 shall govern: (i) this Confirmation; (ii) the Master Definitions
Schedule; and (iii) the Definitions.
41
The following expressions shall, for the purpose of this Confirmation, have the
following meanings:
AVERAGE FIXED RATE LOAN BALANCE means, in respect of a Calculation Period, the
average daily aggregate Outstanding Principal Balance of the Fixed Rate Loans
during the relevant Calculation Period as notified by the Cash Manager in
accordance with the Cash Management Agreement.
AVERAGE LOAN BALANCE means, in respect of a Calculation Period, the sum of the
Average Fixed Rate Loan Balance, the Average Variable Rate Loan Balance and the
Average Tracker Rate Loan Balance.
AVERAGE TRACKER RATE LOAN BALANCE means, in respect of a Calculation Period,
the average daily aggregate Outstanding Principal Balance of the Tracker Rate
Loans during the relevant Calculation Period as notified by the Cash Manager in
accordance with the provisions of the Cash Management Agreement.
AVERAGE VARIABLE RATE LOAN BALANCE means, in respect of a Calculation Period,
the average daily aggregate Outstanding Principal Balance of the Variable Rate
Loans during the relevant Calculation Period as notified by the Cash Manager in
accordance with the provisions of the Cash Management Agreement.
BLENDED RATE means, in respect of a Calculation Period, a rate of interest
equal to the sum of (i) the Weighted Average Fixed Rate for such Calculation
Period multiplied by the Fixed Rate Ratio for such Calculation Period; (ii) the
Variable Rate Swap SVR for such Calculation Period multiplied by the Variable
Rate Ratio for such Calculation Period and (iii) the Tracker Swap Rate for such
Calculation Period multiplied by the Tracker Ratio for such Calculation Period.
BLENDED SPREAD means, in respect of a Calculation Period, a percentage equal to
the sum of (i) the Fixed Rate Spread multiplied by the Fixed Rate Ratio for
such Calculation Period; (ii) the Variable Rate Spread multiplied by the
Variable Rate Ratio for such Calculation Period and (iii) the Tracker Spread
multiplied by the Tracker Ratio for such Calculation Period.
CALCULATION DATE means the first day (or if not a London Business Day, the next
succeeding London Business Day) of each month and any other day on which
Funding 1 acquires a further interest in the Trust Property from and including
the Calculation Date immediately preceding the Effective Date.
CALCULATION PERIOD means, each period from and including the Closing Date to
but excluding the first Calculation Date and thereafter the period from and
including one Calculation Date to but excluding the next following Calculation
Date.
CALCULATION PERIOD FUNDING 1 AMOUNT means, in respect of a Calculation Period,
an amount in Sterling equal to the amount produced by applying the Blended Rate
for such Calculation Period to the Notional Amount, such amount to be
calculated by the Calculation Agent on the basis of the actual number of days
in such Calculation Period, divided by 365.
CALCULATION PERIOD SWAP PROVIDER AMOUNT means, in respect of a Calculation
Period, an amount in Sterling which is equal to the amount produced by applying
a rate equal to the Three Month LIBOR prevailing on the first day of such
Calculation Period plus the Blended Spread to the Notional Amount for such
Calculation Period, such amount to be calculated by the Calculation Agent on
the basis of the actual number of days in such Calculation Period, divided by
365.
FIRST ISSUER means Permanent Financing (No. 1) PLC.
42
FIXED RATE RATIO means, in respect of a Calculation Period, the Average Fixed
Rate Loan Balance divided by the Average Loan Balance.
FIXED RATE SPREAD means 0.37 per cent. per annum.
FUNDING 1 AMOUNT means, in respect of an Interest Period, an amount equal to
the sum of each of the Calculation Period Funding 1 Amounts calculated in
respect of the Calculation Periods which end on a date falling within such
Interest Period.
INTERCOMPANY LOANS means, the First Issuer Intercompany Loan entered into
between Funding 1, the First Issuer and the Security Trustee, the Second Issuer
Intercompany Loan entered into between Funding 1, the Second Issuer, and the
Security Trustee and any New Intercompany Loan.
INTEREST PAYMENT DATE means each Funding 1 Interest Payment Date.
INTEREST PERIOD means the period from (and including) the Second Issuer Closing
Date to (but excluding) the Interest Payment Date falling in June 2003 and
thereafter from (and including) one Interest Payment Date to (but excluding)
the next succeeding Interest Payment Date.
NOTIONAL AMOUNT means in respect of a Calculation Period, an amount in Sterling
equal to:
(a) the Outstanding Principal Balance of the Intercompany Loans on the
first day of the relevant Calculation Period, less
(b) the balance of the Principal Deficiency Ledger attributable to the
Intercompany Loans on the first day of the relevant Calculation
Period, less
(c) the amount of the Principal Receipts in the Funding 1 GIC Account
attributable to the Intercompany Loans on the first day of the
relevant Calculation Period.
The Notional Amount shall be determined on the first day of the relevant
Calculation Period after any changes made on such date to the Outstanding
Principal Balance of the Intercompany Loans, the balance of the Principal
Deficiency Ledger attributable to the Intercompany Loans and the amount of
Principal Receipts in the Funding 1 GIC Account have become effective.
REFERENCE LENDERS means Abbey National plc, HSBC Bank plc, Cheltenham &
Gloucester plc, Nationwide Building Society, National Westminster Bank Plc,
Northern Rock plc and Woolwich plc (or their respective successors) and such
additional or replacement residential mortgage lenders as shall be determined
by the Calculation Agent and REFERENCE LENDER means any one of them.
SECOND ISSUER means Permanent Financing (No. 2) PLC.
SWAP PROVIDER AMOUNT means, in respect of an Interest Period, an amount equal
to the sum of each of the Calculation Period Swap Provider Amounts calculated
in respect of the Calculation Periods which end on a date falling within such
Interest Period.
THREE MONTH LIBOR means the weighted average of the rates of interest
(excluding spreads) applicable to any outstanding Intercompany Loan.
TRACKER RATIO means, in respect of a Calculation Period, the Average Tracker
Rate Loan Balance divided by the Average Loan Balance.
TRACKER SPREAD means minus -0.10 per cent. per annum.
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TRACKER SWAP RATE means, in respect of a Calculation Period, a rate of
interest, linked to the Bank of England repo rate, as determined by the Cash
Manager in accordance with the provisions of the Cash Management Agreement.
VARIABLE RATE RATIO means, in respect of a Calculation Period, the Average
Variable Rate Loan Balance divided by the Average Loan Balance.
VARIABLE RATE SPREAD means 1.69 per cent. per annum.
VARIABLE RATE SWAP SVR means, in respect of a Calculation Period, the rate of
interest equal to the average of the standard variable rate or its equivalent
charged to existing borrowers on residential mortgage loans as published from
time to time after excluding the highest and lowest rate, of the Reference
Lenders, as determined by the Cash Manager in good faith and notified to the
Calculation Agent from time to time in accordance with the Cash Management
Agreement.
WEIGHTED AVERAGE FIXED RATE means, in respect of a Calculation Period, the
weighted average (by Outstanding Principal Balance) of the fixed rates of
interest charged to borrowers of Fixed Rate Loans during the relevant
Calculation Period as notified by the Cash Manager in accordance with the
provisions of the Cash Management Agreement.
1. This Confirmation supplements, forms part of, and is subject to, the
Agreement. All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
2. The terms of the Transaction to which this Confirmation relates are as
follows:
PARTY A: Halifax plc
PARTY B: Permanent Funding (No. 1) Limited
TRADE DATE: 14th June, 2002
TERMINATION DATE: The date on which the amount outstanding under
the Intercompany Loans is reduced to zero.
EFFECTIVE DATE: 14th June, 2002
BUSINESS DAY CENTRES
FOR ALL PAYMENTS: London
CALCULATION OF
AMOUNTS: On each Interest Payment Date, the Calculation
Agent shall calculate the Swap Provider Amount
and the Funding 1 Amount for the then current
Interest Period, and forthwith notify Party A,
Party B and the Cash Manager of the amounts so
determined and of the net amount determined as
set out below.
PAYMENTS: If in relation to any Interest Payment Date:
(i) the Swap Provider Amount for the
relevant Interest
44
Period exceeds the Funding 1 Amount for
the relevant Interest Period, Party A
shall pay the amount of such excess to
Party B on such Interest Payment Date;
(ii) the Funding 1 Amount for the relevant
Interest Period exceeds the Swap
Provider Amount for the relevant
Interest Period, Party B shall pay the
amount of such excess to Party A on such
Interest Payment Date;
(iii) the Swap Provider Amount for the
relevant Interest Period is equal to the
Funding 1 Amount for the relevant
Interest Period, no amount shall be due
and payable by either party hereunder in
relation to such Interest Payment Date.
CALCULATION AGENT: Halifax plc acting in its capacity of
Servicer pursuant to the Servicing
Agreement or of Cash Manager pursuant to
the Cash Management Agreement, as the
case may be.
3. MISCELLANEOUS:
Subject to Clause 25 of the Funding 1 Deed of Charge (Supplemental
Provisions Regarding the Security Trustee), any amendments to this
Confirmation or the Agreement will be made only with the prior written
consent of each party to the Agreement.
4. ACCOUNT DETAILS:
Payments to Party A: Bank: Halifax plc
Payment Clearing Services
Trinity Road
Halifax
Sort Code : 11-05-90
Account Number: 00000000
Account Name: Halifax CHAPS Funding
Beneficiary Name: Securitisation E/149-9
05001
Payments to Party B: Bank: The Governor and Company
of the Bank of Scotland
Account Number: 00998318
Sort Code: 12-24-55
Account Name: Permanent Funding (No. 1)
Ltd - Transaction Account
5. NOTICE DETAILS:
Party A: Halifax plc
Address: LP/3/3/SEC
45
Trinity Road
Halifax
West Yorkshire HX1 2RG
Facsimile Number: +44 (0) 113 235 7511
Attention: Head of Mortgage Securitisation
with a copy to:- HBOS Treasury Services plc,
Address: 33 Old Broad Street
London
EC2N 1HZ
Facsimile Number: 020 7574 8784
Attention: Head of Capital Markets and Securitisation
Party B: Permanent Funding (No. 1) Limited
Address: Blackwell House
Guildhall Yard
London
EC2V 5AE
Facsimile Number: 020 7566 0975
Attention: The Secretary
With a copy to:- (i) HBOS Treasury Services plc
Address: 33 Old Broad Street
London
EC2N 1HZ
Facsimile Number: 020 7574 8784
Attention: Head of Capital Markets and Securitisation
(ii) 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 - Corporate Trust
46
Yours faithfully,
HALIFAX PLC
By:
Name:
Title:
Confirmed as of the date first written:
PERMANENT FUNDING (NO. 1) LIMITED
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
47