Exhibit 4.12
DRAFT 2: 06.11.03
THIRD ISSUER BANK ACCOUNT AGREEMENT
DATED [ ], 2003
PERMANENT FINANCING (NO. 3) PLC
as Third Issuer
and
HALIFAX plc
as Third Issuer Cash Manager
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as Third Issuer Account Bank
and
THE BANK OF NEW YORK
as Security Trustee
* Details of the Third Issuer Transaction Account to be confirmed
XXXXX & XXXXX
London
CONTENTS
Clause Page
1. Definitions and Interpretation.............................................1
2. The Third Issuer Transaction Account.......................................1
3. Payments...................................................................3
4. Mandates and Statements....................................................4
5. Acknowledgement by the Third Issuer Account Bank...........................4
6. Certification, Indemnity and Acceleration Notice...........................6
7. Change of Security Trustee or Third Issuer Account Bank....................6
8. Termination................................................................7
9. Further Assurance.........................................................10
10. Confidentiality...........................................................10
11. Costs.....................................................................10
12. Notices...................................................................10
13. Interest..................................................................11
14. Withholding...............................................................11
15. Tax Status................................................................12
16. Entire Agreement..........................................................12
17. Variation and Waiver......................................................12
18. Assignment................................................................12
19. The Security Trustee......................................................13
20. Exclusion of Third Party Rights...........................................13
21. Counterparts..............................................................13
22. Governing Law.............................................................13
23. Submission to Jurisdiction................................................13
Schedule
1. Form of Third Issuer Transaction Account Mandate..........................14
2. Form of Notice of Charge and Acknowledgement..............................15
Part 1 Notice of Charge - Third Issuer Transaction Account..............15
Part 2 Acknowledgement - Third Issuer Transaction Account...............17
Signatories...................................................................18
THIS THIRD ISSUER BANK ACCOUNT AGREEMENT is made on [ ], 2003
BETWEEN:
(1) PERMANENT FINANCING (NO. 3) PLC (registered number 4907355), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(the Third Issuer);
(2) HALIFAX plc (registered number 02367076), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX in its capacity as
Third Issuer Cash Manager;
(3) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a company established by
an Act of Parliament of Scotland in 1695 and having its head office at Xxx
Xxxxx, Xxxxxxxxx XX0 0XX, acting in its capacity as Third Issuer Account
Bank from the branch located at (in the case of the Third Issuer
Transaction Account) 000 Xxxxxxxxxx Xxxxxx, Xxxxx XX0 0XX; and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, in its
capacity as Security Trustee.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The Amended and Restated Master Definitions and Construction Schedule and
the Third Issuer Master Definitions and Construction Schedule, both signed
for the purposes of identification by Xxxxx & Xxxxx and Xxxxxx Xxxxxx
Xxxxx & Xxxx on o, 2003 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto) are
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Master Definitions and
Construction Schedule and the Third Issuer 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 and the Third Issuer
Master Definitions and Construction Schedule. In the event of a conflict
between the Amended and Restated Master Definitions and Construction
Schedule and the Third Issuer Master Definitions and Construction
Schedule, the Third Issuer Master Definitions and Construction Schedule
shall prevail.
2. THE THIRD ISSUER TRANSACTION ACCOUNT
2.1 Instructions from Third Issuer Cash Manager to Third Issuer Account Bank
Subject to Clause 6.3, the Third Issuer Account Bank shall comply with any
direction of the Third Issuer Cash Manager to effect a payment by debiting
the Third Issuer Transaction Account if such direction (a) is in writing,
is given by telephone and confirmed in writing not later than close of
business on the day on which such direction is given, or is given by the
internet banking service provided by the Third Issuer Account Bank and (b)
complies with the Third Issuer Transaction Account Mandate.
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2.2 Timing of Payment
Without prejudice to the provisions of Clause 3.2, the Third Issuer
Account Bank agrees that if directed pursuant to Clause 2.1 to make any
payment then, subject to Clauses 2.4 and 6.3 below, it will do so prior to
close of business on the London Business Day on which such direction is
received and for value that day provided that, if any direction is
received later than 12.00 p.m. on any London Business Day, the Third
Issuer Account Bank shall make such payment at the commencement of
business on the following London Business Day for value that day.
2.3 Third Issuer Transaction Account Charges
The charges of the Third Issuer Account Bank for the operation of the
Third Issuer Transaction Account shall be debited to the Third Issuer
Transaction Account only on the first day of each month (or, if such day
is not a London Business Day, the next London succeeding Business Day) in
accordance with the order of priority set out in the Third Issuer Cash
Management Agreement, or, following enforcement of the Third Issuer
Security, the Third Issuer Deed of Charge, and the Third Issuer by its
execution hereof irrevocably agrees that this shall be done. The charges
shall be payable at the same rates as are generally applicable to the
business customers of the Third Issuer Account Bank.
2.4 No Overdrawn Balance
Notwithstanding the provisions of Clause 2.1, amounts shall only be
withdrawn from the Third Issuer Transaction Account to the extent that
such withdrawal does not cause the Third Issuer Transaction Account to
become overdrawn.
2.5 Termination of Third Issuer Currency Swaps
In the event of the termination of the Dollar Currency Swaps and/or the
Euro Currency Swaps, the Third Issuer shall instruct the Third Issuer Cash
Manager to open, as necessary, the relevant Third Issuer Non-Sterling
Account at the Third Issuer Non-Sterling Account Bank.
2.6 Operation of Third Issuer Non-Sterling Account
In the event that a Third Issuer Non-Sterling Account is created, the
relevant account shall be operated in accordance with the following
provisions:
(a) subject to Clause 6.3, the Third Issuer Non-Sterling Account Bank
shall comply with any direction of the Third Issuer Cash Manager to
effect a payment by debiting the Third Issuer Non-Sterling Account
if such direction (i) is in writing or is given by telephone and
confirmed in writing not later than close of business on the day on
which such direction is given, and (ii) complies with the mandates
of the Third Issuer Non-Sterling Account;
(b) the Third Issuer Non-Sterling Account Bank shall be entitled to rely
on any direction given by telephone which, in its opinion (acting
reasonably and in good faith), purports to be given by any
Authorised Signatory referred to in the mandates of the Third Issuer
Non-Sterling Account, from time to time and in respect of which the
person giving the direction quotes a code reference notified in
writing by the Third Issuer Cash Manager from time to time to the
Third Issuer Non-Sterling Account Bank and no delay in giving (or
the absence of giving) the written confirmation of
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any such direction shall affect the validity of, or time of giving,
the relevant telephone direction;
(c) without prejudice to the provisions of Clause 3.2, the Third Issuer
Non-Sterling Account Bank agrees that if directed pursuant to Clause
2.6(a) to make any payment then, subject to Clauses 2.6(e) and 6.3
below, it will do so prior to close of business on the London
Business Day on which such direction is received and for value that
day provided that, if any direction is received later than 3.15 p.m.
(or, in the case of a payment to an account held by a member bank of
the Association for Payment Clearing Services (APACS) within the
town clearing area, 3.45 p.m. or, in the case of a payment to
another account with the Third Issuer Non-Sterling Account Bank at
the same branch, 4.00 p.m.) on any London Business Day, the Third
Issuer Non-Sterling Account Bank shall make such payment at the
commencement of business on the following London Business Day for
value that day;
(d) the charges of the Third Issuer Non-Sterling Account Bank for the
operation of the Third Issuer Non-Sterling Account shall be debited
to the Third Issuer Non-Sterling Account only on each Interest
Payment Date in accordance with the order of priority set out in the
Third Issuer Cash Management Agreement or following enforcement of
the Third Issuer Security, the Third Issuer Deed of Charge, and the
Third Issuer by its execution hereof irrevocably agrees that this
shall be done. The charges shall be payable at the same rates as are
generally applicable to the business customers of the Third Issuer
Non-Sterling Account Bank; and
(e) notwithstanding the provisions of Clause 2.6(a), and subject to the
Third Issuer Deed of Charge, amounts shall only be withdrawn from
the Third Issuer Non-Sterling Account to the extent that such
withdrawals do not cause the Third Issuer Non-Sterling Account to
become overdrawn.
3. PAYMENTS
3.1 Instructions from the Third Issuer Cash Manager
(a) The Third Issuer Cash Manager shall, no later than 11.00 a.m. on the
fourth London Business Day before the date upon which any payment is due
to be made from the Third Issuer Transaction Account (including the
payments due to be made on each Interest Payment Date), submit to the
Third Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the Third
Issuer Account Bank as to the payments to be made out of the relevant
accounts on such date.
(b) The Third Issuer Account Bank shall comply with the instructions described
in Clause 3.1(a) and shall effect the payments specified in such
instructions not later than the time specified for payment therein
(provided that the Third Issuer Account Bank shall not have any liability
to any person if it fails to effect timely payment by reason of strike,
computer failure, power cut or other matters beyond its control) on the
relevant date if the instructions comply with the relevant Third Issuer
Transaction Account Mandate.
3.2 Timing of Payment
The Third Issuer Account Bank agrees that it will, not later than 11.00
a.m. (London time) on the second London Business Day prior to each
Interest Payment Date, confirm to the Third Issuer Cash Manager (provided
that such is the case) that it has received irrevocable instructions to
effect payment to the Principal Paying Agent on the relevant Interest
Payment
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Date and specifying the amount of the payment to be made and that, subject
to receipt of funds, it will effect such payment.
4. MANDATES AND STATEMENTS
4.1 Signing and Delivery of Mandates
The Third Issuer has delivered to the Third Issuer Account Bank prior to
the Third Issuer Closing Date the Third Issuer Transaction Account Mandate
in or substantially in the form set out in Schedule 1 hereto duly executed
and relating to the Third Issuer Transaction Account, and the Third Issuer
Account Bank hereby confirms to the Security Trustee that the Third Issuer
Transaction Account Mandate has been provided to it, that the Third Issuer
Transaction Account is open and that the Third Issuer Transaction Account
Mandate is operative. The Third Issuer Account Bank acknowledges that the
Third Issuer Transaction Account Mandate and any other mandates delivered
from time to time pursuant hereto shall be subject to the terms of the
Third Issuer Deed of Charge and this Agreement.
4.2 Amendment or Revocation
The Third Issuer Account Bank agrees that it shall notify the Security
Trustee as soon as is reasonably practicable and in accordance with Clause
12 if it receives any amendment to or revocation of the Third Issuer
Transaction Account Mandate that it holds (other than a change of
Authorised Signatory) and shall require the prior written consent of the
Security Trustee to any such amendment or revocation (other than a change
of Authorised Signatory) but, unless the Third Issuer Transaction Account
Mandate is revoked, the Third Issuer Account Bank may continue to comply
with the amended Third Issuer Transaction Account Mandate (as it may from
time to time be amended in accordance with the provisions of this Clause
4.2) unless it receives notice in writing from the Security Trustee to the
effect that a Third Issuer Note Acceleration Notice has been served or
that the appointment of Halifax plc as Third Issuer Cash Manager under the
Third Issuer Cash Management Agreement has been terminated and shall,
thereafter, act solely on the instructions of the Security Trustee and in
accordance with the terms thereof as provided in Clause 6.3 of this
Agreement.
4.3 Statements
The Third Issuer Account Bank shall, within three London Business Days of
the statement date, submit monthly written statements to the Third Issuer
Cash Manager setting out the amounts standing to the credit of the Third
Issuer Transaction Account at the close of business on the London Business
Day immediately preceding the relevant statement date.
5. ACKNOWLEDGEMENT BY THE THIRD ISSUER ACCOUNT BANK
5.1 Restriction on Third Issuer Account Bank's Rights
Notwithstanding anything to the contrary in the Third Issuer Transaction
Account Mandate, the Third Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge the Third Issuer Transaction Account with any
other account of the Third Issuer Cash Manager, the Third Issuer,
the Mortgages Trustee, Funding 1, the Seller, the Security Trustee
or any other person or any liabilities of the Third Issuer Cash
Manager, the Third Issuer, the Mortgages Trustee, Funding 1, the
Seller, the Security Trustee or any other person to it;
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(b) agrees that it may not exercise any lien, or, to the extent
permitted by law, any set-off or transfer any sum standing to the
credit of or to be credited to its Third Issuer Transaction Account
in or towards satisfaction of any liabilities of the Third Issuer
Cash Manager, the Third Issuer, the Mortgages Trustee, Funding 1,
the Seller, the Security Trustee or any other person owing to it;
(c) in addition to and without prejudice to its rights and obligations
as a Third Issuer Secured Creditor, agrees that it will not take,
and shall not take, any steps whatsoever to recover any amount due
or owing to it pursuant to this Agreement or any other debts
whatsoever owing to it by the Third Issuer, or procure the
winding-up or liquidation of the Third Issuer or the making of an
administration order in relation to the Third Issuer or the filing
of documents with the court in relation to the Third Issuer or the
service of a notice of intention to appoint an administrator in
relation to the Third Issuer in respect of any of the liabilities of
the Third Issuer whatsoever other than to the extent expressly
permitted under the Third Issuer Deed of Charge;
(d) agrees that it shall have recourse only to sums paid to or received
by (or on behalf of) the Third Issuer pursuant to the Transaction
Documents subject always to and in accordance with the order of
priority set out in the Third Issuer Deed of Charge;
(e) agrees that it will notify, in accordance with Clause 12, the Third
Issuer Cash Manager, the Third Issuer and the Security Trustee if
compliance with any instruction would cause the Third Issuer
Transaction Account to have a negative balance, such notification to
be given on the same London Business Day that it determines that
compliance with such instruction would cause any such account to
have a negative balance; and
(f) acknowledges that the Third Issuer has, pursuant to the Third Issuer
Deed of Charge, inter alia, assigned by way of security all its
rights, title, interest and benefit, present and future, in and to,
all sums from time to time standing to the credit of the Third
Issuer Transaction Account and all of its rights under this
Agreement to the Security Trustee.
5.2 Notice of Assignment and Acknowledgement
The Third Issuer Account Bank agrees that promptly upon receipt of a
notice of charge signed by the Third Issuer, in (or substantially in) the
form of notice set out in Part 1 of Schedule 2 hereto, the Third Issuer
Account Bank shall sign and duly return to the Third Issuer, with a copy
to the Security Trustee, an acknowledgement in (or substantially in) the
form of acknowledgement set out in Part 2 of Schedule 2.
5.3 Monthly Statement
Unless and until directed otherwise by the Security Trustee in accordance
with Clause 12, the Third Issuer Account Bank shall provide each of the
Third Issuer Cash Manager, the Third Issuer and the Security Trustee with
a written statement in respect of its Third Issuer Transaction Account on
a monthly basis and also as soon as reasonably practicable after receipt
of a request for a statement. The Third Issuer Account Bank is hereby
authorised by the Third Issuer to provide statements in respect of the
Third Issuer Transaction Account to the Third Issuer Cash Manager and the
Security Trustee.
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6. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
6.1 Third Issuer Account Bank to Comply with Third Issuer Cash Manager's
Instructions
Unless otherwise directed in writing by the Security Trustee pursuant to
Clause 6.3, in making any transfer or payment from the Third Issuer
Transaction Account in accordance with this Agreement, the Third Issuer
Account Bank shall be entitled to act as directed by the Third Issuer Cash
Manager pursuant to Clauses 2.1 and 3.1 or pursuant to Clauses 2.5 and
3.2, as the case may be, and to rely as to the amount of any such transfer
or payment on the Third Issuer Cash Manager's instructions in accordance
with the Third Issuer Transaction Account Mandate, and the Third Issuer
Account Bank shall have no liability to the Third Issuer Cash Manager, the
Third Issuer or the Security Trustee for having acted on such instructions
except in the case of its wilful default, fraud or negligence.
6.2 Third Issuer's Indemnity
Subject to the priority of payments set out in the Third Issuer Deed of
Charge, the Third Issuer shall indemnify the Third Issuer Account Bank or,
pursuant to Clause 6.3, the Security Trustee, as the case may be to the
extent of funds then standing to the credit of the relevant Third Issuer
Transaction Account against any loss, cost, damage, charge or expense
incurred by the Third Issuer Account Bank or the Security Trustee, as the
case may be, in complying with any instruction delivered pursuant to and
in accordance with this Agreement, save that this indemnity shall not
extend to:
(a) the charges of the Third Issuer Account Bank (if any) for the
operation of its Third Issuer Transaction Account other than as
provided in this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any breach by
the Third Issuer Account Bank of its obligations under this
Agreement.
6.3 Consequences of an Third Issuer Intercompany Loan Acceleration Notice or a
Third Issuer Note Acceleration Notice
The Third Issuer Account Bank acknowledges that, if it receives notice in
writing from the Security Trustee to the effect that (a) the Security
Trustee has served (i) a Third Issuer Intercompany Loan Acceleration
Notice, or (ii) a Third Issuer Note Acceleration Notice, or (b) that the
appointment of Halifax plc as Third Issuer Cash Manager under the Third
Issuer Cash Management Agreement has been terminated (but without
prejudice to Clause 6.1 above) all right, authority and power of the Third
Issuer Cash Manager in respect of the Third Issuer Transaction Account
shall be terminated and be of no further effect and the Third Issuer
Account Bank agrees that it shall, upon receipt of such notice from the
Security Trustee, comply with the directions of the Security Trustee or
any successor cash manager appointed by the Security Trustee (subject to
such successor cash manager having entered into an agreement with the
Third Issuer Account Bank on substantially the same terms as this
Agreement) in relation to the operation of the Third Issuer Transaction
Account.
7. CHANGE OF SECURITY TRUSTEE OR THIRD ISSUER ACCOUNT BANK
7.1 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 provisions of the Third Issuer Deed of Charge, the existing Security
Trustee, the new Security Trustee or the retiring Security Trustee, as the
case may be, the Third Issuer Cash Manager, the Third Issuer and the Third
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Issuer Account Bank shall execute such documents and take such actions as
such of the new Security Trustee and the retiring Security Trustee or, as
the case may be, the existing Security Trustee shall agree are reasonably
necessary for the purpose of vesting in such new Security Trustee the
rights, benefits and obligations of the Security Trustee under this
Agreement and releasing the retiring Security Trustee from its future
obligations hereunder.
7.2 Change of Third Issuer Account Bank
If there is any change in the identity of the Third Issuer Account Bank,
then the Third Issuer Cash Manager, the Third Issuer, the Security Trustee
and any other existing Third Issuer Account Bank shall execute such
documents and take such actions as the new Third Issuer Account Bank and
the outgoing retiring Third Issuer Account Bank and the Security Trustee
may require for the purpose of vesting in the new Third Issuer Account
Bank the rights and obligations of the outgoing Third Issuer Account Bank
and releasing the outgoing Third Issuer Account Bank from its future
obligations under this Agreement.
8. TERMINATION
8.1 Termination Events
Subject always to obtaining the prior written consent of the Security
Trustee, the Third Issuer Cash Manager or the Third Issuer shall terminate
this Agreement and shall (in the case of any of the paragraphs (b) to (e)
below) or may (in the case of paragraphs (a) and (f) below) terminate this
Agreement and close the Third Issuer Transaction Account by serving a
written notice of termination on the Third Issuer Account Bank in any of
the following circumstances:
(a) if a deduction or withholding for or on account of any Tax is
imposed, or it appears likely that such a deduction or withholding
will be imposed, in respect of the interest payable on the Third
Issuer Transaction Account; or
(b) the short-term, unsecured, unsubordinated and unguaranteed debt
obligations of the Third Issuer Account Bank cease to have a rating
of at least P-1 from Xxxxx'x, A-1+ from S&P or F1+ from Fitch, as
the case may be; or
(c) if the Third Issuer Account Bank, otherwise than for the purposes of
such amalgamation or reconstruction as is referred to in paragraph
(d) below, ceases or, through an authorised action of the board of
directors of the Third Issuer Account Bank, threatens to cease to
carry on all or substantially all of its business or is deemed
unable to pay its debts as and when they fall due within the meaning
of section 123(1)(a) of the Insolvency Xxx 0000 (on the basis that
the reference in such section to(pound)750 was read as a reference
to(pound)10 million), sections 123(1)(b), (c), (d) and (e) (on the
basis that the words "for a sum exceeding(pound)10 million" were
inserted after the words "extract registered bond" and "extract
registered protest" and section 123(2) of the Insolvency Xxx 0000
(as that Section may be amended) or ceases to be an authorised
institution under the Financial Services and Markets Xxx 0000; or
(d) if an order is made or an effective resolution is passed for the
winding-up of the Third Issuer Account Bank except a winding-up for
the purposes of or pursuant to a solvent amalgamation or
reconstruction the terms of which have previously been approved in
writing by the Security Trustee (such approval not to be
unreasonably withheld or delayed); or
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(e) if proceedings are initiated against the Third Issuer Account Bank
under any applicable liquidation, insolvency, bankruptcy,
composition, reorganisation (other than a reorganisation where the
Third Issuer Account Bank is solvent) or other similar laws
(including, but not limited to, presentation of a petition for an
administration order, the filing of documents with the court for the
appointment of an administrator or the service of a notice of
intention to appoint an administrator) and (except in the case of
presentation of petition for an administration order, the filing of
documents with the court for the appointment of an administrator or
the service of a notice of intention to appoint an administrator)
such proceedings are not, in the reasonable opinion of the Security
Trustee, being disputed in good faith with a reasonable prospect of
success or an administration order is granted or the appointment of
an administrator takes effect or an administrative receiver or other
receiver, liquidator, trustee in sequestration or other similar
official is appointed in relation to the Third Issuer Account Bank
or in relation to the whole or any substantial part of the
undertaking or assets of the Third Issuer Account Bank, or an
encumbrancer takes possession of the whole or any substantial part
of the undertaking or assets of the Third Issuer Account Bank, or a
distress, execution or diligence or other process shall be levied or
enforced upon or sued out against the whole or any substantial part
of the undertaking or assets of the Third Issuer Account Bank and
such possession or process (as the case may be) is not discharged or
otherwise ceases to apply within 30 days of its commencement, or the
Third Issuer Account Bank initiates or consents to judicial
proceedings relating to itself under applicable liquidation,
insolvency, bankruptcy, composition, reorganisation or other similar
laws or makes a conveyance or assignment or assignation for the
benefit of its creditors generally or takes steps with a view to
obtaining a moratorium in respect of any of indebtedness; or
(f) if the Third Issuer Account Bank fails to perform any of its
obligations under this Agreement and such failure remains unremedied
for three London Business Days after the Third Issuer Cash Manager
or the Security Trustee, as the case may be, has given notice of
such failure.
8.2 Termination Option
The Third Issuer and the Security Trustee, upon a breach by the Third
Issuer Account Bank of its obligations under this Agreement, the Bank
Account Agreement, the Funding 1 Guaranteed Investment Contract, the
Mortgages Trustee Guaranteed Investment Contract, the Funding 1 Liquidity
Facility Agreement, the Cash Management Agreement, the Third Issuer Cash
Management Agreement, or the Servicing Agreement may, by giving one
month's prior written notice to the Third Issuer Account Bank (with a copy
to the Security Trustee), terminate the appointment of the Third Issuer
Account Bank, provided that:
(a) such termination shall not be effective until a replacement
financial institution or institutions (in each case (i) with a
short-term unsecured, unsubordinated and unguaranteed debt
obligation rating of at least P-1 (in the case of Moody's) and A-1+
(in the case of S&P) and F1+ (in the case of Fitch) and (ii) being
an authorised institution under the Financial Services and Markets
Act 2000) shall have entered into an agreement in form and substance
similar to this Agreement; and
(b) such termination would not adversely affect the then current ratings
of the Third Issuer Notes.
The Third Issuer Cash Manager and the Third Issuer shall use reasonable
endeavours to agree such terms with such a replacement financial
institution or institutions within 60 days of the
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date of the notice. In the event of such termination the Third Issuer
Account Bank shall assist the other parties hereto to effect an orderly
transition of the banking arrangements documented hereby and the Third
Issuer shall reimburse the Third Issuer Account Bank for its reasonable
costs and any amounts in respect of Irrecoverable VAT thereon (including
reasonable costs and expenses) incurred during the period of, and until
completion of, such transition.
8.3 Notification of Termination Event
Each of the Third Issuer, the Third Issuer Cash Manager and the Third
Issuer Account Bank undertakes and agrees to notify the Security Trustee
in accordance with Clause 12 promptly upon becoming aware thereof of any
event which would or could entitle the Security Trustee to serve a notice
of termination pursuant to Clause 8.4.
8.4 Termination by Security Trustee
In addition, prior to the service of a Third Issuer Intercompany Loan
Acceleration Notice or a Third Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Third Issuer
Transaction Account by serving a notice of termination if any of the
events specified in Clause 8.1(a) to (f) (inclusive) of this Agreement
occurs in relation to the Third Issuer Account Bank. Following the service
of a Third Issuer Intercompany Loan Acceleration Notice or a Third Issuer
Note Acceleration Notice, the Security Trustee may serve a notice of
termination at any time.
8.5 Automatic Termination
This Agreement shall automatically terminate (if not terminated earlier
pursuant to this Clause 8) on the date falling 90 days after all Third
Issuer Secured Obligations have been irrevocably discharged in full.
8.6 Termination by Third Issuer Account Bank
The Third Issuer Account Bank may terminate this Agreement and cease to
operate the Third Issuer Transaction Account at any time:
(a) on giving not less than six months' prior written notice thereof
ending on any London Business Day which does not fall on either an
Interest Payment Date or less than 10 London Business Days before an
Interest Payment Date to each of the other parties hereto without
assigning any reason therefor; and
(b) on giving not less than three months' prior written notice thereof
ending on any London Business Day which does not fall on either an
Interest Payment Date or less than 10 London Business Days before an
Interest Payment Date to each of the other parties hereto, if the
Third Issuer Account Bank shall have demanded payment of its due
charges or any interest and the same shall have remained unpaid for
a period of one month, provided that if the relevant amounts have
been paid on or before the date six weeks after the date of delivery
of such notice the notice shall have no effect,
Provided that such termination shall not take effect:
(i) until a replacement financial institution or institutions (in each
case, (A) with a short-term unsecured, unsubordinated and
unguaranteed debt obligation rating of at least P-1 (in the case of
Moody's) and A-1+ (in the case of S&P) and F1+ (in the case of
Fitch) and (B) being an authorised institution under the Financial
Services and
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Markets Act 2000) shall have entered into an agreement in form and
substance similar to this Agreement; and
(ii) if the then current ratings of the Third Issuer Notes would be
adversely affected thereby.
In either case the Third Issuer Account Bank shall not be responsible for
any costs or expenses occasioned by such termination and cessation. In the
event of such termination and cessation the Third Issuer Account Bank
shall assist the other parties hereto to effect an orderly transition of
the banking arrangements documented hereby.
9. FURTHER ASSURANCE
The parties hereto 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 reasonably desirable to give full effect to the arrangements
contemplated by this Agreement.
10. CONFIDENTIALITY
None of the parties hereto shall during the term of this Agreement or
after its termination disclose to any person whatsoever (except as
provided herein or in any of the Transaction Documents to which it is a
party or with the authority of the other parties hereto or so far as may
be necessary for the proper performance of its obligations hereunder or
unless required by law or any applicable stock exchange requirement or any
governmental or regulatory authority or ordered to do so by a court of
competent jurisdiction or by the Inland Revenue or the Commissioners of
Customs and Excise or the Bank of England or the Financial Services
Authority) any information relating to the business, finances or other
matters of a confidential nature of any other party hereto of which it may
in the course of its duties hereunder have become possessed and each of
the parties hereto shall use all reasonable endeavours to prevent any such
disclosure.
11. COSTS
The Third Issuer agrees to pay the reasonable costs and any amounts in
respect of Irrecoverable VAT thereon (including reasonable legal costs and
expenses) of the Third Issuer Account Bank in connection with the
negotiation of this Agreement and the establishment of the Third Issuer
Transaction Account respectively and the negotiation and execution of any
further documents and the taking of any further action to be executed or
taken pursuant to Clauses 7, 8 (other than Clauses 8.1(b), 8.1(c), 8.1(d),
8.1(e), 8.1(f), 8.5 and 8.6(a)) and 9.
12. 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 5.00 p.m. on a London Business
Day or on the next London Business Day if delivered thereafter or on a day
which is not a London 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 Third Issuer Cash Manager, to Halifax plc,
Xxxxxxx Xxxx (XX/0/0/XXX), Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX
(facsimile number x00 (0) 000 000 0000) for the attention of the
Head of Mortgage Securitisation with a copy to HBOS
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Treasury Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
(facsimile number x00 (000) 0000 0000) for the attention of Head of
Capital Markets and Securitisation;
(b) in the case of the Third Issuer, to Permanent Financing (No. 3) PLC,
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number
x00 (000) 0000 0000) for the attention of the Directors with a copy
to HBOS Treasury Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
(facsimile number x00 (000) 0000 0000) for the attention of Head of
Capital Markets and Securitisation;
(c) in the case of the Security Trustee, to The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44
(000) 0000 0000) for the attention of Global Structured Finance -
Corporate Trust; and
(d) in the case of the Third Issuer Account Bank, the Bank of Scotland
plc, Leeds Business Centre, 000 Xxxxxxxxxx Xxxxxx, Xxxxx, XX0 0XX
(facsimile number x00 (0) 0000 000000) for the attention of the
Associate Director with copies to: Bank of Scotland plc, c/o Halifax
plc, Bradford Business Centre, 00 Xxxx Xxxxxx, Xxxxxxxx XX0 0XX
(facsimile number x00 (0) 0000 000000 for the attention of the
Associate Director; Halifax plc, Xxxxxxx Xxxx (XX/0/0/XXX), Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX (facsimile number x00 (0) 000 000 0000) for
the attention of the Head of Mortgage Securitisation; and HBOS
Treasury Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
(facsimile number x00 (000) 0000 0000) for the attention of Head of
Capital Markets and Securitisation.
13. INTEREST
13.1 The Third Issuer Account Bank shall pay, on the first day of each month
(or if such day is not a London Business Day on the next succeeding London
Business Day) in respect of the preceding month, interest on any cleared
credit balances on the Third Issuer Transaction Account at a rate of
Sterling-LIBOR for three month sterling deposits in respect of such period
less 0.25 per cent. per annum.
13.2 Any Third Issuer Non-Sterling Account opened with the Third Issuer Account
Bank or any other bank shall be an interest bearing account.
14. WITHHOLDING
All payments by the Third Issuer Account Bank under this Agreement shall
be made in full without any deduction or withholding (whether in respect
of set-off, counterclaim, duties, Taxes, charges or otherwise whatsoever)
unless the deduction or withholding is required by law, in which event the
Third Issuer Account Bank shall:
(a) ensure that the deduction or withholding does not exceed the minimum
amount legally required;
(b) pay to the relevant taxation or other authorities within the period
for payment permitted by applicable law the full amount of the
deduction or withholding;
(c) furnish to the Third Issuer or the Security Trustee (as the case may
be) within the period for payment permitted by the relevant law,
either:
(i) an official receipt of the relevant taxation authorities
involved in respect of all amounts so deducted or withheld; or
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(ii) if such receipts are not issued by the taxation authorities
concerned on payment to them of amounts so deducted or
withheld, a certificate of deduction or equivalent evidence of
the relevant deduction or withholding; and
(d) account to the Third Issuer in full by credit to the Third Issuer
Transaction Account of an amount equal to the amount of any rebate,
repayment or reimbursement of any deduction or withholding which the
Third Issuer Account Bank has made pursuant to this Clause 14 and
which is subsequently received by the Third Issuer Account Bank.
15. TAX STATUS
15.1 The Third Issuer Account Bank hereby represents and warrants that it is a
bank for the purposes of section 349 of the Income and Corporation Xxxxx
Xxx 0000, is entering into this Agreement in the ordinary course of its
business, will pay interest pursuant hereto in the ordinary course of such
business, will bring into account payments (other than deposits) made
under this Agreement in computing its income for United Kingdom Tax
purposes and undertakes that it will not cease to be so or to do so
otherwise than as a result of the introduction of, change in, or change in
the interpretation, administration or application of, any law or
regulation or any practice or concession of the United Kingdom Inland
Revenue occurring after the date of this Agreement.
15.2 The Third Issuer Account Bank will procure that any of its successors or
assigns will provide the same representation as to its Tax status as is
provided by the relevant Third Issuer Account Bank in Clause 15.1 above.
16. ENTIRE AGREEMENT
This Agreement and the schedules together constitute the entire agreement
and understanding between the parties in relation to the subject matter
hereof and cancel and replace any other agreement or understanding in
relation thereto.
17. VARIATION AND WAIVER
No variation, waiver or novation of this Agreement or any provision(s) of
this Agreement shall be effective unless it is in writing and executed by
(or by some person duly authorised by) each of the parties hereto. 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. ASSIGNMENT
Subject as provided in or contemplated by Clauses 5.1(f) and 7.2:
(a) the Third Issuer Account Bank may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of
the Third Issuer and the Security Trustee;
(b) the Third Issuer may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Third
Issuer Account Bank and the Security Trustee; and
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(c) the Third Issuer Account Bank may not act through any other branch
other than the branch specified on page 1 of this Agreement without
the prior written consent of the Third Issuer and the Security
Trustee (such consent not to be unreasonably withheld).
19. THE SECURITY TRUSTEE
The Security Trustee has agreed to become a party to this Agreement for
the better preservation and enforcement of its rights under this Agreement
but shall have no responsibility for any of the obligations of, nor assume
any liabilities to, the Third Issuer Cash Manager, the Third Issuer
Account Bank or the Third Issuer hereunder. Furthermore, any liberty or
power which may be exercised or made in the Security Trustee's absolute
discretion without any obligation to give reasons therefor, but shall in
any event be exercised in accordance with the provisions of the Funding 1
Deed of Charge.
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) Xxx 0000 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 signed (manually or by facsimile) and delivered in
one or more counterpart, all of which, taken together, shall constitute
one and the same document.
22. GOVERNING LAW
This Agreement shall be governed by, and 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 hereto have executed this Agreement the day and
year first before written.
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SCHEDULE 1
FORM OF THIRD ISSUER TRANSACTION ACCOUNT MANDATE
In the form attached
14
SCHEDULE 2
FORM OF NOTICE OF CHARGE AND ACKNOWLEDGEMENT
PART 1
NOTICE OF CHARGE - THIRD ISSUER TRANSACTION ACCOUNT
To: The Governor and Company of the Bank of Scotland
000 Xxxxxxxxxx Xxxxxx
Xxxxx
XX0 0XX
For the attention of: Company Secretary
With a copy to: The Bank of New York
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx
X00 0XX
For the attention of: Global Structured Finance - Corporate Trust
Date: o, 2003
Dear Sirs,
Re: Permanent Financing (No. 3) PLC - Account Number o (sort code [12-24-55])
(the Third Issuer Transaction Account)
We hereby give you notice that, by a deed of charge dated of even date herewith
and made between, inter alios, ourselves, Halifax plc and The Bank of New York,
(the Security Trustee), a copy of which is enclosed (the Third Issuer Deed of
Charge), we:
(a) charged by way of first fixed charge all of our right, title, benefit and
interest present and future in, to and under the Third Issuer Transaction
Account and all sums of money standing to the credit thereof and all
interest accruing thereon from time to time; and
(b) assigned all of our right, title, benefit and interest present and future
in, to and under the Third Issuer Bank Account Agreement of even date
herewith between ourselves, yourselves, the Security Trustee and Halifax
plc in its capacity as Third Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the Third
Issuer Transaction Account in accordance with the provisions of the Third Issuer
Cash Management Agreement until such time as you receive notice in writing from
the Security Trustee in which case you shall thereafter comply with all
directions of the Security Trustee.
Please note that the foregoing authorisations and instructions may not be
revoked or varied by ourselves without the prior written consent of the Security
Trustee.
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Please acknowledge receipt of this notice and your acceptance of the
instructions herein contained by signing two copies of the attached form of
acknowledgement, returning one copy to ourselves and sending the other copy
direct to the Security Trustee at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
for the attention of the Global Structured Finance - Corporate Trust.
This notice of charge and assignment is governed by, and construed in accordance
with, the laws of England. Words defined in the Amended and Restated Master
Definitions and Construction Schedule referred to in Clause 1 of the Third
Issuer Deed of Charge shall have the same meaning in this notice.
Yours faithfully
............................................
for and on behalf of
PERMANENT FINANCING (NO. 3) PLC
16
PART 2
ACKNOWLEDGEMENT - THIRD ISSUER TRANSACTION ACCOUNT
To: Permanent Financing (No. 3) PLC
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxx XX0X 0XX
For the attention of the Company Secretary
and to: The Bank of New York
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx
X00 0XX
(the Security Trustee)
For the attention of Global Structured Finance - Corporate Trust
Date: o, 2003
Dear Sir,
Re: Permanent Financing (No. 3) PLC - Account Number o (sort code [12-24-55])
(the Third Issuer Transaction Account)
We acknowledge receipt of your letter dated o, 2003, a copy of which is
attached. Words and expressions defined in that letter have the same meanings
herein.
In consideration of your agreeing to maintain the above account with us, we now
agree and confirm to the Security Trustee that we accept and will comply with
the authorisations and instructions contained in that letter and will not accept
or act upon any instructions contrary thereto unless the same shall be in
writing signed by the Security Trustee.
This acknowledgement is governed by, and construed in accordance with, the laws
of England.
Yours faithfully,
..............................................
for and on behalf of
The Governor and Company of the Bank of Scotland
17
SIGNATORIES
Third Issuer
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 3) PLC )
Third Issuer Cash Manager
SIGNED by )
for and on behalf of )
HALIFAX plc )
Third Issuer Account Bank
SIGNED by )
for and on behalf of )
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND )
)
Security Trustee
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
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