Exhibit 4.12
DRAFT 11/03/2005
SEVENTH ISSUER BANK ACCOUNT AGREEMENT
DATED 23RD MARCH, 2005
PERMANENT FINANCING (NO. 7) PLC
AS SEVENTH ISSUER
AND
HALIFAX PLC
AS SEVENTH ISSUER CASH MANAGER
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AS SEVENTH ISSUER ACCOUNT BANK
AND
THE BANK OF NEW YORK
AS SECURITY TRUSTEE
[XXXXX & XXXXX LOGO]
XXXXX & OVERY LLP
LONDON
ICM:1120458.1
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................................................1
2. The Seventh Issuer Transaction Account...............................................................1
3. Additional Seventh Issuer Accounts...................................................................2
4. Payments.............................................................................................3
5. Mandates and Statements..............................................................................4
6. Acknowledgement by the Seventh Issuer Account Bank...................................................4
7. Certification, Indemnity and Acceleration Notice.....................................................6
8. Change of Security Trustee or Seventh Issuer Account Bank............................................7
9. Termination..........................................................................................7
10. Further Assurance...................................................................................10
11. Confidentiality.....................................................................................10
12. Costs...............................................................................................10
13. Notices.............................................................................................11
14. Interest............................................................................................11
15. Withholding.........................................................................................12
16. Tax Status..........................................................................................12
17. Entire Agreement....................................................................................12
18. Variation and Waiver................................................................................13
19. Assignment..........................................................................................13
20. The Security Trustee................................................................................13
21. Exclusion of Third Party Rights.....................................................................13
22. Counterparts........................................................................................13
23. Governing Law.......................................................................................13
24. Submission to Jurisdiction..........................................................................13
SCHEDULE
1. Form of Seventh Issuer Transaction Account Mandate..................................................14
2. Form of Notice of Assignment and Acknowledgement of Assignment......................................15
Part 1 Notice of Assignment - Seventh Issuer Accounts.............................................15
Part 2 Acknowledgement - Seventh Issuer Accounts..................................................17
Signatories..................................................................................................18
THIS SEVENTH ISSUER BANK ACCOUNT AGREEMENT is made on 23rd March, 2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 7) PLC (registered number 5330776), 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 SEVENTH 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 acting in
its capacity as SEVENTH 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 Seventh
issuer non-sterling account bank (the SEVENTH ISSUER NON-STERLING
ACCOUNT BANK) and acting in its capacity as Seventh issuer account bank
from the branch located at (in the case of the Seventh Issuer
Transaction Account) 000 Xxxxxxxxxx Xxxxxx, Xxxxx XX0 0XX (the SEVENTH
ISSUER STERLING ACCOUNT BANK and the Seventh Issuer Sterling Account
Bank and the Seventh Issuer Non-Sterling Account Bank, together
referred to as, the SEVENTH ISSUER ACCOUNT BANK); 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,
acting 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
signed by, amongst others, the parties to this Agreement and dated 23rd
March, 2005 (as the same may be amended, varied or supplemented, from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and the seventh issuer
master definitions and construction schedule, signed for the purposes
of identification by Xxxxx & Overy LLP and Sidley Xxxxxx Xxxxx & Xxxx
on 23rd March, 2005 (as the same may be amended, varied or supplemented
from time to time) (the SEVENTH ISSUER MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) are expressly and specifically incorporated into
this Agreement and, accordingly, the expressions defined in the Master
Definitions and Construction Schedule and the Seventh Issuer Master
Definitions and Construction Schedule (as so amended, varied or
supplemented from time to time) 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 Master Definitions and
Construction Schedule and the Seventh Issuer Master Definitions and
Construction Schedule.
2. THE SEVENTH ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM SEVENTH ISSUER CASH MANAGER TO SEVENTH ISSUER ACCOUNT
BANK
Subject to CLAUSE 7.3, the Seventh Issuer Account Bank shall comply
with any direction of the Seventh Issuer Cash Manager to effect a
payment by debiting the Seventh 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
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given by the internet banking service provided by the Seventh Issuer
Account Bank and/or otherwise (b) complies with the Seventh Issuer
Transaction Account Mandate.
2.2 TIMING OF PAYMENT
Without prejudice to the provisions of CLAUSE 4.2, the Seventh Issuer
Account Bank agrees that if directed pursuant to CLAUSE 2.1 to make any
payment then, subject to CLAUSES 2.4 and 7.3 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. (London time) on any London Business
Day, the Seventh Issuer Account Bank shall make such payment at the
commencement of business on the following London Business Day for value
that day.
2.3 SEVENTH ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Seventh Issuer Account Bank for the operation of the
Seventh Issuer Transaction Account shall be debited to the Seventh
Issuer Transaction Account only on the first day of each month (or, if
such day is not a London Business Day, the next succeeding London
Business Day) in accordance with the order of priority set out in the
Seventh Issuer Cash Management Agreement, or, following the service of
a Seventh Issuer Note Acceleration Notice (that is not withdrawn), the
Seventh Issuer Deed of Charge, and the Seventh 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 Seventh Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of CLAUSE 2.1, amounts shall only be
withdrawn from the Seventh Issuer Transaction Account to the extent
that such withdrawal does not cause the Seventh Issuer Transaction
Account to become overdrawn.
3. ADDITIONAL SEVENTH ISSUER ACCOUNTS
3.1 TERMINATION OF SEVENTH ISSUER SWAPS
If any or all of the Seventh Issuer Swap Agreements terminate and the
Seventh Issuer is unable to enter into replacement hedging
arrangements, the Seventh Issuer shall instruct the Seventh Issuer Cash
Manager to open, as necessary, the relevant Additional Seventh Issuer
Account at the Seventh Issuer Account Bank. The Seventh Issuer shall
deliver a mandate to the Seventh Issuer Account Bank relating to such
Additional Seventh Issuer Account in accordance with this Agreement and
the Seventh Issuer Deed of Charge.
3.2 OPERATION OF ADDITIONAL SEVENTH ISSUER ACCOUNTS
In the event that an Additional Seventh Issuer Account is created
pursuant to CLAUSE 3.1, the relevant account shall be operated in
accordance with the following provisions:
(a) subject to CLAUSE 7.3, the Seventh Issuer Account Bank shall
comply with any direction of the Seventh Issuer Cash Manager to
effect a payment by debiting the relevant Additional Seventh
Issuer 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 or is given
by the internet banking service provided by the Seventh Issuer
Account Bank, and/or otherwise (ii) complies with the mandates of
such Additional Seventh Issuer Account;
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(b) the Seventh Issuer 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 relevant
Additional Seventh Issuer Account, from time to time and in
respect of which the person giving the direction quotes a code
reference notified in writing by the Seventh Issuer Cash Manager
from time to time to the Seventh Issuer Account Bank and no delay
in giving (or the absence of giving) the written confirmation of
any such direction shall affect the validity of, or time of
giving, the relevant telephone direction;
(c) without prejudice to the provisions of CLAUSE 4.2, the Seventh
Issuer Account Bank agrees that if directed pursuant to CLAUSE
3.2(A) to make any payment then, subject to CLAUSES 3.2(E) and
7.3 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. (London time) (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. (London time) or, in the case of a payment to another
account with the Seventh Issuer Account Bank at the same branch,
4.00 p.m. (London time)) on any London Business Day, the Seventh
Issuer 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 Seventh Issuer Account Bank for the operation
of the Additional Seventh Issuer Accounts (if established) shall
be debited to the relevant Additional Seventh Issuer Account on
each Interest Payment Date in accordance with the order of
priority set out in the Seventh Issuer Cash Management Agreement
or following enforcement of the Seventh Issuer Security, the
Seventh Issuer Deed of Charge, and the Seventh 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 Seventh Issuer
Account Bank; and
(e) notwithstanding the provisions of CLAUSE 3.2(A), and subject to
the Seventh Issuer Deed of Charge, amounts shall only be
withdrawn from an Additional Seventh Issuer Account to the extent
that such withdrawals do not cause that Additional Seventh Issuer
Account to become overdrawn.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE SEVENTH ISSUER CASH MANAGER
(a) The Seventh Issuer Cash Manager shall, no later than 11.00 a.m. (London
time) on the fourth London Business Day before the date upon which any
payment is due to be made from a Seventh Issuer Account (including the
payments due to be made on each Interest Payment Date), submit to the
Seventh Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the
Seventh Issuer Account Bank as to the payments to be made out of the
relevant accounts on such date.
(b) The Seventh Issuer Account Bank shall comply with the instructions
described in CLAUSE 4.1(A) and shall effect the payments specified in
such instructions not later than the time specified for payment therein
(provided that the Seventh 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 Seventh Issuer Account Mandate.
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4.2 TIMING OF PAYMENT
The Seventh 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 Seventh 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 Date and specifying the amount of the payment
to be made and that, subject to receipt of funds, it will effect such
payment.
5. MANDATES AND STATEMENTS
5.1 SIGNING AND DELIVERY OF MANDATES
The Seventh Issuer has delivered to the Seventh Issuer Account Bank
prior to the Seventh Issuer Closing Date the Seventh Issuer Transaction
Account Mandate in or substantially in the form set out in SCHEDULE 1
hereto duly executed and relating to the Seventh Issuer Transaction
Account, and the Seventh Issuer Account Bank hereby confirms to the
Security Trustee that the Seventh Issuer Transaction Account Mandate
has been provided to it, that the Seventh Issuer Transaction Account is
open and that the Seventh Issuer Transaction Account Mandate is
operative. The Seventh Issuer agrees that, if an additional account is
opened pursuant to CLAUSE 3.1 (above), it will deliver to the Seventh
Issuer Account Bank a duly executed mandate relating to such Additional
Seventh Issuer Account. The Seventh Issuer Account Bank acknowledges
that the Seventh Issuer Transaction Account Mandate and any other
mandates delivered from time to time pursuant hereto shall be subject
to the terms of the Seventh Issuer Deed of Charge and this Agreement.
5.2 AMENDMENT OR REVOCATION
The Seventh Issuer Account Bank agrees that it shall notify the
Security Trustee as soon as is reasonably practicable and in accordance
with CLAUSE 13 if it receives any amendment to or revocation of any
Seventh Issuer 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 a Seventh Issuer Account
Mandate is revoked, the Seventh Issuer Account Bank may continue to
comply with that amended Seventh Issuer Account Mandate (as it may from
time to time be amended in accordance with the provisions of this
CLAUSE 5.2) unless it receives notice in writing from the Security
Trustee to the effect that a Seventh Issuer Note Acceleration Notice
has been served or that the appointment of Halifax plc as Seventh
Issuer Cash Manager under the Seventh 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 7.3 of this Agreement.
6. ACKNOWLEDGEMENT BY THE SEVENTH ISSUER ACCOUNT BANK
6.1 RESTRICTION ON SEVENTH ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Seventh Issuer Account
Mandate, the Seventh Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Seventh Issuer Account with any other
account of the Seventh Issuer Cash Manager, the Seventh Issuer,
the Mortgages Trustee, Funding 1, the Seller, the Security
Trustee or any other person or any liabilities of the Seventh
Issuer Cash Manager, the Seventh Issuer, the
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Mortgages Trustee, Funding 1, the Seller, the
Security Trustee or any other person owing to it;
(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 any Seventh Issuer Account in or
towards satisfaction of any liabilities of the Seventh Issuer
Cash Manager, the Seventh 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 Seventh 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 Seventh Issuer,
or procure the winding-up or liquidation of the Seventh Issuer or
the making of an administration order in relation to the Seventh
Issuer or the filing of documents with the court in relation to
the Seventh Issuer or the service of a notice of intention to
appoint an administrator in relation to the Seventh Issuer in
respect of any of the liabilities of the Seventh Issuer
whatsoever other than to the extent expressly permitted under the
Seventh Issuer Deed of Charge;
(d) agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Seventh Issuer pursuant to
the Transaction Documents subject always to and in accordance
with the order of priority set out in the Seventh Issuer Deed
of Charge;
(e) agrees that it will notify, in accordance with CLAUSE 13, the
Seventh Issuer Cash Manager, the Seventh Issuer and the Security
Trustee if compliance with any instruction would cause any
Seventh Issuer 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 Seventh Issuer has, pursuant to the Seventh
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 Seventh Issuer Accounts and all of its rights under this
Agreement to the Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Seventh Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Seventh Issuer, in (or substantially
in) the form of notice set out in PART 1 of SCHEDULE 2 hereto, the
Seventh Issuer Account Bank shall sign and duly return to the Seventh
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.
6.3 MONTHLY STATEMENT
Unless and until directed otherwise by the Security Trustee in
accordance with CLAUSE 13, the Seventh Issuer Account Bank shall
provide each of the Seventh Issuer Cash Manager, the Seventh Issuer
and the Security Trustee with a written statement setting out the
amounts standing to the credit of the Seventh Issuer Accounts at the
close of business on the London Business Day immediately preceding the
relevant statement date and/or such other relevant date set out in a
statement request (i) on a monthly basis and, in any event, within
three London Business Days of the relevant statement date and (ii) as
soon as reasonably practicable after receipt of a request for a
statement. The Seventh Issuer Account Bank is hereby authorised by the
Seventh Issuer to provide statements in respect of the Seventh Issuer
Accounts, to the Seventh Issuer Cash Manager and the Security Trustee.
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7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 SEVENTH ISSUER ACCOUNT BANK TO COMPLY WITH SEVENTH ISSUER CASH
MANAGER'S INSTRUCTIONS
Unless otherwise directed in writing by the Security Trustee pursuant
to CLAUSE 7.3, in making any transfer or payment from the Seventh
Issuer Accounts in accordance with this Agreement, the Seventh Issuer
Account Bank shall be entitled to act as directed by the Seventh Issuer
Cash Manager pursuant to CLAUSES 2.1 and 4.1 or pursuant to CLAUSES 3.1
and 4.2, as the case may be, and to rely as to the amount of any such
transfer or payment on the Seventh Issuer Cash Manager's instructions
in accordance with the relevant Seventh Issuer Account Mandate, and the
Seventh Issuer Account Bank shall have no liability to the Seventh
Issuer Cash Manager, the Seventh Issuer or the Security Trustee for
having acted on such instructions except in the case of its wilful
default, fraud or negligence.
7.2 SEVENTH ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Seventh Issuer Cash
Management Agreement or the Seventh Issuer Deed of Charge, as the case
may be, the Seventh Issuer shall indemnify the Seventh Issuer Account
Bank or, pursuant to CLAUSE 7.3, the Security Trustee, as the case may
be, to the extent of funds then standing to the credit of the relevant
Seventh Issuer Account against any loss, cost, damage, charge or
expense incurred by the Seventh Issuer Account Bank and/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 Seventh Issuer Account Bank (if any) for the
operation of the Seventh Issuer Accounts other than as provided
in this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any breach
by the Seventh Issuer Account Bank of its obligations under this
Agreement.
7.3 CONSEQUENCES OF A SEVENTH ISSUER INTERCOMPANY LOAN ACCELERATION NOTICE
OR A SEVENTH ISSUER NOTE ACCELERATION NOTICE
The Seventh 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 Seventh Issuer Intercompany Loan
Acceleration Notice, or (ii) a Seventh Issuer Note Acceleration Notice,
or (b) that the appointment of Halifax plc as Seventh Issuer Cash
Manager under the Seventh Issuer Cash Management Agreement has been
terminated (but without prejudice to CLAUSE 7.1 above) all right,
authority and power of the Seventh Issuer Cash Manager in respect of
the Seventh Issuer Accounts shall be terminated and be of no further
effect and the Seventh 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 Seventh Issuer
Account Bank on substantially the same terms as this Agreement) in
relation to the operation of the Seventh Issuer Accounts.
8. CHANGE OF SECURITY TRUSTEE OR SEVENTH ISSUER ACCOUNT BANK
8.1 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 Seventh Issuer Deed of
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Charge, the existing Security Trustee, the new Security Trustee or the
retiring Security Trustee, as the case may be, the Seventh Issuer Cash
Manager, the Seventh Issuer and the Seventh 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.
8.2 CHANGE OF SEVENTH ISSUER ACCOUNT BANK
If there is any change in the identity of the Seventh Issuer Account
Bank, then the Seventh Issuer Cash Manager, the Seventh Issuer, the
Security Trustee and any other existing Seventh Issuer Account Bank
shall execute such documents and take such actions as the new Seventh
Issuer Account Bank and the outgoing retiring Seventh Issuer Account
Bank and the Security Trustee may require for the purpose of vesting
in the new Seventh Issuer Account Bank the rights and obligations of
the outgoing Seventh Issuer Account Bank and releasing the outgoing
Seventh Issuer Account Bank from its future obligations under this
Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
The Seventh Issuer Cash Manager or the Seventh Issuer:
(a) shall (with the prior written consent of the Security Trustee)
terminate this Agreement and close the Seventh Issuer Accounts,
in the event any of the matters specified in paragraphs (ii) to
(v) below occur; and
(b) may (with the prior written consent of the Security Trustee)
terminate this Agreement and close the Seventh Issuer Accounts,
in the event any of the matters specified in paragraphs (i) and
(vi) below occur,
in each case, by serving a written notice of termination on the Seventh
Issuer Account Bank in the following circumstances
(i) 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 any of the Seventh Issuer Accounts held with it;
or
(ii) the short-term, unsecured, unsubordinated and unguaranteed
debt obligations of the Seventh 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, unless each
rating agency confirms that its then current rating of the
Notes would not be adversely affected as a result of such
ratings falling below these minimum ratings; or
(iii) if the Seventh 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 Seventh
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
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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
(iv) if an order is made or an effective resolution is passed
for the winding-up of the Seventh 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
(v) if proceedings are initiated against the Seventh Issuer
Account Bank under any applicable liquidation, insolvency,
bankruptcy, composition, reorganisation (other than a
reorganisation where the Seventh 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
Seventh Issuer Account Bank or in relation to the whole or
any substantial part of the undertaking or assets of the
Seventh Issuer Account Bank, or an encumbrancer takes
possession of the whole or any substantial part of the
undertaking or assets of the Seventh 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 Seventh 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
Seventh 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
(vi) if the Seventh 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
Seventh Issuer Cash Manager or the Security Trustee, as the
case may be, has given notice of such failure.
9.2 TERMINATION OPTION
The Seventh Issuer and the Security Trustee, upon a breach by the
Seventh Issuer Account Bank of its obligations under this Agreement,
may, by giving one month's prior written notice to the Seventh Issuer
Account Bank (with a copy to the Security Trustee), terminate the
appointment of the Seventh Issuer Account Bank, provided that:
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(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 Seventh Issuer Notes.
The Seventh Issuer Cash Manager and the Seventh Issuer shall use
reasonable endeavours to agree such terms with such a replacement
financial institution or institutions within 60 days of the date of the
notice. In the event of such termination the Seventh Issuer Account
Bank shall assist the other parties hereto to effect an orderly
transition of the banking arrangements documented hereby and the
Seventh Issuer shall reimburse the Seventh 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.
9.3 NOTIFICATION OF TERMINATION EVENT
Each of the Seventh Issuer, the Seventh Issuer Cash Manager and the
Seventh Issuer Account Bank undertakes and agrees to notify the
Security Trustee in accordance with CLAUSE 13 promptly upon becoming
aware thereof of any event which would or could entitle the Security
Trustee to serve a notice of termination pursuant to CLAUSES 9.2 TO 9.4
(inclusive).
9.4 TERMINATION BY SECURITY TRUSTEE
In addition, prior to the service of a Seventh Issuer Intercompany Loan
Acceleration Notice or a Seventh Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Seventh
Issuer Accounts by serving a notice of termination if any of the events
specified in CLAUSE 9.1(B)(I) to (VI) (inclusive) of this Agreement
occurs in relation to the Seventh Issuer Account Bank. Following the
service of a Seventh Issuer Intercompany Loan Acceleration Notice or a
Seventh Issuer Note Acceleration Notice, the Security Trustee may serve
a notice of termination at any time.
9.5 AUTOMATIC TERMINATION
This Agreement shall automatically terminate (if not terminated earlier
pursuant to this CLAUSE 9) on the date falling 90 days after all
Seventh Issuer Secured Obligations have been irrevocably discharged in
full.
9.6 TERMINATION BY SEVENTH ISSUER ACCOUNT BANK
The Seventh Issuer Account Bank may terminate this Agreement and cease
to operate the Seventh Issuer Accounts 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
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Business Days before an Interest Payment Date to each of the
other parties hereto, if the Seventh 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
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 Seventh Issuer Notes
would be adversely affected thereby.
In either case the Seventh 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 Seventh Issuer
Account Bank shall assist the other parties hereto to effect an orderly
transition of the banking arrangements documented hereby.
10. 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.
11. 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.
12. COSTS
The Seventh Issuer agrees to pay the reasonable costs and any amounts
in respect of Irrecoverable VAT thereon (including reasonable legal
costs and expenses) of the Seventh
Issuer Account in connection with the negotiation of this Agreement
and the establishment of the Seventh Issuer Accounts 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 8, 9 (other than CLAUSES 9.1(B)(II), 9.1(B)(III),
9.1(B)(IV), 9.1(B)(V), 9.1(B)(VI), 9.5 and 9.6(A)) and 10.
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13. 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.
(London time) 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 Seventh 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 Treasury
Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (0)00 0000 0000) for the attention of Head of Mortgage
Securitisation and Covered Bonds;
(b) in the case of the Seventh Issuer, to Permanent Financing (No. 7)
PLC, Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (0)00 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 (0)00 0000 0000) for the
attention of Head of Mortgage Securitisation and Covered Bonds;
(c) in the case of the Security Trustee, to The Bank of New York,
00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number
x00 (0)00 0000 0000) for the attention of Global Structured
Finance - Corporate Trust; and
(d) in the case of the Seventh Issuer Account Bank, the Bank of
Scotland, 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, 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 (0)00 0000 0000)
for the attention of Head of Mortgage Securitisation and Covered
Bonds.
14. INTEREST
14.1 The Seventh Issuer Account Bank shall pay, on the last Business day of
each month in respect of the current month, interest on any cleared
credit balances on the Seventh 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.
14.2 Any Additional Seventh Issuer Account opened with the Seventh Issuer
Account Bank or any other bank shall be an interest bearing account.
15. WITHHOLDING
All payments by the Seventh 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 Seventh Issuer Account Bank shall:
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(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 Seventh 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
(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 Seventh Issuer in full by credit to the relevant
Seventh Issuer Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or
withholding which the Seventh Issuer Account Bank has made
pursuant to this CLAUSE 15 and which is subsequently received by
the Seventh Issuer Account Bank.
16. TAX STATUS
16.1 The Seventh 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.
16.2 The Seventh 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 Seventh Issuer Account Bank in CLAUSE 16.1
above.
17. 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.
18. 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.
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19. ASSIGNMENT
Subject as provided in or contemplated by CLAUSES 6.1(F) and 8.2:
(a) the Seventh Issuer Account Bank may not assign or transfer any of
its rights or obligations hereunder without the prior written
consent of the Seventh Issuer and the Security Trustee;
(b) the Seventh Issuer may not assign or transfer any of its rights
or obligations hereunder without the prior written consent of the
Seventh Issuer Account Bank and the Security Trustee; and
(c) the Seventh 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 Seventh Issuer
and the Security Trustee (such consent not to be unreasonably
withheld).
20. 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 Seventh Issuer Cash Manager, the
Seventh Issuer Account Bank or the Seventh 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.
21. 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.
22. 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.
23. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
24. 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 SEVENTH ISSUER TRANSACTION ACCOUNT MANDATE
IN THE FORM ATTACHED
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SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT OF ASSIGNMENT
PART 1
NOTICE OF ASSIGNMENT - SEVENTH ISSUER ACCOUNTS
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] , 2005
Dear Sirs,
RE: PERMANENT FINANCING (NO. 7) PLC
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 SEVENTH ISSUER DEED OF
CHARGE), we:
(a) assigned (or to the extent not assignable charged) by way of first
fixed security all of our right, title, benefit and interest present
and future in and, to now or in the future all moneys standing to the
credit of the Seventh Issuer Transaction Account - account number [o]
(sort code [12-24-55]) and all interest accruing thereon from time to
time;
(b) assigned (or to the extent not assignable charged) by way of first
fixed security all of our right, title, benefit and interest present
and future in and to all moneys standing to the credit of any
Additional Seventh Issuer Account established pursuant to CLAUSE 3.1 of
the Seventh Issuer Bank Account Agreement and all interest accruing
thereon from time to time;
(c) assigned by way of first fixed security all of our right, title,
benefit and interest present and future in, to and under the Seventh
Issuer Bank Account Agreement of even date herewith between ourselves,
yourselves, the Security Trustee and Halifax plc in its capacity as
Seventh Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Seventh Issuer Transaction Account and/or any Additional Seventh Issuer Account
established pursuant to CLAUSE
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3.1 of the Seventh Issuer Bank Account Agreement in accordance with the
provisions of the Seventh Issuer Cash Management Agreement and the Seventh
Issuer Deed of Charge 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.
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 Seventh Issuer Master
Definitions and Construction Schedule referred to in CLAUSE 1 of the Seventh
Issuer Deed of Charge shall have the same meaning in this notice.
Yours faithfully
................................
for and on behalf of
PERMANENT FINANCING (NO. 7) PLC
16
PART 2
ACKNOWLEDGEMENT - SEVENTH ISSUER ACCOUNTS
To: Permanent Financing (No. 7) 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], 2005
Dear Sir,
RE: PERMANENT FINANCING (NO. 7) PLC
We acknowledge receipt of your letter dated [o], 2005, 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 or establish the Seventh Issuer
Accounts 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
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SIGNATORIES
SEVENTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 7) PLC )
in the presence of: )
Witness's Signature:...................
Name: ............................
Address: .......................
SEVENTH ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of )
HALIFAX PLC in the presence of: )
Witness's Signature:...................
Name: ............................
Address: .......................
SEVENTH ISSUER ACCOUNT BANK
SIGNED by )
as attorney for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND in the )
presence of: )
Witness's Signature...................
Name: ............................
Address: .......................
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
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