EXHIBIT 4.12
EXECUTION COPY
SEVENTH ISSUER BANK ACCOUNT AGREEMENT
DATED 23rd MARCH, 2005
PERMANENT FINANCING (NO. 7) PLC
AS SEVENTH ISSUER
AND
HALIFAX PLC
AS SEVENTH ISSUER CASH MANAGER
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AS SEVENTH ISSUER ACCOUNT BANK
AND
THE BANK OF NEW YORK
AS SECURITY TRUSTEE
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation............................................1
2. The Seventh Issuer Transaction Account....................................1
3. Additional Seventh Issuer Accounts........................................2
4. Payments..................................................................3
5. Mandates and Statements...................................................4
6. Acknowledgement by the Seventh Issuer Account Bank........................4
7. Certification, Indemnity and Acceleration Notice..........................6
8. Change of Security Trustee or Seventh Issuer Account Bank.................6
9. Termination...............................................................7
10. Further Assurance........................................................10
11. Confidentiality..........................................................10
12. Costs....................................................................10
13. Notices..................................................................11
14. Interest.................................................................11
15. Withholding..............................................................11
16. Tax Status...............................................................12
17. Entire Agreement.........................................................12
18. Variation and Waiver.....................................................12
19. Assignment...............................................................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 Seventh Issuer Transaction Account Mandate.......................14
2. Form of Notice of Assignment and Acknowledgement of Assignment...........15
Part 1 Notice of Assignment - Seventh Issuer Accounts....................15
Part 2 Acknowledgement - Seventh Issuer Accounts.........................17
Signatories...................................................................18
THIS SEVENTH ISSUER BANK ACCOUNT AGREEMENT is made on 23rd March, 2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 7) PLC (registered number 5330776), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(the SEVENTH ISSUER);
(2) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales whose registered office is
at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ acting in its capacity as
SEVENTH 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 Seventh issuer
non-sterling account bank (the SEVENTH ISSUER NON-STERLING ACCOUNT BANK)
and acting in its capacity as Seventh issuer account bank from the branch
located at (in the case of the Seventh Issuer Transaction Account) ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ (the SEVENTH ISSUER STERLING ACCOUNT BANK
and the Seventh Issuer Sterling Account Bank and the Seventh Issuer
Non-Sterling Account Bank, together referred to as, the SEVENTH ISSUER
ACCOUNT BANK); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, acting in its
capacity as SECURITY TRUSTEE.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated 23rd
March, 2005 (as the same may be amended, varied or supplemented, from time
to time with the consent of the parties to this Agreement) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) and the seventh issuer master
definitions and construction schedule, signed for the purposes of
identification by ▇▇▇▇▇ & ▇▇▇▇▇ LLP and Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ on 23rd
March, 2005 (as the same may be amended, varied or supplemented from time
to time) (the SEVENTH 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 Seventh 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 Seventh Issuer Master
Definitions and Construction Schedule.
2. THE SEVENTH ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM SEVENTH ISSUER CASH MANAGER TO SEVENTH ISSUER ACCOUNT
BANK
Subject to CLAUSE 7.3, the Seventh Issuer Account Bank shall comply with
any direction of the Seventh Issuer Cash Manager to effect a payment by
debiting the Seventh 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
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given by the internet banking service provided by the Seventh Issuer
Account Bank and/or otherwise (b) complies with the Seventh Issuer
Transaction Account Mandate.
2.2 TIMING OF PAYMENT
Without prejudice to the provisions of CLAUSE 4.2, the Seventh 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 Seventh
Issuer Account Bank shall make such payment at the commencement of business
on the following London Business Day for value that day.
2.3 SEVENTH ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Seventh Issuer Account Bank for the operation of the
Seventh Issuer Transaction Account shall be debited to the Seventh 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 Seventh Issuer Cash
Management Agreement, or, following the service of a Seventh Issuer Note
Acceleration Notice (that is not withdrawn), the Seventh Issuer Deed of
Charge, and the Seventh 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 Seventh Issuer
Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of CLAUSE 2.1, amounts shall only be
withdrawn from the Seventh Issuer Transaction Account to the extent that
such withdrawal does not cause the Seventh Issuer Transaction Account to
become overdrawn.
3. ADDITIONAL SEVENTH ISSUER ACCOUNTS
3.1 TERMINATION OF SEVENTH ISSUER SWAPS
If any or all of the Seventh Issuer Swap Agreements terminate and the
Seventh Issuer is unable to enter into replacement hedging arrangements,
the Seventh Issuer shall instruct the Seventh Issuer Cash Manager to open,
as necessary, the relevant Additional Seventh Issuer Account at the Seventh
Issuer Account Bank. The Seventh Issuer shall deliver a mandate to the
Seventh Issuer Account Bank relating to such Additional Seventh Issuer
Account in accordance with this Agreement and the Seventh Issuer Deed of
Charge.
3.2 OPERATION OF ADDITIONAL SEVENTH ISSUER ACCOUNTS
In the event that an Additional Seventh 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 Seventh Issuer Account Bank shall comply with
any direction of the Seventh Issuer Cash Manager to effect a payment by
debiting the relevant Additional Seventh 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 Seventh Issuer
Account Bank, and/or otherwise (ii) complies with the mandates of such
Additional Seventh Issuer Account;
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(b) the Seventh 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 Seventh 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 Seventh Issuer Cash Manager from time
to time to the Seventh 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 Seventh 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 Seventh Issuer Account
Bank at the same branch, 4.00 p.m. (London time)) on any London Business
Day, the Seventh 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 Seventh Issuer Account Bank for the operation of the
Additional Seventh Issuer Accounts (if established) shall be debited to the
relevant Additional Seventh Issuer Account on each Interest Payment Date in
accordance with the order of priority set out in the Seventh Issuer Cash
Management Agreement or following enforcement of the Seventh Issuer
Security, the Seventh Issuer Deed of Charge, and the Seventh 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 Seventh Issuer Account Bank; and
(e) notwithstanding the provisions of CLAUSE 3.2(A), and subject to the Seventh
Issuer Deed of Charge, amounts shall only be withdrawn from an Additional
Seventh Issuer Account to the extent that such withdrawals do not cause
that Additional Seventh Issuer Account to become overdrawn.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE SEVENTH ISSUER CASH MANAGER
(a) The Seventh 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 Seventh Issuer Account (including the
payments due to be made on each Interest Payment Date), submit to the
Seventh Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the Seventh
Issuer Account Bank as to the payments to be made out of the relevant
accounts on such date.
(b) The Seventh 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 Seventh 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 Seventh Issuer
Account Mandate.
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4.2 TIMING OF PAYMENT
The Seventh 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 Seventh 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 Seventh Issuer has delivered to the Seventh Issuer Account Bank prior
to the Seventh Issuer Closing Date the Seventh Issuer Transaction Account
Mandate in or substantially in the form set out in SCHEDULE 1 hereto duly
executed and relating to the Seventh Issuer Transaction Account, and the
Seventh Issuer Account Bank hereby confirms to the Security Trustee that
the Seventh Issuer Transaction Account Mandate has been provided to it,
that the Seventh Issuer Transaction Account is open and that the Seventh
Issuer Transaction Account Mandate is operative. The Seventh Issuer agrees
that, if an additional account is opened pursuant to CLAUSE 3.1 (above), it
will deliver to the Seventh Issuer Account Bank a duly executed mandate
relating to such Additional Seventh Issuer Account. The Seventh Issuer
Account Bank acknowledges that the Seventh Issuer Transaction Account
Mandate and any other mandates delivered from time to time pursuant hereto
shall be subject to the terms of the Seventh Issuer Deed of Charge and this
Agreement.
5.2 AMENDMENT OR REVOCATION
The Seventh 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 Seventh 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 Seventh Issuer Account Mandate is revoked, the Seventh Issuer
Account Bank may continue to comply with that amended Seventh 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 Seventh Issuer Note
Acceleration Notice has been served or that the appointment of Halifax plc
as Seventh Issuer Cash Manager under the Seventh 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 SEVENTH ISSUER ACCOUNT BANK
6.1 RESTRICTION ON SEVENTH ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Seventh Issuer Account
Mandate, the Seventh Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine, consolidate or
merge any Seventh Issuer Account with any other account of the Seventh
Issuer Cash Manager, the Seventh Issuer, the Mortgages Trustee, Funding 1,
the Seller, the Security Trustee or any other person or any liabilities of
the Seventh Issuer Cash Manager, the Seventh Issuer, the
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Mortgages Trustee, Funding 1, the Seller, the Security Trustee or any other
person owing to it;
(b) agrees that it may not exercise any lien, or, to the extent permitted by
law, any set-off or transfer any sum standing to the credit of or to be
credited to any Seventh Issuer Account in or towards satisfaction of any
liabilities of the Seventh Issuer Cash Manager, the Seventh 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
Seventh 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
Seventh Issuer, or procure the winding-up or liquidation of the Seventh
Issuer or the making of an administration order in relation to the Seventh
Issuer or the filing of documents with the court in relation to the Seventh
Issuer or the service of a notice of intention to appoint an administrator
in relation to the Seventh Issuer in respect of any of the liabilities of
the Seventh Issuer whatsoever other than to the extent expressly permitted
under the Seventh Issuer Deed of Charge;
(d) agrees that it shall have recourse only to sums paid to or received by (or
on behalf of) the Seventh Issuer pursuant to the Transaction Documents
subject always to and in accordance with the order of priority set out in
the Seventh Issuer Deed of Charge;
(e) agrees that it will notify, in accordance with CLAUSE 13, the Seventh
Issuer Cash Manager, the Seventh Issuer and the Security Trustee if
compliance with any instruction would cause any Seventh 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 Seventh Issuer has, pursuant to the Seventh 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 Seventh Issuer Accounts and all
of its rights under this Agreement to the Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Seventh Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Seventh Issuer, in (or substantially in)
the form of notice set out in PART 1 of SCHEDULE 2 hereto, the Seventh
Issuer Account Bank shall sign and duly return to the Seventh 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 Seventh Issuer Account Bank shall provide the Seventh
Issuer Cash Manager with a written statement setting out the amounts
standing to the credit of the Seventh 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 Seventh Issuer
Account Bank is hereby authorised by the Seventh Issuer to provide
statements in respect of the Seventh Issuer Accounts, to the Seventh Issuer
Cash Manager and the Security Trustee.
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7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 SEVENTH ISSUER ACCOUNT BANK TO COMPLY WITH SEVENTH 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 Seventh Issuer
Accounts in accordance with this Agreement, the Seventh Issuer Account Bank
shall be entitled to act as directed by the Seventh 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 Seventh Issuer Cash Manager's instructions in accordance with the
relevant Seventh Issuer Account Mandate, and the Seventh Issuer Account
Bank shall have no liability to the Seventh Issuer Cash Manager, the
Seventh Issuer or the Security Trustee for having acted on such
instructions except in the case of its wilful default, fraud or negligence.
7.2 SEVENTH ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Seventh Issuer Cash
Management Agreement or the Seventh Issuer Deed of Charge, as the case may
be, the Seventh Issuer shall indemnify the Seventh 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 Seventh Issuer
Account against any loss, cost, damage, charge or expense incurred by the
Seventh 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 Seventh Issuer Account Bank (if any) for the operation
of the Seventh Issuer Accounts other than as provided in this Agreement;
and
(b) any loss, cost, damage, charge or expense arising from any breach by the
Seventh Issuer Account Bank of its obligations under this Agreement.
7.3 CONSEQUENCES OF A SEVENTH ISSUER INTERCOMPANY LOAN ACCELERATION NOTICE OR A
SEVENTH ISSUER NOTE ACCELERATION NOTICE
The Seventh 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 Seventh Issuer Intercompany Loan Acceleration
Notice, or (ii) a Seventh Issuer Note Acceleration Notice, or (b) that the
appointment of Halifax plc as Seventh Issuer Cash Manager under the Seventh
Issuer Cash Management Agreement has been terminated (but without prejudice
to CLAUSE 7.1 above) all right, authority and power of the Seventh Issuer
Cash Manager in respect of the Seventh Issuer Accounts shall be terminated
and be of no further effect and the Seventh 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 Seventh Issuer Account Bank on
substantially the same terms as this Agreement) in relation to the
operation of the Seventh Issuer Accounts.
8. CHANGE OF SECURITY TRUSTEE OR SEVENTH 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 Seventh Issuer Deed of
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Charge, the existing Security Trustee, the new Security Trustee or the
retiring Security Trustee, as the case may be, the Seventh Issuer Cash
Manager, the Seventh Issuer and the Seventh 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 SEVENTH ISSUER ACCOUNT BANK
If there is any change in the identity of the Seventh Issuer Account Bank,
then the Seventh Issuer Cash Manager, the Seventh Issuer, the Security
Trustee and any other existing Seventh Issuer Account Bank shall execute
such documents and take such actions as the new Seventh Issuer Account Bank
and the outgoing retiring Seventh Issuer Account Bank and the Security
Trustee may require for the purpose of vesting in the new Seventh Issuer
Account Bank the rights and obligations of the outgoing Seventh Issuer
Account Bank and releasing the outgoing Seventh Issuer Account Bank from
its future obligations under this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
The Seventh Issuer Cash Manager or the Seventh Issuer:
(a) shall (with the prior written consent of the Security Trustee) terminate
this Agreement and close the Seventh Issuer Accounts, in the event any of
the matters specified in paragraphs (ii) to (v) below occur; and
(b) may (with the prior written consent of the Security Trustee) terminate this
Agreement and close the Seventh Issuer Accounts, in the event any of the
matters specified in paragraphs (i) and (vi) below occur,
in each case, by serving a written notice of termination on the Seventh
Issuer Account Bank in the following circumstances
(i) if a deduction or withholding for or on account of any Tax is
imposed, or it appears likely that such a deduction or withholding
will be imposed, in respect of the interest payable on any of the
Seventh Issuer Accounts held with it; or
(ii) the short-term, unsecured, unsubordinated and unguaranteed debt
obligations of the Seventh 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) if the Seventh 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 Seventh 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[GBP]750 was read as
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a reference to[GBP]10 million), sections 123(1)(b), (c), (d) and (e)
(on the basis that the words "for a sum exceeding[GBP]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
(iv) if an order is made or an effective resolution is passed for the
winding-up of the Seventh Issuer Account Bank except a winding-up for
the purposes of or pursuant to a solvent amalgamation or
reconstruction the terms of which have previously been approved in
writing by the Security Trustee (such approval not to be unreasonably
withheld or delayed); or
(v) if proceedings are initiated against the Seventh Issuer Account Bank
under any applicable liquidation, insolvency, bankruptcy,
composition, reorganisation (other than a reorganisation where the
Seventh 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 Seventh Issuer Account Bank
or in relation to the whole or any substantial part of the
undertaking or assets of the Seventh Issuer Account Bank, or an
encumbrancer takes possession of the whole or any substantial part of
the undertaking or assets of the Seventh 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 Seventh 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
Seventh Issuer Account Bank initiates or consents to judicial
proceedings relating to itself under applicable liquidation,
insolvency, bankruptcy, composition, reorganisation or other similar
laws or makes a conveyance or assignment or assignation for the
benefit of its creditors generally or takes steps with a view to
obtaining a moratorium in respect of any of indebtedness; or
(vi) if the Seventh 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 Seventh Issuer Cash Manager
or the Security Trustee, as the case may be, has given notice of such
failure.
9.2 TERMINATION OPTION
The Seventh Issuer and the Security Trustee, upon a breach by the Seventh
Issuer Account Bank of its obligations under this Agreement, may, by giving
one month's prior written notice to the Seventh Issuer Account Bank (with a
copy to the Security Trustee), terminate the appointment of the Seventh
Issuer Account Bank, provided that:
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(a) such termination shall not be effective until a replacement financial
institution or institutions (in each case (i) with a short-term unsecured,
unsubordinated and unguaranteed debt obligation rating of at least P-1 (in
the case of Moody's) and A-1+ (in the case of S&P) and F1+ (in the case of
Fitch) and (ii) being an authorised institution under the Financial
Services and Markets Act 2000) shall have entered into an agreement in form
and substance similar to this Agreement; and
(b) such termination would not adversely affect the then current ratings of the
Seventh Issuer Notes.
The Seventh Issuer Cash Manager and the Seventh 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 Seventh Issuer Account Bank shall assist
the other parties hereto to effect an orderly transition of the banking
arrangements documented hereby and the Seventh Issuer shall reimburse the
Seventh 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 Seventh Issuer, the Seventh Issuer Cash Manager and the Seventh
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 Seventh Issuer Intercompany Loan
Acceleration Notice or a Seventh Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Seventh 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 Seventh Issuer Account Bank. Following the service of a
Seventh Issuer Intercompany Loan Acceleration Notice or a Seventh 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 Seventh
Issuer Secured Obligations have been irrevocably discharged in full.
9.6 TERMINATION BY SEVENTH ISSUER ACCOUNT BANK
The Seventh Issuer Account Bank may terminate this Agreement and cease to
operate the Seventh 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
9
Business Days before an Interest Payment Date to each of the other parties
hereto, if the Seventh Issuer Account Bank shall have demanded payment of
its due charges or any interest and the same shall have remained unpaid for
a period of one month, provided that if the relevant amounts have been paid
on or before the date six weeks after the date of delivery of such notice
the notice shall have no effect,
Provided that such termination shall not take effect:
(i) until a replacement financial institution or institutions (in
each case, (A) with a short-term unsecured, unsubordinated and
unguaranteed debt obligation rating of at least P-1 (in the case
of Moody's) and A-1+ (in the case of S&P) and F1+ (in the case of
Fitch) and (B) being an authorised institution under the
Financial Services and Markets Act 2000) shall have entered into
an agreement in form and substance similar to this Agreement; and
(ii) if the then current ratings of the Seventh Issuer Notes would be
adversely affected thereby.
In either case the Seventh 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 Seventh 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 Seventh Issuer agrees to pay the reasonable costs and any amounts in
respect of Irrecoverable VAT thereon (including reasonable legal costs and
expenses) of the Seventh Issuer Account in connection with the negotiation
of this Agreement and the establishment of the Seventh Issuer Accounts
respectively and the negotiation and execution of any further documents and
the taking of any further action to be executed or taken pursuant to
CLAUSES 8, 9 (other than CLAUSES 9.1(B)(II), 9.1(B)(III), 9.1(B)(IV),
9.1(B)(V), 9.1(B)(VI), 9.5 and 9.6(A)) and 10.
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13. NOTICES
Any notices to be given pursuant to this Agreement to any of the parties
hereto shall be sufficiently served if sent by prepaid first class post, by
hand or facsimile transmission and shall be deemed to be given (in the case
of facsimile transmission) when despatched, (where delivered by hand) on
the day of delivery if delivered before 5.00 p.m. (London time) on a London
Business Day or on the next London Business Day if delivered thereafter or
on a day which is not a London Business Day or (in the case of first class
post) when it would be received in the ordinary course of the post and
shall be sent:
(a) in the case of the Seventh Issuer Cash Manager, to Halifax plc, ▇▇▇▇▇▇▇
▇▇▇▇ (▇▇/▇/▇/▇▇▇), ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number +44
(0) 113 235 7511) 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
Mortgage Securitisation and Covered Bonds;
(b) in the case of the Seventh Issuer, to Permanent Financing (No. 7) PLC,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44
(▇)▇▇ ▇▇▇▇ ▇▇▇▇) 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 Security Trustee, to The Bank of New York, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, (facsimile number ▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇)
for the attention of Global Structured Finance - Corporate Trust; and
(d) in the case of the Seventh Issuer Account Bank, 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
(▇)▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of Head of Mortgage Securitisation and
Covered Bonds.
14. INTEREST
14.1 The Seventh 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 Seventh 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 Seventh Issuer Account opened with the Seventh Issuer
Account Bank or any other bank shall be an interest bearing account.
15. WITHHOLDING
All payments by the Seventh 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
Seventh Issuer Account Bank shall:
(a) ensure that the deduction or withholding does not exceed the minimum amount
legally required;
11
(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 Seventh 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 Seventh Issuer in full by credit to the relevant Seventh
Issuer Account of an amount equal to the amount of any rebate, repayment or
reimbursement of any deduction or withholding which the Seventh Issuer
Account Bank has made pursuant to this CLAUSE 15 and which is subsequently
received by the Seventh Issuer Account Bank.
16. TAX STATUS
16.1 The Seventh 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 Seventh 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 Seventh 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:
12
(a) the Seventh Issuer Account Bank may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of the
Seventh Issuer and the Security Trustee;
(b) the Seventh Issuer may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Seventh
Issuer Account Bank and the Security Trustee; and
(c) the Seventh 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 Seventh 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 Seventh Issuer Cash Manager, the Seventh Issuer Account
Bank or the Seventh Issuer hereunder. Furthermore, any liberty or power
which may be exercised or made in the Security Trustee's absolute
discretion without any obligation to give reasons therefor, but shall in
any event be exercised in accordance with the provisions of the Funding 1
Deed of Charge.
21. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement, but this does not affect any right or remedy of a third party
which exists or is available apart from that Act.
22. COUNTERPARTS
This Agreement may be signed (manually or by facsimile) and delivered in
one or more counterpart, all of which, taken together, shall constitute one
and the same document.
23. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of England.
24. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
non-exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined by such courts. Each party to this Agreement
hereby irrevocably waives, to the fullest extent it may possibly do so, any
defence or claim that the English courts are an inconvenient forum for the
maintenance or hearing of such action or proceeding.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first before written.
13
SCHEDULE 1
FORM OF SEVENTH 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 - SEVENTH 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: 23rd March, 2005
Dear Sirs,
RE: PERMANENT FINANCING (NO. 7) 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 SEVENTH 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
Seventh Issuer Transaction Account - account number ▇▇▇▇▇▇▇▇ (sort code
12-24-55) and all interest accruing thereon from time to time;
(b) assigned (or to the extent not assignable charged) by way of first fixed
security all of our right, title, benefit and interest present and future
in and to all moneys standing to the credit of any Additional Seventh
Issuer Account established pursuant to CLAUSE 3.1 of the Seventh Issuer
Bank Account Agreement and all interest accruing thereon from time to time;
(c) assigned by way of first fixed security all of our right, title, benefit
and interest present and future in, to and under the Seventh Issuer Bank
Account Agreement of even date herewith between ourselves, yourselves, the
Security Trustee and Halifax plc in its capacity as Seventh Issuer Cash
Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Seventh Issuer Transaction Account and/or any Additional Seventh Issuer Account
established pursuant to CLAUSE
15
3.1 of the Seventh Issuer Bank Account Agreement in accordance with the
provisions of the Seventh Issuer Cash Management Agreement and the Seventh
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 Seventh Issuer Master
Definitions and Construction Schedule referred to in CLAUSE 1 of the Seventh
Issuer Deed of Charge shall have the same meaning in this notice.
Yours faithfully
.............................
for and on behalf of
PERMANENT FINANCING (NO. 7) PLC
16
PART 2
ACKNOWLEDGEMENT - SEVENTH ISSUER ACCOUNTS
To: Permanent Financing (No. 7) 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: 23rd March, 2005
Dear Sir,
RE: PERMANENT FINANCING (NO. 7) PLC
We acknowledge receipt of your letter dated 23rd March, 2005, a copy of which is
attached. Words and expressions defined in that letter have the same meanings
herein.
In consideration of your agreeing to maintain or establish the Seventh 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
SEVENTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 7) PLC )
in the presence of: )
Witness's Signature:....................
Name:...................................
Address:................................
SEVENTH ISSUER CASH MANAGER
SIGNED by )
as attorney for and on behalf of )
HALIFAX PLC in the presence of: )
Witness's Signature:....................
Name:...................................
Address:................................
SEVENTH ISSUER ACCOUNT BANK
SIGNED by )
as attorney for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND in )
the presence of: )
Witness's Signature:....................
Name:...................................
Address:................................
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
18