EXHIBIT 4.12
EXECUTION COPY XXXXX & XXXXX
XXXXX & XXXXX LLP
EIGHTH ISSUER BANK ACCOUNT AGREEMENT
PERMANENT FINANCING (NO. 8) PLC
as Eighth Issuer
and
HALIFAX plc
as Eighth Issuer Cash Manager
and
THE GOVERNMENT AND COMPANY OF THE BANK OF SCOTLAND
as Eighth Issuer Account Bank
and
THE BANK OF NEW YORK
as Security Trustee
and
HBOS TREASURY SERVICES PLC
22nd June, 2005
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.....................................................1
2. The Eighth Issuer Transaction Account..............................................1
3. Additional Eighth Issuer Accounts..................................................2
4. Payments...........................................................................3
5. Mandates and Statements............................................................3
6. Acknowledgement by the Eighth Issuer Account Bank..................................4
7. Certification, Indemnity and Acceleration Notice...................................5
8. Change of Security Trustee or Eighth Issuer Account Bank...........................6
9. Termination........................................................................6
10. Further Assurance..................................................................9
11. Confidentiality....................................................................9
12. Costs.............................................................................10
13. Notices...........................................................................10
14. Interest..........................................................................10
15. Withholding.......................................................................11
16. Tax Status........................................................................11
17. Entire Agreement..................................................................11
18. Variation and Waiver..............................................................12
19. Assignment..........................................................................
20. The Security Trustee..............................................................12
21. Exclusion of Third Party Rights...................................................12
22. Counterparts......................................................................12
23. Governing Law.....................................................................12
24. Submission to Jurisdiction........................................................12
SCHEDULE
1. Form of Eighth Issuer Transaction Account Mandate.................................14
2. Form of Notice of Assignment and Acknowledgement of Assignment....................15
Part 1 Notice of Assignment - Eighth Issuer Accounts............................15
Part 2 Acknowledgement - Eighth Issuer Accounts.................................17
Signatories................................................................................18
THIS EIGHTH ISSUER BANK ACCOUNT AGREEMENT is made on 22nd June, 2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 8) PLC (registered number 5434519), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (the
EIGHTH 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 EIGHTH 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 Eighth
Issuer non-sterling account bank (the EIGHTH ISSUER NON-STERLING
ACCOUNT BANK) and acting in its capacity as Eighth issuer account bank
from the branch located at (in the case of the Eighth Issuer
Transaction Account) 000 Xxxxxxxxxx Xxxxxx, Xxxxx XX0 0XX (the EIGHTH
ISSUER STERLING ACCOUNT BANK and the Eighth Issuer Sterling Account
Bank and the Eighth Issuer Non-Sterling Account Bank, together referred
to as, the EIGHTH ISSUER ACCOUNT BANK);
(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; and
(5) HBOS TREASURY SERVICES PLC, (registered number 02692890) a public
limited company incorporated under the laws of England and Wales whose
registered office is at 00 Xxx Xxxxx Xxxxxx Xxxxxx XX0X 0XX.
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 22nd
June, 2005 (as the same may be amended, varied or supplemented, from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and the eighth issuer
master definitions and construction schedule, signed for the purposes
of identification by Xxxxx & Overy LLP and Sidley Xxxxxx Xxxxx & Xxxx
on 22nd June, 2005 (as the same may be amended, varied or supplemented
from time to time) (the EIGHTH ISSUER MASTER DEFINITIONS AND
CONSTRUCTION SCHEDULE) are expressly and specifically incorporated into
this Agreement and, accordingly, the expressions defined in the Master
Definitions and Construction Schedule and the Eighth Issuer Master
Definitions and Construction Schedule (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 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 Eighth Issuer
Master Definitions and Construction Schedule.
2. THE EIGHTH ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM EIGHTH ISSUER CASH MANAGER TO EIGHTH ISSUER ACCOUNT
BANK
Subject to CLAUSE 7.3, the Eighth Issuer Account Bank shall comply with
any direction of the Eighth Issuer Cash Manager to effect a payment by
debiting the Eighth Issuer Transaction Account if such
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xxxxxxxxx (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 Eighth Issuer Account Bank and/or otherwise (b)
complies with the Eighth Issuer Transaction Account Mandate.
2.2 TIMING OF PAYMENT
The Eighth 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 3.20 p.m. (London time)
on any London Business Day, the Eighth Issuer Account Bank shall make
such payment at the commencement of business on the following London
Business Day for value that day.
2.3 EIGHTH ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Eighth Issuer Account Bank for the operation of the
Eighth Issuer Transaction Account shall be debited to the Eighth 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 Eighth
Issuer Cash Management Agreement, or, following the service of an
Eighth Issuer Note Acceleration Notice (that is not withdrawn), the
Eighth Issuer Deed of Charge, and the Eighth 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 Eighth Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of CLAUSE 2.1, amounts shall only be
withdrawn from the Eighth Issuer Transaction Account to the extent that
such withdrawal does not cause the Eighth Issuer Transaction Account to
become overdrawn.
3. ADDITIONAL EIGHTH ISSUER ACCOUNTS
3.1 TERMINATION OF EIGHTH ISSUER SWAPS
If any or all of the Eighth Issuer Swap Agreements terminate and the
Eighth Issuer is unable to enter into replacement hedging arrangements,
the Eighth Issuer shall instruct the Eighth Issuer Cash Manager to
open, as necessary, the relevant Additional Eighth Issuer Account at
the Eighth Issuer Account Bank. The Eighth Issuer shall deliver a
mandate to the Eighth Issuer Account Bank relating to such Additional
Eighth Issuer Account in accordance with this Agreement and the Eighth
Issuer Deed of Charge.
3.2 OPERATION OF ADDITIONAL EIGHTH ISSUER ACCOUNTS
In the event that an Additional Eighth 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 Eighth Issuer Account Bank shall
comply with any direction of the Eighth Issuer Cash Manager to
effect a payment by debiting the relevant Additional Eighth
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 Eighth
Issuer Account Bank, and/or otherwise (ii) complies with the
mandates of such Additional Eighth Issuer Account;
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(b) the Eighth 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 Eighth 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 Eighth Issuer Cash
Manager from time to time to the Eighth 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) the Eighth 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 3.20 p.m. (London time) or,
in the case of a payment to another account with the Eighth
Issuer Account Bank at the same branch, 4.00 p.m. (London
time)) on any London Business Day, the Eighth 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 Eighth Issuer Account Bank for the
operation of the Additional Eighth Issuer Accounts (if
established) shall be debited to the relevant Additional
Eighth Issuer Account on each Interest Payment Date in
accordance with the order of priority set out in the Eighth
Issuer Cash Management Agreement or following enforcement of
the Eighth Issuer Security, the Eighth Issuer Deed of Charge,
and the Eighth 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 Eighth Issuer Account Bank; and
(e) notwithstanding the provisions of CLAUSE 3.2(A), and subject
to the Eighth Issuer Deed of Charge, amounts shall only be
withdrawn from an Additional Eighth Issuer Account to the
extent that such withdrawals do not cause that Additional
Eighth Issuer Account to become overdrawn.
3.3 EIGHTH ISSUER SWAP COLLATERAL ACCOUNT
In the event that any collateral is posted by an Eighth Issuer Currency
Swap Provider pursuant to any of the Eighth Issuer Currency Swap
Agreements, the Eighth Issuer shall instruct the Eighth Issuer Cash
Manager to open a bank account with HBOS Treasury Services plc for the
purposes of holding such collateral (any such account, an EIGHTH ISSUER
SWAP COLLATERAL ACCOUNT). An Eighth Issuer Swap Collateral Account
shall be opened in respect of each Eighth Issuer Currency Swap Provider
that is required to post collateral pursuant to an Eighth Issuer
Currency Swap Agreement. In the event that any such Eighth Issuer
Currency Swap Account is opened with HBOS Treasury Services plc, the
parties to this Agreement, not including the Eighth Issuer Account
Bank, will enter into an agreement on substantially the same terms as
this Agreement (with such amendments as shall be deemed necessary) in
respect of such Eighth Issuer Swap Collateral Account.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE EIGHTH ISSUER CASH MANAGER
(a) The Eighth Issuer Cash Manager shall before the date upon which any
payment is due to be made from an Eighth Issuer Account (including the
payments due to be made on each Interest Payment Date), submit to the
Eighth Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the
Eighth Issuer Account Bank as to the payments to be made out of the
relevant accounts on such date.
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(b) The Eighth 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 Eighth 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 Eighth Issuer Account Mandate.
5. MANDATES AND STATEMENTS
5.1 SIGNING AND DELIVERY OF MANDATES
The Eighth Issuer has delivered to the Eighth Issuer Account Bank prior
to the Eighth Issuer Closing Date the Eighth Issuer Transaction Account
Mandate in or substantially in the form set out in SCHEDULE 1 hereto
duly executed and relating to the Eighth Issuer Transaction Account,
and the Eighth Issuer Account Bank hereby confirms to the Security
Trustee that the Eighth Issuer Transaction Account Mandate has been
provided to it, that the Eighth Issuer Transaction Account is open and
that the Eighth Issuer Transaction Account Mandate is operative. The
Eighth Issuer agrees that, if an additional account is opened pursuant
to CLAUSE 3.1 (above), it will deliver to the Eighth Issuer Account
Bank a duly executed mandate relating to such Additional Eighth Issuer
Account. The Eighth Issuer Account Bank acknowledges that the Eighth
Issuer Transaction Account Mandate and any other mandates delivered
from time to time pursuant hereto shall be subject to the terms of the
Eighth Issuer Deed of Charge and this Agreement.
5.2 AMENDMENT OR REVOCATION
The Eighth 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 Eighth
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 an Eighth Issuer Account Mandate is
revoked, the Eighth Issuer Account Bank may continue to comply with
that amended Eighth 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 an Eighth Issuer Note Acceleration Notice has been served or that
the appointment of Halifax plc as Eighth Issuer Cash Manager under the
Eighth 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 EIGHTH ISSUER ACCOUNT BANK
6.1 RESTRICTION ON EIGHTH ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Eighth Issuer Account
Mandate, the Eighth Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Eighth Issuer Account with any other
account of the Eighth Issuer Cash Manager, the Eighth Issuer,
the Mortgages Trustee, Funding 1, the Seller, the Security
Trustee or any other person or any liabilities of the Eighth
Issuer Cash Manager, the Eighth Issuer, the 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 Eighth Issuer Account
in or towards satisfaction of any liabilities of the Eighth
Issuer Cash Manager, the Eighth Issuer,
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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 an Eighth 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
Eighth Issuer, or procure the winding-up or liquidation of the
Eighth Issuer or the making of an administration order in
relation to the Eighth Issuer or the filing of documents with
the court in relation to the Eighth Issuer or the service of a
notice of intention to appoint an administrator in relation to
the Eighth Issuer in respect of any of the liabilities of the
Eighth Issuer whatsoever other than to the extent expressly
permitted under the Eighth Issuer Deed of Charge;
(d) agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Eighth Issuer pursuant to
the Transaction Documents subject always to and in accordance
with the order of priority set out in the Eighth Issuer Deed
of Charge;
(e) agrees that it will notify, in accordance with CLAUSE 13, the
Eighth Issuer Cash Manager, the Eighth Issuer and the Security
Trustee if compliance with any instruction would cause any
Eighth 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 Eighth Issuer has, pursuant to the
Eighth 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 Eighth Issuer Accounts and all of its rights
under this Agreement to the Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Eighth Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Eighth Issuer, in (or substantially
in) the form of notice set out in PART 1 of SCHEDULE 2 hereto, the
Eighth Issuer Account Bank shall sign and duly return to the Eighth
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 Eighth Issuer Account Bank shall provide
the Eighth Issuer Cash Manager with a written statement setting out the
amounts standing to the credit of the Eighth 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 Eighth Issuer Account Bank is hereby authorised by the
Eighth Issuer to provide statements in respect of the Eighth Issuer
Accounts, to the Eighth Issuer Cash Manager and the Security Trustee.
7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 EIGHTH ISSUER ACCOUNT BANK TO COMPLY WITH EIGHTH 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 Eighth Issuer
Accounts in accordance with this Agreement, the Eighth
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Issuer Account Bank shall be entitled to act as directed by the Eighth
Issuer Cash Manager pursuant to CLAUSES 2.1 and 4.1 or pursuant to
CLAUSE 3.1, as the case may be, and to rely as to the amount of any
such transfer or payment on the Eighth Issuer Cash Manager's
instructions in accordance with the relevant Eighth Issuer Account
Mandate, and the Eighth Issuer Account Bank shall have no liability to
the Eighth Issuer Cash Manager, the Eighth Issuer or the Security
Trustee for having acted on such instructions except in the case of its
wilful default, fraud or negligence.
7.2 EIGHTH ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Eighth Issuer Cash
Management Agreement or the Eighth Issuer Deed of Charge, as the case
may be, the Eighth Issuer shall indemnify the Eighth 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
Eighth Issuer Account against any loss, cost, damage, charge or expense
incurred by the Eighth 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 Eighth Issuer Account Bank (if any) for the
operation of the Eighth Issuer Accounts other than as provided
in this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any
breach by the Eighth Issuer Account Bank of its obligations
under this Agreement.
7.3 CONSEQUENCES OF AN EIGHTH ISSUER INTERCOMPANY LOAN ACCELERATION NOTICE
OR AN EIGHTH ISSUER NOTE ACCELERATION NOTICE
The Eighth 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) an Eighth Issuer Intercompany Loan
Acceleration Notice, or (ii) an Eighth Issuer Note Acceleration Notice,
or (b) that the appointment of Halifax plc as Eighth Issuer Cash
Manager under the Eighth Issuer Cash Management Agreement has been
terminated (but without prejudice to CLAUSE 7.1 above) all right,
authority and power of the Eighth Issuer Cash Manager in respect of the
Eighth Issuer Accounts shall be terminated and be of no further effect
and the Eighth 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 Eighth Issuer Account Bank on substantially
the same terms as this Agreement) in relation to the operation of the
Eighth Issuer Accounts.
8. CHANGE OF SECURITY TRUSTEE OR EIGHTH 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 Eighth Issuer Deed of Charge, the existing
Security Trustee, the new Security Trustee or the retiring Security
Trustee, as the case may be, the Eighth Issuer Cash Manager, the Eighth
Issuer and the Eighth 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.
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8.2 CHANGE OF EIGHTH ISSUER ACCOUNT BANK
If there is any change in the identity of the Eighth Issuer Account
Bank, then the Eighth Issuer Cash Manager, the Eighth Issuer, the
Security Trustee and any other existing Eighth Issuer Account Bank
shall execute such documents and take such actions as the new Eighth
Issuer Account Bank and the outgoing retiring Eighth Issuer Account
Bank and the Security Trustee may require for the purpose of vesting in
the new Eighth Issuer Account Bank the rights and obligations of the
outgoing Eighth Issuer Account Bank and releasing the outgoing Eighth
Issuer Account Bank from its future obligations under this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
The Eighth Issuer Cash Manager or the Eighth Issuer:
(a) shall (with the prior written consent of the Security Trustee)
terminate this Agreement and close the Eighth Issuer Accounts,
in the event any of the matters specified in paragraphs to
9.1(b)(v) below occur; and
(b) may (with the prior written consent of the Security Trustee)
terminate this Agreement and close the Eighth 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 Eighth 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 Eighth Issuer
Accounts held with it; or
(ii) the short-term, unsecured, unsubordinated and
unguaranteed debt obligations of the Eighth 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 Eighth 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 Eighth 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
(iv) if an order is made or an effective resolution is
passed for the winding-up of the Eighth 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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(v) if proceedings are initiated against the Eighth
Issuer Account Bank under any applicable liquidation,
insolvency, bankruptcy, composition, reorganisation
(other than a reorganisation where the Eighth 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 Eighth Issuer Account Bank or in
relation to the whole or any substantial part of the
undertaking or assets of the Eighth Issuer Account
Bank, or an encumbrancer takes possession of the
whole or any substantial part of the undertaking or
assets of the Eighth 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 Eighth 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 Eighth 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 Eighth 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 Eighth Issuer Cash Manager or the
Security Trustee, as the case may be, has given
notice of such failure.
9.2 TERMINATION OPTION
The Eighth Issuer and the Security Trustee, upon a breach by the Eighth
Issuer Account Bank of its obligations under this Agreement, may, by
giving one month's prior written notice to the Eighth Issuer Account
Bank (with a copy to the Security Trustee), terminate the appointment
of the Eighth 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 Eighth Issuer Notes.
The Eighth Issuer Cash Manager and the Eighth 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 Eighth Issuer Account Bank
shall assist the other parties hereto to effect an orderly transition
of the banking arrangements documented hereby and the Eighth Issuer
shall reimburse the Eighth Issuer Account Bank for its reasonable costs
and any amounts in
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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 Eighth Issuer, the Eighth Issuer Cash Manager and the
Eighth 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 an Eighth Issuer Intercompany Loan
Acceleration Notice or an Eighth Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Eighth
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 Eighth Issuer Account Bank. Following the
service of an Eighth Issuer Intercompany Loan Acceleration Notice or an
Eighth 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 Eighth
Issuer Secured Obligations have been irrevocably discharged in full.
9.6 TERMINATION BY EIGHTH ISSUER ACCOUNT BANK
The Eighth Issuer Account Bank may terminate this Agreement and cease
to operate the Eighth 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
Business Days before an Interest Payment Date to each of the
other parties hereto, if the Eighth 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
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(ii) if the then current ratings of the Eighth Issuer Notes
would be adversely affected thereby.
In either case the Eighth 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 Eighth 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 Eighth Issuer agrees to pay the reasonable costs and any amounts in
respect of Irrecoverable VAT thereon (including reasonable legal costs
and expenses) of the Eighth Issuer Account in connection with the
negotiation of this Agreement and the establishment of the Eighth
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.
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 Eighth 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 Eighth Issuer, to Permanent Financing (No.
8) PLC, 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (facsimile
number x00 (0)00 0000 0000) for the attention of the
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Directors with a copy to HBOS Treasury Services plc, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0)20 7574
8303) 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 Eighth Issuer Account Bank, the Bank of
Scotland, Leeds Business Centre, 000 Xxxxxxxxxx Xxxxxx, Xxxxx,
XX0 0XX (facsimile number x00 (0) 000 000 0000) for the
attention of the Corporate Banking Channel Support with copies
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; 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 Eighth 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 Eighth 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 Eighth Issuer Account or Eighth Issuer Swap Collateral
Account opened with the Eighth Issuer Account Bank, HBOS Treasury
Services plc or any other bank shall be an interest bearing account.
15. WITHHOLDING
All payments by the Eighth 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 Eighth 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 Eighth 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 Eighth Issuer in full by credit to the relevant
Eighth Issuer Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or
withholding which the Eighth Issuer Account Bank has made
pursuant to this CLAUSE 15 and which is subsequently received
by the Eighth Issuer Account Bank.
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16. TAX STATUS
16.1 The Eighth 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 Eighth 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 Eighth 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.
19. ASSIGNMENT
Subject as provided in or contemplated by CLAUSES 6.1(F) and 8.2:
(a) the Eighth Issuer Account Bank may not assign or transfer any
of its rights or obligations hereunder without the prior
written consent of the Eighth Issuer and the Security Trustee;
(b) the Eighth Issuer may not assign or transfer any of its rights
or obligations hereunder without the prior written consent of
the Eighth Issuer Account Bank and the Security Trustee; and
(c) the Eighth 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 Eighth
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 Eighth Issuer Cash Manager, the
Eighth Issuer Account Bank or the Eighth 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.
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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 EIGHTH 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 - EIGHTH 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:22nd June, 2005
Dear Sirs,
RE: PERMANENT FINANCING (NO. 8) 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 EIGHTH 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 Eighth Issuer Transaction Account - account number
00000000 (sort code 12-08-83) 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 Eighth Issuer Account established pursuant to CLAUSE 3.1 of
the Eighth 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 Eighth
Issuer Bank Account Agreement of even date herewith between ourselves,
yourselves, the Security Trustee and Halifax plc in its capacity as
Eighth Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Eighth Issuer Transaction Account and/or any Additional Eighth Issuer Account
established pursuant to CLAUSE 3.1 of the Eighth Issuer Bank Account Agreement
in accordance with the provisions of the Eighth Issuer Cash Management
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Agreement and the Eighth 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 Eighth Issuer Master Definitions
and Construction Schedule referred to in CLAUSE 1 of the Eighth Issuer Deed of
Charge shall have the same meaning in this notice.
Yours faithfully
.......................................
for and on behalf of
PERMANENT FINANCING (NO. 8) PLC
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PART 2
ACKNOWLEDGEMENT - EIGHTH ISSUER ACCOUNTS
To: Permanent Financing (No. 8) PLC
00 Xxxxx Xx. Xxxxx'x
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:22nd June, 2005
Dear Sir,
RE: PERMANENT FINANCING (NO. 8) PLC
We acknowledge receipt of your letter dated 22nd June, 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 Eighth 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
EIGHTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 8) PLC )
in the presence of: )
Witness's Signature:...................
Name: ............................
Address: .......................
EIGHTH ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of )
HALIFAX PLC in the presence of: )
Witness's Signature:...................
Name: ............................
Address: .......................
EIGHTH 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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HBOS TREASURY SERVICES PLC
SIGNED by )
as attorney for and on behalf of )
HBOS TREASURY SERVICES PLC in the )
presence of: )
)
Witness's Signature...................
Name: ............................
Address: .......................
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