Exhibit 4.12
EXECUTION COPY
SIXTH ISSUER BANK ACCOUNT AGREEMENT
DATED 18TH NOVEMBER, 2004
PERMANENT FINANCING (NO. 6) PLC
AS SIXTH ISSUER
AND
HALIFAX PLC
AS SIXTH ISSUER CASH MANAGER
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AS SIXTH ISSUER ACCOUNT BANK
AND
THE BANK OF NEW YORK
AS SECURITY TRUSTEE
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
ICM:1120458.1
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................................................1
2. The Sixth Issuer Transaction Account.................................................................1
3. Additional Sixth Issuer Accounts.....................................................................2
4. Payments.............................................................................................3
5. Mandates and Statements..............................................................................4
6. Acknowledgement by the Sixth Issuer Account Bank.....................................................4
7. Certification, Indemnity and Acceleration Notice.....................................................6
8. Change of Security Trustee or Sixth Issuer Account Bank..............................................6
9. Termination..........................................................................................7
10. Further Assurance...................................................................................10
11. Confidentiality.....................................................................................10
12. Costs...............................................................................................10
13. Notices.............................................................................................11
14. Interest............................................................................................11
15. Withholding.........................................................................................11
16. Tax Status..........................................................................................12
17. Entire Agreement....................................................................................12
18. Variation and Waiver................................................................................12
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 Sixth Issuer Transaction Account Mandate....................................................14
2. Form of Notice of Assignment and Acknowledgement of Assignment......................................15
Part 1 Notice of Assignment - Sixth Issuer Accounts..............................................15
Part 2 Acknowledgement - Sixth Issuer Accounts...................................................17
Signatories...............................................................................................18
THIS SIXTH ISSUER BANK ACCOUNT AGREEMENT is made on 18th November, 2004
BETWEEN:
(1) PERMANENT FINANCING (NO. 6) PLC (registered number 5232464), 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 SIXTH 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 SIXTH 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 sixth issuer
non-sterling account bank (the SIXTH ISSUER NON-STERLING ACCOUNT BANK)
and acting in its capacity as sixth issuer account bank from the branch
located at (in the case of the Sixth Issuer Transaction Account) 000
Xxxxxxxxxx Xxxxxx, Xxxxx XX0 0XX (the SIXTH ISSUER STERLING ACCOUNT
BANK and the Sixth Issuer Sterling Account Bank and the Sixth Issuer
Non-Sterling Account Bank, together referred to as, the SIXTH 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 18th
November, 2004 (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 sixth issuer
master definitions and construction schedule, signed for the purposes
of identification by Xxxxx & Xxxxx LLP and Sidley Xxxxxx Xxxxx & Xxxx
on 18th November, 2004 (as the same may be amended, varied or
supplemented from time to time) (the SIXTH 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 Sixth 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 Sixth Issuer Master Definitions and
Construction Schedule.
2. THE SIXTH ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM SIXTH ISSUER CASH MANAGER TO SIXTH ISSUER ACCOUNT
BANK
Subject to CLAUSE 7.3, the Sixth Issuer Account Bank shall comply with
any direction of the Sixth Issuer Cash Manager to effect a payment by
debiting the Sixth Issuer Transaction Account if such direction (a) is
in writing, is given by telephone and confirmed in writing not later
than close of business on the day on which such direction is given, or
is given by the
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internet banking service provided by the Sixth Issuer Account Bank
and/or otherwise (b) complies with the Sixth Issuer Transaction Account
Mandate.
2.2 TIMING OF PAYMENT
Without prejudice to the provisions of CLAUSE 4.2, the Sixth 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 Sixth Issuer Account Bank shall make such payment at the
commencement of business on the following London Business Day for value
that day.
2.3 SIXTH ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Sixth Issuer Account Bank for the operation of the
Sixth Issuer Transaction Account shall be debited to the Sixth 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 Sixth
Issuer Cash Management Agreement, or, following the service of a Sixth
Issuer Note Acceleration Notice (that is not withdrawn), the Sixth
Issuer Deed of Charge, and the Sixth 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 Sixth Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of CLAUSE 2.1, amounts shall only be
withdrawn from the Sixth Issuer Transaction Account to the extent that
such withdrawal does not cause the Sixth Issuer Transaction Account to
become overdrawn.
3. ADDITIONAL SIXTH ISSUER ACCOUNTS
3.1 TERMINATION OF SIXTH ISSUER SWAPS
If any or all of the Sixth Issuer Swap Agreements terminate and the
Sixth Issuer is unable to enter into replacement hedging arrangements,
the Sixth Issuer shall instruct the Sixth Issuer Cash Manager to open,
as necessary, the relevant Additional Sixth Issuer Account at the Sixth
Issuer Account Bank. The Sixth Issuer shall deliver a mandate to the
Sixth Issuer Account Bank relating to such Additional Sixth Issuer
Account in accordance with this Agreement and the Sixth Issuer Deed of
Charge.
3.2 OPERATION OF ADDITIONAL SIXTH ISSUER ACCOUNTS
In the event that an Additional Sixth 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 Sixth Issuer Account Bank shall comply
with any direction of the Sixth Issuer Cash Manager to effect a
payment by debiting the relevant Additional Sixth 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 Sixth Issuer Account Bank, and/or
otherwise (ii) complies with the mandates of such Additional
Sixth Issuer Account;
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(b) the Sixth 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 Sixth 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 Sixth Issuer Cash Manager from time to
time to the Sixth 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 Sixth
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 Sixth Issuer Account Bank at the same branch,
4.00 p.m. (London time)) on any London Business Day, the Sixth
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 Sixth Issuer Account Bank for the operation of
the Additional Sixth Issuer Accounts (if established) shall be
debited to the relevant Additional Sixth Issuer Account on each
Interest Payment Date in accordance with the order of priority
set out in the Sixth Issuer Cash Management Agreement or
following enforcement of the Sixth Issuer Security, the Sixth
Issuer Deed of Charge, and the Sixth 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 Sixth Issuer Account Bank; and
(e) notwithstanding the provisions of CLAUSE 3.2(A), and subject to
the Sixth Issuer Deed of Charge, amounts shall only be withdrawn
from an Additional Sixth Issuer Account to the extent that such
withdrawals do not cause that Additional Sixth Issuer Account to
become overdrawn.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE SIXTH ISSUER CASH MANAGER
(a) The Sixth 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 Sixth Issuer Account (including the
payments due to be made on each Interest Payment Date), submit to the
Sixth Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the
Sixth Issuer Account Bank as to the payments to be made out of the
relevant accounts on such date.
(b) The Sixth 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 Sixth 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 Sixth Issuer Account Mandate.
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4.2 TIMING OF PAYMENT
The Sixth 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 Sixth 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 Sixth Issuer has delivered to the Sixth Issuer Account Bank prior
to the Sixth Issuer Closing Date the Sixth Issuer Transaction Account
Mandate in or substantially in the form set out in SCHEDULE 1 hereto
duly executed and relating to the Sixth Issuer Transaction Account, and
the Sixth Issuer Account Bank hereby confirms to the Security Trustee
that the Sixth Issuer Transaction Account Mandate has been provided to
it, that the Sixth Issuer Transaction Account is open and that the
Sixth Issuer Transaction Account Mandate is operative. The Sixth Issuer
agrees that, if an additional account is opened pursuant to CLAUSE 3.1
(above), it will deliver to the Sixth Issuer Account Bank a duly
executed mandate relating to such Additional Sixth Issuer Account. The
Sixth Issuer Account Bank acknowledges that the Sixth Issuer
Transaction Account Mandate and any other mandates delivered from time
to time pursuant hereto shall be subject to the terms of the Sixth
Issuer Deed of Charge and this Agreement.
5.2 AMENDMENT OR REVOCATION
The Sixth 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 Sixth
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 Sixth Issuer Account Mandate is
revoked, the Sixth Issuer Account Bank may continue to comply with that
amended Sixth 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 Sixth Issuer Note Acceleration Notice has been served or that the
appointment of Halifax plc as Sixth Issuer Cash Manager under the Sixth
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 SIXTH ISSUER ACCOUNT BANK
6.1 RESTRICTION ON SIXTH ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Sixth Issuer Account
Mandate, the Sixth Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Sixth Issuer Account with any other
account of the Sixth Issuer Cash Manager, the Sixth Issuer, the
Mortgages Trustee, Funding 1, the Seller, the Security Trustee or
any other person or any liabilities of the Sixth Issuer Cash
Manager, the Sixth 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 Sixth Issuer Account in or
towards satisfaction of any liabilities of the Sixth Issuer Cash
Manager, the Sixth 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 Sixth 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 Sixth Issuer, or
procure the winding-up or liquidation of the Sixth Issuer or the
making of an administration order in relation to the Sixth Issuer
or the filing of documents with the court in relation to the
Sixth Issuer or the service of a notice of intention to appoint
an administrator in relation to the Sixth Issuer in respect of
any of the liabilities of the Sixth Issuer whatsoever other than
to the extent expressly permitted under the Sixth Issuer Deed of
Charge;
(d) agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Sixth Issuer pursuant to the
Transaction Documents subject always to and in accordance with
the order of priority set out in the Sixth Issuer Deed of Charge;
(e) agrees that it will notify, in accordance with CLAUSE 13, the
Sixth Issuer Cash Manager, the Sixth Issuer and the Security
Trustee if compliance with any instruction would cause any Sixth
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 Sixth Issuer has, pursuant to the Sixth
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 Sixth Issuer Accounts and all of its rights under this
Agreement to the Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Sixth Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Sixth Issuer, in (or substantially
in) the form of notice set out in PART 1 of SCHEDULE 2 hereto, the
Sixth Issuer Account Bank shall sign and duly return to the Sixth
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 Sixth Issuer Account Bank shall provide
each of the Sixth Issuer Cash Manager, the Sixth Issuer and the
Security Trustee with a written statement setting out the amounts
standing to the credit of the Sixth 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
Sixth Issuer Account Bank is hereby authorised by the Sixth Issuer to
provide statements in respect of the Sixth Issuer Accounts, to the
Sixth Issuer Cash Manager and the Security Trustee.
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7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 SIXTH ISSUER ACCOUNT BANK TO COMPLY WITH SIXTH 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 Sixth Issuer
Accounts in accordance with this Agreement, the Sixth Issuer Account
Bank shall be entitled to act as directed by the Sixth 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 Sixth Issuer Cash Manager's instructions in
accordance with the relevant Sixth Issuer Account Mandate, and the
Sixth Issuer Account Bank shall have no liability to the Sixth Issuer
Cash Manager, the Sixth Issuer or the Security Trustee for having acted
on such instructions except in the case of its wilful default, fraud or
negligence.
7.2 SIXTH ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Sixth Issuer Cash
Management Agreement or the Sixth Issuer Deed of Charge, as the case
may be, the Sixth Issuer shall indemnify the Sixth 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
Sixth Issuer Account against any loss, cost, damage, charge or expense
incurred by the Sixth 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 Sixth Issuer Account Bank (if any) for the
operation of the Sixth Issuer Accounts other than as provided in
this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any breach
by the Sixth Issuer Account Bank of its obligations under this
Agreement.
7.3 CONSEQUENCES OF A SIXTH ISSUER INTERCOMPANY LOAN ACCELERATION NOTICE OR
A SIXTH ISSUER NOTE ACCELERATION NOTICE
The Sixth 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 Sixth Issuer Intercompany Loan
Acceleration Notice, or (ii) a Sixth Issuer Note Acceleration Notice,
or (b) that the appointment of Halifax plc as Sixth Issuer Cash Manager
under the Sixth Issuer Cash Management Agreement has been terminated
(but without prejudice to CLAUSE 7.1 above) all right, authority and
power of the Sixth Issuer Cash Manager in respect of the Sixth Issuer
Accounts shall be terminated and be of no further effect and the Sixth
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 Sixth Issuer Account Bank on substantially the same
terms as this Agreement) in relation to the operation of the Sixth
Issuer Accounts.
8. CHANGE OF SECURITY TRUSTEE OR SIXTH 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 Sixth Issuer Deed of Charge, the existing
Security Trustee, the new Security Trustee or the retiring Security
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Trustee, as the case may be, the Sixth Issuer Cash Manager, the Sixth
Issuer and the Sixth 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 SIXTH ISSUER ACCOUNT BANK
If there is any change in the identity of the Sixth Issuer Account
Bank, then the Sixth Issuer Cash Manager, the Sixth Issuer, the
Security Trustee and any other existing Sixth Issuer Account Bank shall
execute such documents and take such actions as the new Sixth Issuer
Account Bank and the outgoing retiring Sixth Issuer Account Bank and
the Security Trustee may require for the purpose of vesting in the new
Sixth Issuer Account Bank the rights and obligations of the outgoing
Sixth Issuer Account Bank and releasing the outgoing Sixth Issuer
Account Bank from its future obligations under this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
The Sixth Issuer Cash Manager or the Sixth Issuer:
(a) shall (with the prior written consent of the Security Trustee)
terminate this Agreement and close the Sixth 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 Sixth 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 Sixth
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 Sixth Issuer Accounts held with it;
or
(ii) the short-term, unsecured, unsubordinated and unguaranteed
debt obligations of the Sixth 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 Sixth 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 Sixth
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
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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 Sixth 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 Sixth Issuer
Account Bank under any applicable liquidation, insolvency,
bankruptcy, composition, reorganisation (other than a
reorganisation where the Sixth 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
Sixth Issuer Account Bank or in relation to the whole or
any substantial part of the undertaking or assets of the
Sixth Issuer Account Bank, or an encumbrancer takes
possession of the whole or any substantial part of the
undertaking or assets of the Sixth 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
Sixth 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 Sixth
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 Sixth 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
Sixth Issuer Cash Manager or the Security Trustee, as the
case may be, has given notice of such failure.
9.2 TERMINATION OPTION
The Sixth Issuer and the Security Trustee, upon a breach by the Sixth
Issuer Account Bank of its obligations under this Agreement, may, by
giving one month's prior written notice to the Sixth Issuer Account
Bank (with a copy to the Security Trustee), terminate the appointment
of the Sixth 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 Sixth Issuer Notes.
The Sixth Issuer Cash Manager and the Sixth 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 Sixth Issuer Account Bank shall
assist the other parties hereto to effect an orderly transition of the
banking arrangements documented hereby and the Sixth Issuer shall
reimburse the Sixth 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 Sixth Issuer, the Sixth Issuer Cash Manager and the Sixth
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 Sixth Issuer Intercompany Loan
Acceleration Notice or a Sixth Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Sixth
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 Sixth Issuer Account Bank. Following the
service of a Sixth Issuer Intercompany Loan Acceleration Notice or a
Sixth 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 Sixth
Issuer Secured Obligations have been irrevocably discharged in full.
9.6 TERMINATION BY SIXTH ISSUER ACCOUNT BANK
The Sixth Issuer Account Bank may terminate this Agreement and cease to
operate the Sixth 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
9
than 10 London Business Days before an Interest Payment Date to
each of the other parties hereto, if the Sixth 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 Sixth Issuer Notes would
be adversely affected thereby.
In either case the Sixth 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 Sixth 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 Sixth Issuer agrees to pay the reasonable costs and any amounts in
respect of Irrecoverable VAT thereon (including reasonable legal costs
and expenses) of the Sixth Issuer Account in connection with the
negotiation of this Agreement and the establishment of the Sixth 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 Sixth 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 Sixth Issuer, to Permanent Financing (No. 6)
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 Sixth 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 Sixth 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 Sixth 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 Sixth Issuer Account opened with the Sixth Issuer
Account Bank or any other bank shall be an interest bearing account.
15. WITHHOLDING
All payments by the Sixth 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 Sixth Issuer Account Bank shall:
11
(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 Sixth 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 Sixth Issuer in full by credit to the relevant
Sixth Issuer Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or
withholding which the Sixth Issuer Account Bank has made pursuant
to this CLAUSE 15 and which is subsequently received by the Sixth
Issuer Account Bank.
16. TAX STATUS
16.1 The Sixth 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 Sixth 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 Sixth 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 Sixth Issuer Account Bank may not assign or transfer any of
its rights or obligations hereunder without the prior written
consent of the Sixth Issuer and the Security Trustee;
(b) the Sixth Issuer may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
Sixth Issuer Account Bank and the Security Trustee; and
(c) the Sixth 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 Sixth 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 Sixth Issuer Cash Manager, the
Sixth Issuer Account Bank or the Sixth 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 SIXTH ISSUER TRANSACTION ACCOUNT MANDATE
IN THE FORM ATTACHED
14
SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT OF ASSIGNMENT
PART 1
NOTICE OF ASSIGNMENT - SIXTH 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: 18th November, 2004
Dear Sirs,
RE: PERMANENT FINANCING (NO. 6) 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 SIXTH 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 Sixth Issuer Transaction Account - account number
00000000 (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 Sixth Issuer Account established pursuant to CLAUSE 3.1 of
the Sixth 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 Sixth
Issuer Bank Account Agreement of even date herewith between ourselves,
yourselves, the Security Trustee and Halifax plc in its capacity as
Sixth Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the Sixth
Issuer Transaction Account and/or any Additional Sixth Issuer Account
established pursuant to CLAUSE 3.1
15
of the Sixth Issuer Bank Account Agreement in accordance with the provisions of
the Sixth Issuer Cash Management Agreement and the Sixth 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 Sixth Issuer Master Definitions
and Construction Schedule referred to in CLAUSE 1 of the Sixth Issuer Deed of
Charge shall have the same meaning in this notice.
Yours faithfully
................................
for and on behalf of
PERMANENT FINANCING (NO. 6) PLC
16
PART 2
ACKNOWLEDGEMENT - SIXTH ISSUER ACCOUNTS
To: Permanent Financing (No. 6) 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: 18th November, 2004
Dear Sir,
RE: PERMANENT FINANCING (NO. 6) PLC
We acknowledge receipt of your letter dated 18th November, 2004, 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 Sixth 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
17
SIGNATORIES
SIXTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 6) PLC )
in the presence of: )
Witness's Signature:...................
Name: ............................
Address: .......................
SIXTH ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of )
HALIFAX PLC in the presence of: )
Witness's Signature:...................
Name: ............................
Address: .......................
SIXTH 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 )
18
