DRAFT: 03.11.04 Exhibit 4.12
SIXTH ISSUER BANK ACCOUNT AGREEMENT
DATED [{circle}], 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
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 [{circle}], 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 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, 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
[{circle}], 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
[{circle}], 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
6
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 [GBP]750 was read as a reference to [GBP]10 million),
sections 123(1)(b), (c), (d) and (e) (on the basis that the
words "for a
7
sum exceeding [GBP]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
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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 Capital Markets and Securitisation;
(b) in the case of the Sixth Issuer, to Permanent Financing (No. 6) PLC,
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile number +44
(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
Capital Markets and Securitisation;
(c) in the case of the Security Trustee, to The Bank of New York, 00xx
Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, (facsimile number +44 (0)20
7964 6399) 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 Capital Markets and
Securitisation.
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: [{circle}], 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: [{circle}], 2004
Dear Sir,
RE: PERMANENT FINANCING (NO. 6) PLC
We acknowledge receipt of your letter dated [{circle}], 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 )
for and on behalf of )
PERMANENT FINANCING (NO. 6) PLC )
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 )
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