EXHIBIT 4.13
FOURTH ISSUER BANK ACCOUNT AGREEMENT
DATED [12TH MARCH], 2004
PERMANENT FINANCING (NO. 4) PLC
AS FOURTH ISSUER
AND
HALIFAX PLC
AS FOURTH ISSUER CASH MANAGER
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AS FOURTH ISSUER ACCOUNT BANK
AND
THE BANK OF NEW YORK
AS SECURITY TRUSTEE
▇▇▇▇▇ & ▇▇▇▇▇
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation..........................................1
2. The Fourth Issuer Transaction Account...................................1
3. Additional Fourth Issuer Accounts.......................................2
4. Payments................................................................3
5. Mandates and Statements.................................................4
6. Acknowledgement by the Fourth Issuer Account Bank.......................4
7. Certification, Indemnity and Acceleration Notice........................6
8. Change of Security Trustee or Fourth Issuer Account Bank................7
9. Termination.............................................................7
10. Further Assurance......................................................10
11. Confidentiality........................................................10
12. Costs..................................................................10
13. Notices................................................................10
14. Interest...............................................................11
15. Withholding............................................................11
16. Tax Status.............................................................12
17. Entire Agreement.......................................................12
18. Variation and Waiver...................................................12
19. Assignment.............................................................12
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 Fourth Issuer Transaction Account Mandate......................14
2. Form of Notice of Assignment and Acknowledgement.......................15
Part 1 Notice of Charge - Fourth Issuer Accounts.......................15
Part 2 Acknowledgement - Fourth Issuer Accounts........................17
Signatories..................................................................18
THIS FOURTH ISSUER BANK ACCOUNT AGREEMENT is made on [12th March], 2004
BETWEEN:
(1) PERMANENT FINANCING (NO. 4) PLC (registered number 4988201), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the FOURTH ISSUER);
(2) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales whose registered office
is at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in its capacity as
Fourth 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
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, acting in its capacity as fourth issuer
non-sterling account bank (the FOURTH ISSUER NON-STERLING ACCOUNT BANK)
and acting in its capacity as fourth issuer account bank from the branch
located at (in the case of the Fourth Issuer Transaction Account) ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ (the FOURTH ISSUER STERLING ACCOUNT BANK
and the Fourth Issuer Sterling Account Bank and the Fourth Issuer Non-
Sterling Account Bank, together referred to as, the FOURTH ISSUER ACCOUNT
BANK); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, 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 12th
March, 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 fourth issuer
master definitions and construction schedule, signed for the purposes of
identification by ▇▇▇▇▇ & ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ on
{circle}, 2004 (as the same may be amended, varied or supplemented from
time to time) (the FOURTH 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 Fourth 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 Fourth Issuer Master
Definitions and Construction Schedule.
2. THE FOURTH ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM FOURTH ISSUER CASH MANAGER TO FOURTH ISSUER ACCOUNT
BANK
Subject to CLAUSE 7.3, the Fourth Issuer Account Bank shall comply with
any direction of the Fourth Issuer Cash Manager to effect a payment by
debiting the Fourth 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
1
internet banking service provided by the Fourth Issuer Account Bank
and/or otherwise (b) complies with the Fourth Issuer Transaction Account
Mandate.
2.2 TIMING OF PAYMENT
Without prejudice to the provisions of CLAUSE 4.2, the Fourth 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 Fourth Issuer Account Bank shall make such payment at the
commencement of business on the following London Business Day for value
that day.
2.3 FOURTH ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Fourth Issuer Account Bank for the operation of the
Fourth Issuer Transaction Account shall be debited to the Fourth 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 Fourth Issuer Cash
Management Agreement, or, following the service of a Fourth Issuer Note
Acceleration Notice (that is not withdrawn), the Fourth Issuer Deed of
Charge, and the Fourth 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 Fourth
Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of CLAUSE 2.1, amounts shall only be
withdrawn from the Fourth Issuer Transaction Account to the extent that
such withdrawal does not cause the Fourth Issuer Transaction Account to
become overdrawn.
3. ADDITIONAL FOURTH ISSUER ACCOUNTS
3.1 TERMINATION OF FOURTH ISSUER SWAPS
If any or all of the Fourth Issuer Swap Agreements terminate and the
Fourth Issuer is unable to enter into replacement hedging arrangements,
the Fourth Issuer shall instruct the Fourth Issuer Cash Manager to open,
as necessary, the relevant Additional Fourth Issuer Account at the Fourth
Issuer Account Bank. The Fourth Issuer shall deliver a mandate to the
Fourth Issuer Account Bank relating to such Additional Fourth Issuer
Account in accordance with this Agreement and the Fourth Issuer Deed of
Charge.
3.2 OPERATION OF ADDITIONAL FOURTH ISSUER ACCOUNTS
In the event that an Additional Fourth Issuer Account is created pursuant
to CLAUSE 2.5, the relevant account shall be operated in accordance with
the following provisions:
(a) subject to CLAUSE 7.3, the Fourth Issuer Account Bank shall comply
with any direction of the Fourth Issuer Cash Manager to effect a
payment by debiting the relevant Additional Fourth 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 Fourth Issuer Account Bank, and/or
otherwise (ii) complies with the mandates of such Additional
Fourth Issuer Account;
2
(b) the Fourth 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 Fourth 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 Fourth Issuer Cash Manager from time to
time to the Fourth 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 Fourth
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 Fourth Issuer Account Bank at the same branch, 4.00 p.m.
(London time)) on any London Business Day, the Fourth 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 Fourth Issuer Account Bank for the operation of
the Additional Fourth Issuer Accounts (if established) shall be
debited to the relevant Additional Fourth Issuer Account on each
Interest Payment Date in accordance with the order of priority set
out in the Fourth Issuer Cash Management Agreement or following
enforcement of the Fourth Issuer Security, the Fourth Issuer Deed
of Charge, and the Fourth 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 Fourth Issuer Account Bank; and
(e) notwithstanding the provisions of CLAUSE 3.2(a), and subject to
the Fourth Issuer Deed of Charge, amounts shall only be withdrawn
from an Additional Fourth Issuer Account to the extent that such
withdrawals do not cause that Additional Fourth Issuer Account to
become overdrawn.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE FOURTH ISSUER CASH MANAGER
(a) The Fourth 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 Fourth Issuer
Account (including the payments due to be made on each Interest
Payment Date), submit to the Fourth Issuer Account Bank
irrevocable written instructions, or instructions by way of the
internet banking service provided by the Fourth Issuer Account
Bank as to the payments to be made out of the relevant accounts on
such date.
(b) The Fourth 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 Fourth 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 Fourth Issuer Account
Mandate.
3
4.2 TIMING OF PAYMENT
The Fourth 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 Fourth 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 Fourth Issuer has delivered to the Fourth Issuer Account Bank prior
to the Fourth Issuer Closing Date the Fourth Issuer Transaction Account
Mandate in or substantially in the form set out in SCHEDULE 1 hereto duly
executed and relating to the Fourth Issuer Transaction Account, and the
Fourth Issuer Account Bank hereby confirms to the Security Trustee that
the Fourth Issuer Transaction Account Mandate has been provided to it,
that the Fourth Issuer Transaction Account is open and that the Fourth
Issuer Transaction Account Mandate is operative. The Fourth Issuer agrees
that, if an additional account is opened pursuant to CLAUSE 3.1 (above),
it will deliver to the Fourth Issuer Account Bank a duly executed mandate
relating to such Additional Fourth Issuer Account. The Fourth Issuer
Account Bank acknowledges that the Fourth Issuer Transaction Account
Mandate and any other mandates delivered from time to time pursuant
hereto shall be subject to the terms of the Fourth Issuer Deed of Charge
and this Agreement.
5.2 AMENDMENT OR REVOCATION
The Fourth 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 Fourth
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 Fourth Issuer Account Mandate is
revoked, the Fourth Issuer Account Bank may continue to comply with that
amended Fourth 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
Fourth Issuer Note Acceleration Notice has been served or that the
appointment of Halifax plc as Fourth Issuer Cash Manager under the Fourth
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 FOURTH ISSUER ACCOUNT BANK
6.1 RESTRICTION ON FOURTH ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Fourth Issuer Account
Mandate, the Fourth Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Fourth Issuer Account with any other
account of the Fourth Issuer Cash Manager, the Fourth Issuer, the
Mortgages Trustee, Funding 1, the Seller, the Security Trustee or
any other person or any liabilities of the Fourth Issuer Cash
Manager, the Fourth
4
Issuer, the Mortgages Trustee, Funding 1, the Seller, the Security
Trustee or any other person owing to it;
(b) agrees that it may not exercise any lien, or, to the extent
permitted by law, any set-off or transfer any sum standing to the
credit of or to be credited to any Fourth Issuer Account in or
towards satisfaction of any liabilities of the Fourth Issuer Cash
Manager, the Fourth 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 Fourth 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 Fourth Issuer, or procure the
winding-up or liquidation of the Fourth Issuer or the making of an
administration order in relation to the Fourth Issuer or the
filing of documents with the court in relation to the Fourth
Issuer or the service of a notice of intention to appoint an
administrator in relation to the Fourth Issuer in respect of any
of the liabilities of the Fourth Issuer whatsoever other than to
the extent expressly permitted under the Fourth Issuer Deed of
Charge;
(d) agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Fourth Issuer pursuant to the
Transaction Documents subject always to and in accordance with the
order of priority set out in the Fourth Issuer Deed of Charge;
(e) agrees that it will notify, in accordance with CLAUSE 13, the
Fourth Issuer Cash Manager, the Fourth Issuer and the Security
Trustee if compliance with any instruction would cause any Fourth
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 Fourth Issuer has, pursuant to the Fourth
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
Fourth Issuer Accounts and all of its rights under this Agreement
to the Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Fourth Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Fourth Issuer, in (or substantially
in) the form of notice set out in PART 1 of SCHEDULE 2 hereto, the Fourth
Issuer Account Bank shall sign and duly return to the Fourth 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 Fourth Issuer Account Bank shall provide each of the
Fourth Issuer Cash Manager, the Fourth Issuer and the Security Trustee
with a written statement setting out the amounts standing to the credit
of the Fourth 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 Fourth Issuer Account Bank is
hereby authorised by the Fourth
5
Issuer to provide statements in respect of the Fourth Issuer Accounts, to
the Fourth Issuer Cash Manager and the Security Trustee.
7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 FOURTH ISSUER ACCOUNT BANK TO COMPLY WITH FOURTH 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 Fourth Issuer
Accounts in accordance with this Agreement, the Fourth Issuer Account
Bank shall be entitled to act as directed by the Fourth 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 Fourth Issuer Cash Manager's instructions in
accordance with the relevant Fourth Issuer Account Mandate, and the
Fourth Issuer Account Bank shall have no liability to the Fourth Issuer
Cash Manager, the Fourth Issuer or the Security Trustee for having acted
on such instructions except in the case of its wilful default, fraud or
negligence.
7.2 FOURTH ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Fourth Issuer Cash
Management Agreement or the Fourth Issuer Deed of Charge as the case may
be, the Fourth Issuer shall indemnify the Fourth 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 Fourth Issuer
Account against any loss, cost, damage, charge or expense incurred by the
Fourth 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 Fourth Issuer Account Bank (if any) for the
operation of the Fourth Issuer Accounts other than as provided in
this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any breach
by the Fourth Issuer Account Bank of its obligations under this
Agreement.
7.3 CONSEQUENCES OF A FOURTH ISSUER INTERCOMPANY LOAN ACCELERATION NOTICE OR
A FOURTH ISSUER NOTE ACCELERATION NOTICE
The Fourth 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 Fourth Issuer Intercompany Loan Acceleration
Notice, or (ii) a Fourth Issuer Note Acceleration Notice, or (b) that the
appointment of Halifax plc as Fourth Issuer Cash Manager under the Fourth
Issuer Cash Management Agreement has been terminated (but without
prejudice to CLAUSE 7.1 above) all right, authority and power of the
Fourth Issuer Cash Manager in respect of the Fourth Issuer Accounts shall
be terminated and be of no further effect and the Fourth 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 Fourth
Issuer Account Bank on substantially the same terms as this Agreement) in
relation to the operation of the Fourth Issuer Accounts.
6
8. CHANGE OF SECURITY TRUSTEE OR FOURTH 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 Fourth Issuer Deed of Charge, the existing Security
Trustee, the new Security Trustee or the retiring Security Trustee, as
the case may be, the Fourth Issuer Cash Manager, the Fourth Issuer and
the Fourth 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 FOURTH ISSUER ACCOUNT BANK
If there is any change in the identity of the Fourth Issuer Account Bank,
then the Fourth Issuer Cash Manager, the Fourth Issuer, the Security
Trustee and any other existing Fourth Issuer Account Bank shall execute
such documents and take such actions as the new Fourth Issuer Account
Bank and the outgoing retiring Fourth Issuer Account Bank and the
Security Trustee may require for the purpose of vesting in the new Fourth
Issuer Account Bank the rights and obligations of the outgoing Fourth
Issuer Account Bank and releasing the outgoing Fourth Issuer Account Bank
from its future obligations under this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
Subject always to obtaining the prior written consent of the Security
Trustee, the Fourth Issuer Cash Manager or the Fourth Issuer shall
terminate this Agreement and shall (in the case of any of the paragraphs
(b) to (e) below) or may (in the case of paragraphs (a) and (f) below)
terminate this Agreement and close the Fourth Issuer Accounts by serving
a written notice of termination on the Fourth Issuer Account Bank in any
of the following circumstances:
(a) if a deduction or withholding for or on account of any Tax is
imposed, or it appears likely that such a deduction or withholding
will be imposed, in respect of the interest payable on any of the
Fourth Issuer Accounts held with it; or
(b) the short-term, unsecured, unsubordinated and unguaranteed debt
obligations of the Fourth Issuer Account Bank cease to have a
rating of at least P-1 from ▇▇▇▇▇'▇, A-1+ from S&P or F1+ from
Fitch, as the case may be; or
(c) if the Fourth 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 Fourth 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
▇▇▇ ▇▇▇▇ (on the basis that the reference in such section to
{pound-sterling}750 was read as a reference to {pound-sterling}10
million), sections 123(1)(b), (c), (d) and (e) (on the basis that
the words "for a sum exceeding {pound-sterling}10 million" were
inserted after the words "extract registered bond" and "extract
registered protest" and section 123(2) of the Insolvency ▇▇▇ ▇▇▇▇
(as that Section may be amended) or ceases to be an authorised
institution under the Financial Services and Markets ▇▇▇ ▇▇▇▇; or
7
(d) if an order is made or an effective resolution is passed for the
winding-up of the Fourth 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
(e) if proceedings are initiated against the Fourth Issuer Account
Bank under any applicable liquidation, insolvency, bankruptcy,
composition, reorganisation (other than a reorganisation where the
Fourth 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 Fourth Issuer Account Bank or in relation to the whole or
any substantial part of the undertaking or assets of the Fourth
Issuer Account Bank, or an encumbrancer takes possession of the
whole or any substantial part of the undertaking or assets of the
Fourth 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 Fourth 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 Fourth Issuer
Account Bank initiates or consents to judicial proceedings
relating to itself under applicable liquidation, insolvency,
bankruptcy, composition, reorganisation or other similar laws or
makes a conveyance or assignment or assignation for the benefit of
its creditors generally or takes steps with a view to obtaining a
moratorium in respect of any of indebtedness; or
(f) if the Fourth 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 Fourth Issuer
Cash Manager or the Security Trustee, as the case may be, has
given notice of such failure.
9.2 TERMINATION OPTION
The Fourth Issuer and the Security Trustee, upon a breach by the Fourth
Issuer Account Bank of its obligations under this Agreement, may, by
giving one month's prior written notice to the Fourth Issuer Account Bank
(with a copy to the Security Trustee), terminate the appointment of the
Fourth Issuer Account Bank, provided that:
(a) such termination shall not be effective until a replacement
financial institution or institutions (in each case (i) with a
short-term unsecured, unsubordinated and unguaranteed debt
obligation rating of at least P-1 (in the case of Moody's) and A-
1+ (in the case of S&P) and F1+ (in the case of Fitch) and (ii)
being an authorised institution under the Financial Services and
Markets Act 2000) shall have entered into an agreement in form and
substance similar to this Agreement; and
8
(b) such termination would not adversely affect the then current
ratings of the Fourth Issuer Notes.
The Fourth Issuer Cash Manager and the Fourth 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 Fourth Issuer Account Bank shall assist
the other parties hereto to effect an orderly transition of the banking
arrangements documented hereby and the Fourth Issuer shall reimburse the
Fourth 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 Fourth Issuer, the Fourth Issuer Cash Manager and the Fourth
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 Fourth Issuer Intercompany Loan
Acceleration Notice or a Fourth Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Fourth Issuer
Accounts by serving a notice of termination if any of the events
specified in CLAUSE 9.1(A) to (F) (inclusive) of this Agreement occurs in
relation to the Fourth Issuer Account Bank. Following the service of a
Fourth Issuer Intercompany Loan Acceleration Notice or a Fourth 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 Fourth
Issuer Secured Obligations have been irrevocably discharged in full.
9.6 TERMINATION BY FOURTH ISSUER ACCOUNT BANK
The Fourth Issuer Account Bank may terminate this Agreement and cease to
operate the Fourth Issuer Accounts at any time:
(a) on giving not less than six months' prior written notice thereof
ending on any London Business Day which does not fall on either an
Interest Payment Date or less than 10 London Business Days before
an Interest Payment Date to each of the other parties hereto
without assigning any reason therefor; and
(b) on giving not less than three months' prior written notice thereof
ending on any London Business Day which does not fall on either an
Interest Payment Date or less than 10 London Business Days before
an Interest Payment Date to each of the other parties hereto, if
the Fourth 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,
9
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 Fourth Issuer Notes would be
adversely affected thereby.
In either case the Fourth 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 Fourth 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 Fourth Issuer agrees to pay the reasonable costs and any amounts in
respect of Irrecoverable VAT thereon (including reasonable legal costs
and expenses) of the Fourth Issuer Account in connection with the
negotiation of this Agreement and the establishment of the Fourth 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), 9.1(C), 9.1(D),
9.1(E), 9.1(F), 9.5 and 9.6(A)) and 10.
13. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or facsimile transmission and shall be deemed to be given (in the
case of facsimile transmission) when despatched, (where delivered by
hand) on the day of delivery if delivered before 5.00 p.m. (London time)
on a London Business Day or on the next London Business Day if delivered
thereafter or on a day
10
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 Fourth Issuer Cash Manager, to Halifax plc,
▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇/▇/▇/▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of the
Head of Mortgage Securitisation with a copy to HBOS Treasury
Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of Head of Capital
Markets and Securitisation;
(b) in the case of the Fourth Issuer, to Permanent Financing (No. 3)
PLC, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of the Directors
with a copy to HBOS Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the
attention of Head of Capital Markets and Securitisation;
(c) in the case of the Security Trustee, to The Bank of New York, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, (facsimile number +44
(▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of Global Structured Finance -
Corporate Trust; and
(d) in the case of the Fourth Issuer Account Bank, the Bank of
Scotland plc, Leeds Business Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇) for the attention
of the Associate Director with copies to: Bank of Scotland plc,
c/o Halifax plc, Bradford Business Centre, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇ for the
attention of the Associate Director; Halifax plc, ▇▇▇▇▇▇▇ ▇▇▇▇
(▇▇/▇/▇/▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of the Head of Mortgage
Securitisation; and HBOS Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for
the attention of Head of Capital Markets and Securitisation.
14. INTEREST
14.1 The Fourth Issuer Account Bank shall pay, on the first day of each month
(or if such day is not a London Business Day on the next succeeding
London Business Day) in respect of the preceding month, interest on any
cleared credit balances on the Fourth 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 Fourth Issuer Account opened with the Fourth Issuer
Account Bank or any other bank shall be an interest bearing account.
15. WITHHOLDING
All payments by the Fourth 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 Fourth Issuer Account Bank shall:
(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount of
the deduction or withholding;
11
(c) furnish to the Fourth 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 Fourth Issuer in full by credit to the relevant
Fourth Issuer Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or withholding
which the Fourth Issuer Account Bank has made pursuant to this
CLAUSE 15 and which is subsequently received by the Fourth Issuer
Account Bank.
16. TAX STATUS
16.1 The Fourth Issuer Account Bank hereby represents and warrants that it is
a bank for the purposes of section 349 of the Income and Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇, 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 Fourth 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 Fourth Issuer Account Bank in CLAUSE 16.1 above.
17. ENTIRE AGREEMENT
This Agreement and the schedules together constitute the entire agreement
and understanding between the parties in relation to the subject matter
hereof and cancel and replace any other agreement or understanding in
relation thereto.
18. VARIATION AND WAIVER
No variation, waiver or novation of this Agreement or any provision(s) of
this Agreement shall be effective unless it is in writing and executed by
(or by some person duly authorised by) each of the parties hereto. No
single or partial exercise of, or failure or delay in exercising, any
right under this Agreement shall constitute a waiver or preclude any
other or further exercise of that or any other right.
19. ASSIGNMENT
Subject as provided in or contemplated by CLAUSES 6.1(F) and 8.2:
(a) the Fourth Issuer Account Bank may not assign or transfer any of
its rights or obligations hereunder without the prior written
consent of the Fourth Issuer and the Security Trustee;
12
(b) the Fourth Issuer may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
Fourth Issuer Account Bank and the Security Trustee; and
(c) the Fourth 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 Fourth 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 Fourth Issuer Cash Manager, the Fourth
Issuer Account Bank or the Fourth 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 Fourth Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a Fourth 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.
13
SCHEDULE 1
FORM OF FOURTH ISSUER TRANSACTION ACCOUNT MANDATE
IN THE FORM ATTACHED
14
SCHEDULE 1
FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT OF ASSIGNMENT
PART 1
NOTICE OF CHARGE - FOURTH ISSUER ACCOUNTS
To: The Governor and Company of the Bank of Scotland
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇
For the attention of: Company Secretary
With a copy to: The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
For the attention of: Global Structured Finance - Corporate Trust
Date: [12th March], 2004
Dear Sirs,
RE: PERMANENT FINANCING (NO. 3) 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 FOURTH 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
Fourth Issuer Transaction Account - account number ▇▇▇▇▇▇▇▇ (sort code
14-24-55) 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 Fourth
Issuer Account established pursuant to CLAUSE 3.1 of the Fourth Issuer
Bank Account Agreement and all interest accruing thereon from time to
time;
(c) assigned all of our right, title, benefit and interest present and future
in, to and under the Fourth Issuer Bank Account Agreement of even date
herewith between ourselves, yourselves, the Security Trustee and Halifax
plc in its capacity as Fourth Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Fourth Issuer Transaction Account and/or any Additional Fourth Issuer Account
established pursuant to CLAUSE 3.1 of the Fourth Issuer Bank Account Agreement
in accordance with the provisions of the Fourth Issuer
15
Cash Management Agreement and the Fourth 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 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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 Fourth Issuer
Master Definitions and Construction Schedule referred to in CLAUSE 1 of the
Fourth Issuer Deed of Charge shall have the same meaning in this notice.
Yours faithfully
................................
for and on behalf of
PERMANENT FINANCING (NO. 4) PLC
16
PART 2
ACKNOWLEDGEMENT - FOURTH ISSUER ACCOUNTS
To: Permanent Financing (No. 4) PLC
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of the Company Secretary
and to: The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
(the SECURITY TRUSTEE)
For the attention of Global Structured Finance - Corporate Trust
Date: {circle}, 2004
Dear Sir,
RE: PERMANENT FINANCING (NO. 4) 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 Fourth 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
FOURTH ISSUER
SIGNED by )
for and on behalf of )
PERMANENT FINANCING (NO. 4) PLC )
FOURTH ISSUER CASH MANAGER
SIGNED by )
for and on behalf of )
HALIFAX PLC )
FOURTH ISSUER ACCOUNT BANK
SIGNED by )
for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND )
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
18