Exhibit 4.8
DRAFT
THIRD AMENDMENT AGREEMENT TO CASH
MANAGEMENT AGREEMENT
DATED [1st April], 2004
ABBEY NATIONAL PLC
and
XXXXXX TRUSTEES LIMITED
and
XXXXXX FUNDING LIMITED
and
JPMORGAN CHASE BANK, LONDON XXXXXX
XXXXX & XXXXX
LONDON
CONTENTS
Clause Page
1. Definitions and Interpretation.............................................2
2. Amendments.................................................................2
3. Miscellaneous..............................................................6
THIS [THIRD] AMENDMENT AGREEMENT TO THE CASH MANAGEMENT AGREEMENT is made on
[1st April], 2004
BETWEEN:
(1) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House, 0
Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX in its capacity as cash
manager (the Cash Manager, which expression shall include such other
person as may from time to time be appointed as cash manager pursuant to
this Agreement);
(2) ABBEY NATIONAL PLC, a public limited company incorporated under the laws
of England and Wales whose registered office is at Abbey National House, 0
Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx XX0 0XX in its capacity as Seller of
the Loans (the Seller);
(3) XXXXXX TRUSTEES LIMITED (registered number 3982431), a private limited
company incorporated under the laws of England and Wales whose registered
office is at Abbey National House, 0 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx
XX0 0XX (the Mortgages Trustee);
(4) XXXXXX FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales whose registered
office is Abbey National House, 2 Xxxxxx Xxxxxx, Xxxxxx'x Xxxxx, Xxxxxx
XX0 0XX (Funding and, together with the Seller, the Beneficiaries); and
(5) JPMORGAN CHASE BANK, LONDON BRANCH whose principal office is at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX in its capacity as trustee
(the Security Trustee which expression shall include such company and all
other persons or companies for the time being acting as the trustee or
trustees under the Funding Deed of Charge, the Issuer Deeds of Charge and
the Trust Deed).
WHEREAS:
(A) The Cash Manager is providing Cash Management Services to the Mortgages
Trustee, Funding and the Security Trustee on the terms and subject to the
conditions contained in the Cash Management Agreement.
(B) On 29th November, 2000 the parties hereto agreed to amend the terms of the
Cash Management Agreement to provide for the creation of the Second Issuer
Fund.
(C) The parties agreed on 26th March, 2003 to further amend the terms of the
Cash Management Agreement to reflect the creation of the Funding Liquidity
Reserve Fund.
(D) The parties have agreed to further amend the terms of the Cash Management
Agreement to reflect the creation of the Funding Reserve Fund and the
establishment of the Cash Accumulation Sub-Ledger.
(E) The parties to the Cash Management Agreement have agreed to amend the
terms of the Cash Management Agreement as set out herein.
IT IS HEREBY AGREED as follows:
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1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx
and May on [1st April], 2004 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) is
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule.
2. AMENDMENTS
2.1 Clause 1.1 of the Cash Management Agreement is hereby amended by deleting
the current Clause 1.1 in its entirety, and replacing it with the
following new Clause 1.1:
"The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx
and May on [1st April], 2004 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) is
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated Master
Definitions and Construction Schedule (as so amended, varied or
supplemented) shall, except where the context otherwise requires and save
where otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 2 of the
Amended and Restated Master Definitions and Construction Schedule.".
2.2 Clause 4.3(a) of the Cash Management Agreement is hereby amended by
deleting the current Clause 4.3(a) in its entirety, and replacing it with
the following new Clause 4.3(a):
"(a) The Cash Manager shall open and maintain in the books of Funding
certain ledgers to be known as the Funding Revenue Ledger, the
Funding Principal Ledger, the First Reserve Ledger, the Second
Reserve Ledger, the Funding Liquidity Reserve Ledger, the Funding
Reserve Ledger, the Cash Accumulation Ledger and the Cash
Accumulation Sub-Ledger which shall reflect the aggregate of all
amounts of cash standing to the credit of the Funding GIC Account
and the Funding Transaction Account and all amounts invested in
Authorised Investments purchased from amounts standing to the credit
of the Funding GIC Account and the Funding Transaction Account from
time to time.".
2.3 Clause 4.4(b) is hereby amended by deleting the current Clause 4.4(b) in
its entirety, and replacing it with the following new Clause 4.4(b):
"(b) The Cash Manager shall procure that the following amounts are paid
into the Funding GIC Account:
(i) all Funding Revenue Receipts;
(ii) all Funding Principal Receipts;
(iii) all amounts received by Funding pursuant to the Funding Swap
Agreement (other than any amounts of collateral required to be
posted by the Funding
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Swap Provider which shall be paid into an account established
in the name of Funding for such purpose); and
(iv) any other amounts whatsoever received by or on behalf of
Funding after the Initial Closing Date,
and the Cash Manager shall procure that all interest earned on the
Funding Bank Accounts and all investment proceeds from Authorised
Investments purchased from amounts standing to the credit of the
Funding GIC Account are credited to such account except that any
interest earned on any account into which any collateral under the
Funding Swap Agreement or any investment proceeds from Authorised
Investments in which such collateral is invested shall be paid into
the account established by Funding into which any collateral under
the Funding Swap Agreement is paid.
2.4 A new Clause 4.7 shall be inserted immediately after the existing Clause
4.6 as follows:
"4.7 Collateral posted under the Funding Swap Agreement
Any and all amounts of collateral provided to Funding by the Funding
Swap Provider pursuant to the Funding Swap Agreement will be paid
into an account which will be established by Funding or otherwise
invested by the Cash Manager on behalf of Funding in Authorised
Investments.
For the avoidance of doubt, references in this Agreement to amounts
received from the Funding Swap Provider under the Funding Swap
Agreement will, save as provided below exclude any and all amounts
of collateral provided to Funding by the Funding Swap Provider.
Any and all amounts standing to the credit of the account
established by Funding into which any collateral under the Funding
Swap Agreement is paid shall not be available to the Cash Manager
for application in accordance with any of the Funding Priority of
Payments unless, and subject always to the terms of any applicable
supplemental deed of charge to the Funding Deed of Charge, there is
an early termination of the Funding Swap Agreement and such funds
are not going to be applied by Funding in or towards the costs of
entering into a replacement swap agreement. Following such an event,
the value of the relevant collateral will be applied against an
amount equal to the termination amount that would have been payable
by the Funding Swap Provider had such collateral not been provided
and such funds will be available to be treated as a termination
payment under the relevant Funding Swap Agreement and will be
available for application by the Cash Manager in accordance with the
relevant Funding Post-Enforcement Priority of Payments."
2.5 Schedule 1 item (a) shall be deleted and replaced in its entirety with the
following:
"(a) operate the Mortgages Trustee GIC Account, the Funding GIC Account,
the Funding Transaction Account and any account established by
Funding into which any collateral under the Funding Swap Agreement
is paid and ensure that payments are made into and from such
accounts in accordance with this Agreement, the Mortgages Trust
Deed, the Funding Deed of Charge, the Bank Account Agreement, the
Mortgages Trustee Guaranteed Investment Contract, the Funding
Guaranteed Investment Contract and any other applicable Transaction
Document PROVIDED HOWEVER THAT nothing herein shall require the Cash
Manager to make funds
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available to the Mortgages Trustee or Funding to enable such
payments to be made other than as expressly required by the
provisions of this Agreement;"
2.6 Schedule 1 item (i) shall be deleted and replaced in its entirety with the
following:
"(i) At the request of Funding (but also with the prior written consent
of the Security Trustee), the Cash Manager shall invest monies
standing from time to time to the credit of the Funding GIC Account
and any and all amounts standing to the credit of the account
established by Funding into which any collateral under the Funding
Swap Agreement is paid in Authorised Investments, subject to the
following provisions:
(i) any such Authorised Investment shall be made in the joint
names of Funding and the Security Trustee; and
(ii) any costs properly and reasonably incurred in making and
changing Authorised Investments will be reimbursed to the Cash
Manager and the Security Trustee by Funding; and
(iii) all income or proceeds following the disposal or maturity of
Authorised Investments shall be credited to the Funding GIC
Account;
(iv) the Security Trustee and the Cash Manager shall not be
responsible (save where any loss results from the Security
Trustee's or the Cash Manager's own fraud, wilful default or
negligence or that of its officers or employees) for any loss
occasioned by reason of any such Authorised Investments
whether by depreciation in value or otherwise provided that
such Authorised Investments were made in accordance with the
above provisions."
2.7 Schedule 2 of the Cash Management Agreement is hereby amended by deleting
the current paragraph 18 in its entirety and replacing it with the
following paragraph 18:
"Reserve Ledgers
(a) On each Interest Payment Date, the Cash Manager shall determine the
First Reserve Fund Required Amount and the First Reserve Fund
Additional Required Amount;
(b) On each Interest Payment Date, the Cash Manager shall determine the
Second Reserve Fund Required Amount (as defined below) which shall
apply for the period from but excluding that Interest Payment Date
to and including the next following Interest Payment Date.
(c) A First Reserve Tranche (if any) drawn down on a relevant Closing
Date by Funding pursuant to a Start-Up Loan Agreement [or otherwise
from the Funding Reserve Fund if so agreed by Funding, the Seller
and the Security Trustee] will be credited to the First Reserve
Ledger.
(d) Amounts shall be credited to the First Reserve Ledger, the Second
Reserve Ledger and the Funding Reserve Ledger in accordance with the
Funding Priority of Payments above.
(e) On each Interest Payment Date following a Funding Liquidity Reserve
Fund Relevant Event, the Cash Manager shall determine the Funding
Liquidity Reserve Required Amount which shall apply for the period
from but excluding that Interest Payment Date to and including the
next following Interest Payment Date.
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(f) Amounts shall be debited to the First Reserve Ledger, the Second
Reserve Ledger, the Funding Reserve Ledger and the Funding Liquidity
Reserve Ledger on each Interest Payment Date in order to be applied
in accordance with the order of priority of payments set out in
Schedule 3 to the Funding Deed of Charge.
"Second Reserve Fund Required Amount" shall mean an amount equal to
"X" where "X" is calculated on each Interest Payment Date as
follows:
A x B x C = X
where,
A = (LIBOR for three-month Sterling deposits + 0.65 per cent.)
- (the weighted average yield on the Loans in the Mortgages
Trust + (the blended margin on the Funding Swap)
B = the aggregate Outstanding Principal Balance of all the
Term Advances
C = the weighted average life of all the Term Advances. The
weighted average life of the Term Advances will be calculated
as being the greater of 2.5 years or the weighted average life
calculated on the following assumptions:
I. the lower of a 15% CPR and the actual 12 month rolling
CPR;
II. the Eighth Issuer not exercising its option to redeem
the Eighth Issuer Notes (other than the Series 1 Class A
Eighth Issuer Notes and the Series 2 Class A Seventh
Issuer Notes) on the Interest Payment Date falling in
January 2009, Xxxxxx Financing (No. 7) not exercising
its option to redeem the Seventh Issuer Notes (other
than the Series 1 Class A Seventh Issuer Notes and the
Series 2 Class A Seventh Issuer Notes) on the Interest
Payment Date falling in April 2008, Xxxxxx Financing
(No. 6) PLC not exercising its option to redeem the
Sixth Issuer Notes (other than the Series 1 Class A
Sixth Issuer Notes and the Series 2 Class A Sixth Issuer
Notes) on the Interest Payment Date falling in April
2008, Xxxxxx Financing (No. 5) PLC not exercising its
option to redeem the Fifth Issuer Notes (other than the
Series 1 Class A Fifth Issuer Notes and the Series 2
Class A Fifth Issuer Notes) on the Interest Payment Date
falling in October 2006, Xxxxxx Financing (No. 4) PLC
not exercising its option to redeem the Fourth Issuer
Notes (other than the Series 3 Class D Fourth Issuer
Notes and the Series 4 Fourth Issuer Notes) on the
Interest Payment Date falling in July 2006, Xxxxxx
Financing (No. 4) PLC not exercising its option to
redeem its Series 4 Fourth Issuer Notes on the Interest
Payment Date falling in October 2006, Xxxxxx Financing
(No.3) PLC not exercising its option to redeem the Third
Issuer Notes on the Interest Payment Date falling in
July 2006, Xxxxxx Financing (No.2) PLC not exercising
its option to redeem the Second Issuer Notes on the
Interest Payment Date falling in
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October 2007 and Xxxxxx Financing (No.1) PLC not
exercising its option to redeem the First Issuer Notes
on the Interest Payment Date falling in July 2010.
2.8 Schedule 3B of the Cash Management Agreement is hereby amended so that
references to "Reserve Fund" in that Form of Quarterly Report shall be
deemed to be references to the First Reserve Fund, the Second Reserve
Fund, the Funding Reserve Fund and the Funding Liquidity Reserve Fund. The
parties hereto also agree that each Quarterly Report made after the date
hereof shall include reference to the Third Issuer, the Fourth Issuer, the
Fifth Issuer, the Sixth Issuer, the Seventh Issuer, the Eighth Issuer and
any New Issuer.
3. MISCELLANEOUS
3.1 Save as expressly amended by this Agreement, the Cash Management Agreement
shall remain in full force and effort. The Agreement shall form part of
the Cash Management Agreement and references therein to "this Agreement"
shall be read as references to the Cash Management Agreement as amended by
this Agreement.
3.2 This Agreement may be executed (manually or by facsimile) in any number of
counterparts and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
3.3 This Agreement shall be governed by and construed in accordance with the
laws of England.
3.4 A person who is not a party to this Agreement may not enforce any of its
terms under the Contracts (Rights of Third Parties) Xxx 0000.
AS WITNESS whereof the parties hereto have executed this Agreement for delivery
on the day and year first before written.
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SIGNATORIES
Signed by )
for and on behalf of )
ABBEY NATIONAL PLC )
as Seller and Cash Manager )
Signed by )
for and on behalf of )
XXXXXX TRUSTEES LIMITED )
Signed by )
for and on behalf of )
XXXXXX FUNDING LIMITED )
Signed by )
for and on behalf of )
JPMORGAN CHASE BANK, )
LONDON BRANCH )
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