Exhibit 4.13
ISSUER BANK ACCOUNT AGREEMENT
[*], 2006
PERMANENT MASTER ISSUER PLC
(AS ISSUER)
AND
HALIFAX PLC
(AS ISSUER CASH MANAGER)
AND
THE ROYAL BANK OF SCOTLAND
(AS ISSUER ACCOUNT BANK)
AND
THE BANK OF NEW YORK
(AS ISSUER SECURITY TRUSTEE)
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.........................................1
2. The Issuer Transaction Account.........................................1
3. Additional Issuer Accounts.............................................2
4. Payments...............................................................3
5. Mandates and Statements................................................3
6. Acknowledgement by the Issuer Account Bank.............................4
7. Certification, Indemnity and Acceleration Notice.......................5
8. Change of Issuer Security Trustee or Issuer Account Bank...............6
9. Termination............................................................6
10. Further Assurance......................................................9
11. Confidentiality........................................................9
12. Costs.................................................................10
13. Notices...............................................................10
14. Interest..............................................................11
15. Withholding...........................................................11
16. Tax Status............................................................11
17. Entire Agreement......................................................12
18. Variation and Waiver..................................................12
19. Assignment............................................................12
20. The Issuer Security Trustee...........................................12
21. Exclusion of Third Party Rights.......................................12
22. Counterparts..........................................................13
23. Governing Law.........................................................13
24. Submission to Jurisdiction............................................13
SCHEDULES
1. Form of Issuer Transaction Account Mandate............................14
2. Form of Notice of Assignment and Acknowledgement of Assignment........15
Part 1 Notice of Assignment-Issuer Accounts..........................15
Part 2 Acknowledgement-Issuer Accounts...............................17
Signatories..................................................................18
THIS ISSUER BANK ACCOUNT AGREEMENT is made on [*], 2006
BETWEEN:
(1) PERMANENT MASTER ISSUER PLC (registered number [*]), a public limited
company incorporated under the laws of England and Wales, whose
registered office is at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (▇▇▇
ISSUER);
(2) THE GOVERNOR AND COMPANY OF THE ROYAL BANK OF SCOTLAND, a company
established by an Act of Parliament of Scotland in 1695 and having its
head office at ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its capacity as ISSUER
ACCOUNT BANK);
(3) 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
ISSUER CASH MANAGER); and
(4) THE BANK OF NEW YORK, a New York banking corporation, acting through its
offices at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (in its
capacity as ISSUER SECURITY TRUSTEE).
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The master definitions and construction schedule signed by, amongst
others, the parties to this Agreement and dated [*] 2006 (as the same
may be amended, varied or supplemented from time to time with the
consent of the parties thereto) (the MASTER DEFINITIONS AND CONSTRUCTION
SCHEDULE) and the issuer master definitions and construction schedule,
signed for the purposes of identification by ▇▇▇▇▇ & Overy LLP and
Sidley Austin on [*], 2006 (as the same may be amended, varied or
supplemented from time to time) (the 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 Issuer Master Definitions
and Construction Schedule (as so amended, varied or supplemented from
time to time) shall, except where the context otherwise requires and
save where otherwise defined herein, have the same meanings in this
Agreement, and this Agreement shall be construed in accordance with the
interpretation provisions set out in clause [*] of the Master
Definitions and Construction Schedule and in clause [*] of the Issuer
Master Definitions and Construction Schedule.
2. THE ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM ISSUER CASH MANAGER TO ISSUER ACCOUNT BANK
Subject to Clause 7.3, the Issuer Account Bank shall comply with any
direction of the Issuer Cash Manager to effect a payment by debiting the
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 internet
banking service provided by the Issuer Account Bank or otherwise (b)
complies with the Issuer Transaction Account Mandate.
2.2 TIMING OF PAYMENT
The 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 2:30 p.m. (London time) or, in the case
of a payment to another account with the
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Issuer Account Bank at the same branch, 4.00 p.m. (London time) on any
London Business Day, the Issuer Account Bank shall make such payment at
the commencement of business on the following London Business Day for
value that day.
2.3 ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Issuer Account Bank for the operation of the Issuer
Transaction Account shall be debited to the 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 Issuer Cash Management
Agreement, or, following the service of a Note Acceleration Notice (that
is not withdrawn), the Issuer Deed of Charge, and the 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 Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of Clause 2.1, amounts shall only be
withdrawn from the Issuer Transaction Account to the extent that such
withdrawal does not cause the Issuer Transaction Account to become
overdrawn.
3. ADDITIONAL ISSUER ACCOUNTS
3.1 TERMINATION OF ISSUER SWAPS
If any or all of the Issuer Swap Agreements terminate and the Issuer is
unable to enter into replacement hedging arrangements, the Issuer shall
instruct the Issuer Cash Manager to open, as necessary, the relevant
Additional Issuer Account at the Issuer Account Bank. The Issuer shall
deliver a mandate to the Issuer Account Bank relating to such Additional
Issuer Account in accordance with this Agreement and the Issuer Deed of
Charge.
3.2 OPERATION OF ADDITIONAL ISSUER ACCOUNTS
In the event that an Additional 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 Issuer Account Bank shall comply with
any direction of the Issuer Cash Manager to effect a payment by
debiting the relevant Additional Issuer Account if such
direction (i) is in writing or is given by the internet banking
service provided by the Issuer Account Bank, or otherwise (ii)
complies with the mandates of such Additional Issuer Account;
(b) the 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 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 Issuer Cash Manager from time to time
to the Issuer Account Bank and no delay in giving (or the
absence of giving) the written confirmation of any such
direction shall affect the validity of, or time of giving, the
relevant telephone direction;
(c) the 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 2.30 p.m. (London time) or, in the case
of a payment to another account with the Issuer Account Bank at
the same branch, 4.00 p.m.
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(London time) on any London Business Day, the 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 Issuer Account Bank for the operation of the
Additional Issuer Accounts (if established) shall be debited to
the relevant Additional Issuer Account on each Interest Payment
Date in accordance with the order of priority set out in the
Issuer Cash Management Agreement [or following enforcement of
the Issuer Security, the Issuer Deed of Charge, and the Issuer
by its execution hereof irrevocably agrees that this shall be
done] [MEANING UNCLEAR]. The charges shall be payable at the
same rates as are generally applicable to the business customers
of the Issuer Account Bank; and
(e) notwithstanding the provisions of Clause 3.2(a), and subject to
the Issuer Deed of Charge, amounts shall only be withdrawn from
an Additional Issuer Account to the extent that such withdrawals
do not cause that Additional Issuer Account to become overdrawn.
3.3 ISSUER SWAP COLLATERAL ACCOUNT
In the event that any collateral is posted by an Issuer Currency Swap
Provider pursuant to an Issuer Currency Swap Agreement, the Issuer shall
instruct the Issuer Cash Manager to open a bank account with HBOS
Treasury Services plc for the purposes of holding such collateral (any
such account, an ISSUER SWAP COLLATERAL ACCOUNT). An Issuer Swap
Collateral Account shall be opened in respect of each Issuer Currency
Swap Provider that is required to post collateral pursuant to an Issuer
Currency Swap Agreement. In the event that any such Issuer Currency Swap
Account is opened with HBOS Treasury Services plc, the parties to this
Agreement, not including the Issuer Account Bank, will enter into an
agreement on substantially the same terms as this Agreement (with such
amendments as shall be deemed necessary) in respect of such Issuer Swap
Collateral Account.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE ISSUER CASH MANAGER
(a) The Issuer Cash Manager shall, before the date upon which any
payment is due to be made from an Issuer Account (including the
payments due to be made on each Interest Payment Date), submit
to the Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by
the Issuer Account Bank, as to the payments to be made out of
the relevant Issuer Account on such date.
(b) The 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 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 Issuer Account Mandate.
5. MANDATES AND STATEMENTS
5.1 SIGNING AND DELIVERY OF MANDATES
The Issuer has delivered to the Issuer Account Bank prior to the Initial
Closing Date the Issuer Transaction Account Mandate in or substantially
in the form set out in Schedule 1 hereto duly executed and relating to
the Issuer Transaction Account, and the Issuer Account Bank hereby
confirms to the Issuer Security Trustee that the Issuer Transaction
Account Mandate has been provided to it, that the Issuer Transaction
Account is open and that the Issuer Transaction Account Mandate is
operative. The Issuer agrees that, if an Additional Issuer Account is
opened pursuant to
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Clause 3.1 or an Issuer Swap Collateral Account is opened pursuant to
Clause 3.3, it will deliver to the Issuer Account Bank a duly executed
mandate relating to such Additional Issuer Account or, as the case may
be, Issuer Swap Collateral Account. The Issuer Account Bank acknowledges
that the Issuer Transaction Account Mandate and any other mandates
delivered from time to time pursuant hereto shall be subject to the
terms of the Issuer Deed of Charge and this Agreement.
5.2 AMENDMENT OR REVOCATION
The Issuer Account Bank agrees that it shall notify the Issuer Security
Trustee as soon as is reasonably practicable and in accordance with
Clause 13 if it receives any amendment to or revocation of any Issuer
Account Mandate that it holds (other than a change of Authorised
Signatory) and shall require the prior written consent of the Issuer
Security Trustee to any such amendment or revocation (other than a
change of Authorised Signatory), but, unless an Issuer Account Mandate
is revoked, the Issuer Account Bank may continue to comply with that
amended 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 Issuer Security Trustee to the effect that a
Note Acceleration Notice has been served or that the appointment of
Halifax plc as Issuer Cash Manager under the Issuer Cash Management
Agreement has been terminated and shall, thereafter, act solely on the
instructions of the Issuer Security Trustee and in accordance with the
terms thereof as provided in Clause 7.3 of this Agreement.
6. ACKNOWLEDGEMENT BY THE ISSUER ACCOUNT BANK
6.1 RESTRICTION ON ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Issuer Account Mandate,
the Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Issuer Account with any other account
of the Issuer Cash Manager, the Issuer, the Mortgages Trustee,
Funding 2, the Seller, the Issuer Security Trustee or any other
person or any liabilities of the Issuer Cash Manager, the
Issuer, the Mortgages Trustee, Funding 2, the Seller, the Issuer
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 Issuer Account in or
towards satisfaction of any liabilities of the Issuer Cash
Manager, the Issuer, the Mortgages Trustee, Funding 2, the
Seller, the Issuer Security Trustee or any other person owing to
it;
(c) in addition to and without prejudice to its rights and
obligations as an 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 Issuer, or procure the
winding-up or liquidation of the Issuer or the making of an
administration order in relation to the Issuer or the filing of
documents with the court in relation to the Issuer or the
service of a notice of intention to appoint an administrator in
relation to the Issuer in respect of any of the liabilities of
the Issuer whatsoever other than to the extent expressly
permitted under the Issuer Deed of Charge;
(d) agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Issuer pursuant to the
Transaction Documents, subject always to and in accordance with
the order of priority set out in the Issuer Cash Management
Agreement or, as applicable, Issuer Deed of Charge;
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(e) agrees that it will notify, in accordance with Clause 13, the
Issuer Cash Manager, the Issuer and the Issuer Security Trustee
if compliance with any instruction would cause any 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 Issuer has, pursuant to the 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 Issuer
Accounts and all of its rights under this Agreement to the
Issuer Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Issuer Account Bank agrees that promptly upon receipt of a notice of
assignment signed by the Issuer in (or substantially in) the form of
notice set out in Part 1 of Schedule 2 hereto, the Issuer Account Bank
shall sign and duly return to the Issuer, with a copy to the Issuer
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 Issuer Security Trustee in
accordance with Clause 13, the Issuer Account Bank shall provide the
Issuer Cash Manager with a written statement setting out the amounts
standing to the credit of the Issuer Accounts as at the close of
business on the London Business Day immediately preceding the relevant
statement date 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
Issuer Account Bank is hereby authorised by the Issuer to provide
statements in respect of the Issuer Accounts to the Issuer Cash Manager
and the Issuer Security Trustee.
7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 ISSUER ACCOUNT BANK TO COMPLY WITH ISSUER CASH MANAGER'S INSTRUCTIONS
Unless otherwise directed in writing by the Issuer Security Trustee
pursuant to Clause 7.3, in making any transfer or payment from the
Issuer Accounts in accordance with this Agreement, the Issuer Account
Bank shall be entitled to act as directed by the Issuer Cash Manager
pursuant to Clauses 2.1 and 4.1 or pursuant to Clause 3.1, as the case
may be, and to rely as to the amount of any such transfer or payment on
the Issuer Cash Manager's instructions in accordance with the relevant
Issuer Account Mandate, and the Issuer Account Bank shall have no
liability to the Issuer Cash Manager, the Issuer or the Issuer Security
Trustee for having acted on such instructions except in the case of its
wilful default, fraud or negligence.
7.2 ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Issuer Cash
Management Agreement or the Issuer Deed of Charge, as the case may be,
the Issuer shall indemnify the Issuer Account Bank or, pursuant to
Clause 7.3, the Issuer Security Trustee, as the case may be, to the
extent of funds then standing to the credit of the relevant Issuer
Account against any loss, cost, damage, charge or expense incurred by
the Issuer Account Bank or the Issuer 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:
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(a) the charges of the Issuer Account Bank (if any) for the
operation of the Issuer Accounts other than as provided in this
Agreement; and
(b) any loss, cost, damage, charge or expense arising from any
breach by the Issuer Account Bank of its obligations under this
Agreement.
7.3 CONSEQUENCES OF AN INTERCOMPANY LOAN ACCELERATION NOTICE OR A NOTE
ACCELERATION NOTICE
The Issuer Account Bank acknowledges that if it receives notice in
writing from the Issuer Security Trustee to the effect that (a) the
Issuer Security Trustee has served an Intercompany Loan Acceleration
Notice, (b) the Note Trustee has served a Note Acceleration Notice or
(c) the appointment of Halifax plc as Issuer Cash Manager under the
Issuer Cash Management Agreement has been terminated (but without
prejudice to Clause 7.1 above), then all right, authority and power of
the Issuer Cash Manager in respect of the Issuer Accounts shall be
terminated and be of no further effect, and the Issuer Account Bank
agrees that it shall, upon receipt of such notice from the Issuer
Security Trustee, comply with the directions of the Issuer Security
Trustee or any successor cash manager appointed by the Issuer Security
Trustee (subject to such successor cash manager having entered into an
agreement with the Issuer Account Bank on substantially the same terms
as this Agreement) in relation to the operation of the Issuer Accounts.
8. CHANGE OF ISSUER SECURITY TRUSTEE OR ISSUER ACCOUNT BANK
8.1 CHANGE OF ISSUER SECURITY TRUSTEE
In the event that there is any change in the identity of the Issuer
Security Trustee or an additional Issuer Security Trustee is appointed
in accordance with the provisions of the Issuer Deed of Charge, the
existing Issuer Security Trustee, the new Issuer Security Trustee or the
retiring Issuer Security Trustee, as the case may be, the Issuer Cash
Manager, the Issuer and the Issuer Account Bank shall execute such
documents and take such actions as such of the new Issuer Security
Trustee and the retiring Issuer Security Trustee or, as the case may be,
the existing Issuer Security Trustee shall agree are reasonably
necessary for the purpose of vesting in such new Issuer Security Trustee
the rights, benefits and obligations of the Issuer Security Trustee
under this Agreement and under the Issuer Deed of Charge and, if
relevant, releasing the retiring Issuer Security Trustee from its future
obligations hereunder and thereunder.
8.2 CHANGE OF ACCOUNT BANK
If there is any change in the identity of the Issuer Account Bank, then
the Issuer Cash Manager, the Issuer, the Issuer Security Trustee and any
other existing Issuer Account Bank shall execute such documents and take
such actions as the new Issuer Account Bank, the outgoing Issuer Account
Bank and the Issuer Security Trustee may require for the purpose of
vesting in the new Issuer Account Bank the rights and obligations of the
outgoing Issuer Account Bank and releasing the outgoing Issuer Account
Bank from its future obligations under this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
The Issuer Cash Manager or the Issuer:
(a) shall (with the prior written consent of the Issuer Security
Trustee) terminate this Agreement and close the Issuer Accounts
in the event any of the matters specified in paragraphs
9.1(b)(ii) to 9.1(b)(v) below occur; and
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(b) may (with the prior written consent of the Issuer Security
Trustee) terminate this Agreement and close the Issuer Accounts
in the event any of the matters specified in paragraphs
9.1(b)(i) or 9.1(b)(vi) below occur,
in each case, by serving a written notice of termination on the Issuer
Account Bank in the following circumstances:
(i) 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 Issuer Accounts held with it; or
(ii) the short-term, unsecured, unsubordinated and unguaranteed debt
obligations of the 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, 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) the Issuer Account Bank, otherwise than for the purposes of such
amalgamation or reconstruction as is referred to in paragraph
9.1(b)(iv) below, ceases or, through an authorised action of the
board of directors of the 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]750 was
read as a reference to [POUND]10 million), sections 123(1)(b),
(c), (d) and (e) (on the basis that the words "for a sum
exceeding [POUND]10 million" were inserted after the words
"extract registered bond" and "extract registered protest") and
section 123(2) of the Insolvency ▇▇▇ ▇▇▇▇ (as that Section may
be amended) or ceases to be an appropriately authorised
institution under the Financial Services and Markets ▇▇▇ ▇▇▇▇;
or
(iv) an order is made or an effective resolution is passed for the
winding-up of the 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 Issuer Security Trustee (such approval not to
be unreasonably withheld or delayed);
(v) proceedings are initiated against the Issuer Account Bank under
any applicable liquidation, insolvency, bankruptcy, composition,
reorganisation (other than a reorganisation where the 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 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) such proceedings are not, in the reasonable
opinion of the Issuer 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 Issuer Account Bank or in
relation to the whole or any substantial part of the undertaking
or assets of the Issuer Account Bank, or an encumbrancer takes
possession of the whole or any substantial part of the
undertaking or assets of the 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 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 Issuer Account Bank initiates or consents
to judicial
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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) the 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 Issuer Cash Manager or the
Issuer Security Trustee, as the case may be, has given notice of
such failure.
9.2 TERMINATION OPTION
The Issuer and the Issuer Security Trustee, upon a breach by the Issuer
Account Bank of its obligations under this Agreement, may, by giving one
month's prior written notice to the Issuer Account Bank (with a copy to
the Issuer Security Trustee), terminate the appointment of the 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,
[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 Notes.
The Issuer Cash Manager and the 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 Issuer Account Bank shall assist the other parties
hereto to effect an orderly transition of the banking arrangements
documented hereby, and the Issuer shall reimburse the 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 Issuer, the Issuer Cash Manager and the Issuer Account Bank
undertakes and agrees to notify the Issuer Security Trustee in
accordance with Clause 13 promptly upon becoming aware thereof of any
event which would or could entitle the Issuer Security Trustee to serve
a notice of termination pursuant to Clauses 9.2 to 9.4 (inclusive).
9.4 TERMINATION BY ISSUER SECURITY TRUSTEE
In addition, prior to the service of an Intercompany Loan Acceleration
Notice or a Note Acceleration Notice, the Issuer Security Trustee may
terminate this Agreement and close the 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 Issuer
Account Bank. Following the service of an Intercompany Loan Acceleration
Notice or a Note Acceleration Notice, the Issuer 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 Issuer
Secured Obligations have been irrevocably discharged in full.
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9.6 TERMINATION BY ISSUER ACCOUNT BANK
The Issuer Account Bank may terminate this Agreement and cease to
operate the 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 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, [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 Notes would be adversely
affected thereby.
In either case the 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 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
During the continuance of this Agreement or after its termination, each
of the Issuer, the Issuer Account Bank, the Issuer Cash Manager and the
Issuer Security Trustee shall use its best endeavours not to disclose to
any person, firm or company any information relating to the business,
finances or other matters of a confidential nature of any other party to
this Agreement of which it may exclusively by virtue of being party to
the Transaction Documents have become possessed and shall use all
reasonable endeavours to prevent any such disclosure as aforesaid;
PROVIDED, HOWEVER, THAT the provisions of this Clause 11 shall not
apply:
(a) to any information already known to the recipient otherwise than
as a result of entering into any of the Transaction Documents;
(b) to any information subsequently received by the recipient that
it would otherwise be free to disclose;
9
(c) to any information that is or becomes public knowledge otherwise
than as a result of the conduct of the recipient;
(d) to any extent that the recipient is required to disclose the
same pursuant to any law or order of any court of competent
jurisdiction or pursuant to any direction, request or
requirement (whether or not having the force of law) of any
central bank or any governmental or other authority (including,
without limitation, any official bank examiners or regulators);
(e) to the extent that the recipient needs to disclose the same for
determining the existence of, or declaring, a Note Event of
Default, determining the existence of an event described in
Clause 9.1 above, to the extent that the recipient seeks the
protection or enforcement of any of its rights under any of the
Transaction Documents or in connection therewith or for the
purpose of discharging, in such manner as it thinks fit, its
duties under or in connection with such agreements, in each case
to such persons as require to be informed of such information
for such purposes; or
(f) in relation to any information disclosed to professional
advisers of the recipient or (in connection with a prospective
rating of any debt to be issued by the Issuer) to any Rating
Agency or any prospective new cash manager, account bank or
issuer security trustee.
12. COSTS
The Issuer agrees to pay the reasonable costs and any amounts in respect
of Irrecoverable VAT thereon (including reasonable legal costs and
expenses) of the Issuer Account Bank in connection with the negotiation
of this Agreement and the establishment of the Issuer Accounts
respectively and the negotiation and execution of any further documents
and the taking of any further action to be executed or taken pursuant to
Clauses 8, 9 (other than Clauses 9.1(b)(ii), 9.1(b)(iii), 9.1(b)(iv),
9.1(b)(v), 9.1(b)(vi), 9.5 and 9.6(a)) and 10.
13. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post,
by hand or facsimile transmission and shall be deemed to be given (in
the case of facsimile transmission) when despatched, (where delivered by
hand) on the day of delivery if delivered before 5.00 p.m. (London time)
on a London Business Day or on the next London Business Day if delivered
thereafter or on a day which is not a London Business Day or (in the
case of first class post) when it would be received in the ordinary
course of the post and shall be sent:
(a) in the case of the 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 +44
(▇)▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Head of Mortgage
Securitisation and Covered Bonds;
(b) in the case of the Issuer, to PERMANENT MASTER ISSUER PLC, ▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ [(facsimile number +44 (0)20
7398 6325) for the attention of the Directors, with a copy to
HBOS Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Head
of Mortgage Securitisation and Covered Bonds];
(c) in the case of the Issuer Security Trustee, to The Bank of New
York, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Global
Structured Finance-Corporate Trust; and
10
(d) in the case of the Issuer Account Bank, to The Bank of Scotland,
Leeds Business Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇)▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of the
Corporate Banking Channel Support, with copies to: Halifax plc,
▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇/▇/▇/▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇) ▇▇▇ ▇▇▇ ▇▇▇▇) for the attention of the
Head of Mortgage Securitisation; and HBOS Treasury Services plc,
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (0)20
7574 8303) for the attention of Head of Mortgage Securitisation
and Covered Bonds.
14. INTEREST
14.1 The 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 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 Issuer Account or Issuer Swap Collateral Account opened
with the Issuer Account Bank or any other bank shall be an interest
bearing account.
15. WITHHOLDING
All payments by the 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 Issuer Account Bank shall:
(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding;
(c) furnish to the Issuer or the Issuer 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 Issuer in full by credit to the relevant Issuer
Account of an amount equal to the amount of any rebate,
repayment or reimbursement of any deduction or withholding which
the Issuer Account Bank has made pursuant to this Clause 15 and
which is subsequently received by the Issuer Account Bank.
16. TAX STATUS
16.1 The 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,
11
administration or application of, any law or regulation or any practice
or concession of HM Revenue and Customs occurring after the date of this
Agreement.
16.2 The 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 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 Issuer Account Bank may not assign or transfer any of its
rights or obligations hereunder without the prior written
consent of the Issuer and the Issuer Security Trustee;
(b) the Issuer may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
Issuer Account Bank and the Issuer Security Trustee, except that
the Issuer may assign its rights hereunder without such consent
pursuant to the Issuer Deed of Charge ; and
(c) the 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 Issuer and the Issuer
Security Trustee (such consent not to be unreasonably withheld).
20. THE ISSUER SECURITY TRUSTEE
The Issuer 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 Issuer Cash Manager,
the Issuer Account Bank or the Issuer hereunder. Furthermore, any
liberty or power which may be exercised or made in the Issuer 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 Issuer 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) ▇▇▇ ▇▇▇▇ 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.
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22. COUNTERPARTS
This Agreement may be signed (manually or by facsimile) and delivered in
one or more counterparts, 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 and Wales.
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 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-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: [*], 2006
Dear Sirs,
RE: PERMANENT MASTER ISSUER 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 ISSUER SECURITY TRUSTEE), a copy of which is enclosed (the 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 Issuer Transaction Account - account number [*] (sort code
[12-08-83]) and all interest accruing thereon from time to time;
(b) assigned (or to the extent not assignable charged) by way of first fixed
security all of our right, title, benefit and interest present and
future in and to all moneys standing to the credit of any Additional
Issuer Account established pursuant to clause 3.1 of the Issuer Bank
Account Agreement and all interest accruing thereon from time to time;
(c) 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 Issuer Swap
Collateral Account established pursuant to clause 3.3 of the Issuer Bank
Account Agreement and all interest accruing thereon from time to time;
and
15
(d) assigned by way of first fixed security all of our right, title, benefit
and interest present and future in, to and under the Issuer Bank Account
Agreement of even date herewith between ourselves, yourselves, the
Issuer Security Trustee and Halifax plc in its capacity as Issuer Cash
Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Issuer Transaction Account or any Additional Issuer Account established
pursuant to clause 3.1 of the Issuer Bank Account Agreement or any Issuer Swap
Collateral Account established pursuant to Clause 3.3 of the Issuer Bank
Account Agreement in accordance with the provisions of the Issuer Cash
Management Agreement and the Issuer Deed of Charge until such time as you
receive notice in writing from the Issuer Security Trustee in which case you
shall thereafter comply with all directions of the Issuer 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 Issuer
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 Issuer 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 and Wales. Words defined in the Issuer
Master Definitions and Construction Schedule referred to in [clause 1] of the
Issuer Deed of Charge shall have the same meaning in this notice.
Yours faithfully
...................................
for and on behalf of
PERMANENT MASTER ISSUER PLC
16
PART 2
ACKNOWLEDGEMENT-ISSUER ACCOUNTS
To: Permanent Master Issuer PLC
▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
For the attention of the Company Secretary
and to: The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
(the ISSUER SECURITY TRUSTEE)
For the attention of [Global Structured Finance-Corporate Trust]
Date: [*] 2006
Dear Sir,
RE: PERMANENT MASTER ISSUER PLC
We acknowledge receipt of your letter dated [*], 2006, 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 Issuer Accounts
with us, we now agree and confirm to the Issuer 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 Issuer Security Trustee.
This acknowledgement is governed by, and construed in accordance with, the laws
of England and Wales.
Yours faithfully,
...................................
for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
17
SIGNATORIES
ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT MASTER ISSUER PLC in )
the presence of: )
Witness's Signature:................
Name:...........................
Address:...........................
ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of )
HALIFAX PLC in the presence of: )
Witness's Signature:...............
Name:..........................
Address:...................
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:...................
18
ISSUER SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
19