DRAFT (3): 31ST MAY, 2005
EXHIBIT 4.12
(GRAPHIC OMMITED)
ALLEN & OVERY LLP
EIGHTH ISSUER BANK ACCOUNT
AGREEMENT
PERMANENT FINANCING (NO. 8) PLC
as Eighth Issuer
and
HALIFAX plc
as Eighth Issuer Cash Manager
and
THE GOVERNMENT AND COMPANY OF THE BANK OF SCOTLAND
as Eighth Issuer Account Bank
and
THE BANK OF NEW YORK
as Security Trustee
[22nd] June, 2005
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation................................ 1
2. The Eighth Issuer Transaction Account......................... 1
3. Additional Eighth Issuer Accounts............................. 2
4. Payments...................................................... 3
5. Mandates and Statements....................................... 3
6. Acknowledgement by the Eighth Issuer Account Bank............. 4
7. Certification, Indemnity and Acceleration Notice.............. 5
8. Change of Security Trustee or Eighth Issuer Account Bank...... 6
9. Termination................................................... 7
10. Further Assurance............................................. 10
11. Confidentiality............................................... 10
12. Costs......................................................... 10
13. Notices....................................................... 10
14. Interest...................................................... 11
15. Withholding................................................... 11
16. Tax Status.................................................... 11
17. Entire Agreement.............................................. 12
18. Variation and Waiver.......................................... 12
19. Assignment.................................................... 12
20. The Security Trustee.......................................... 12
21. Exclusion of Third Party Rights............................... 12
22. Counterparts.................................................. 13
23. Governing Law................................................. 13
24. Submission to Jurisdiction.................................... 13
SCHEDULE
1. Form of Eighth Issuer Transaction Account Mandate............. 14
2. Form of Notice of Assignment and Acknowledgement of Assignment 15
Part 1 Notice of Assignment - Eighth Issuer Accounts................. 15
Part 2 Acknowledgement - Eighth Issuer Accounts...................... 17
Signatories.............................................................. 18
THIS EIGHTH ISSUER BANK ACCOUNT AGREEMENT is made on [22nd] June, 2005
BETWEEN:
(1) PERMANENT FINANCING (NO. 8) PLC (registered number5434519), a public
limited company incorporated under the laws of England and Wales, whose
registered office is at 35 Great St. Helen's, London EC3A 6AP (the EIGHTH
ISSUER);
(2) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Trinity Road, Halifax, West Yorkshire HX1 2RG acting in its
capacity as EIGHTH 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
The Mound, Edinburgh EH1 1YZ, acting in its capacity as Eighth Issuer
non-sterling account bank (the EIGHTH ISSUER NON-STERLING ACCOUNT BANK)
and acting in its capacity as Eighth issuer account bank from the branch
located at (in the case of the Eighth Issuer Transaction Account) 116
Wellington Street, Leeds LS1 4LT (the EIGHTH ISSUER STERLING ACCOUNT BANK
and the Eighth Issuer Sterling Account Bank and the Eighth Issuer Non-
Sterling Account Bank, together referred to as, the EIGHTH ISSUER ACCOUNT
BANK); and
(4) THE BANK OF NEW YORK, a New York banking corporation whose London branch
address is at 48th Floor, One Canada Square, London E14 5AL, 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 [22nd]
June, 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 eighth issuer master
definitions and construction schedule, signed for the purposes of
identification by Allen & Overy LLP and Sidley Austin Brown & Wood
on[22nd] June, 2005 (as the same may be amended, varied or supplemented
from time to time) (the EIGHTH 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 Eighth 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 Agreementand
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 Eighth Issuer Master Definitions and Construction
Schedule.
2. THE EIGHTH ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM EIGHTH ISSUER CASH MANAGER TO EIGHTH ISSUER ACCOUNT
BANK
Subject to CLAUSE 7.3, the Eighth Issuer Account Bank shall comply with
any direction of the Eighth Issuer Cash Manager to effect a payment by
debiting the Eighth 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 Eighth Issuer
Account Bank and/or otherwise (b) complies with the Eighth Issuer
Transaction Account Mandate.
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2.2 TIMING OF PAYMENT
The Eighth 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 3.20 p.m. (London time) on
any London Business Day, the Eighth Issuer Account Bank shall make such
payment at the commencement of business on the following London Business
Day for value that day.
2.3 EIGHTH ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Eighth Issuer Account Bank for the operation of the
Eighth Issuer Transaction Account shall be debited to the Eighth 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 Eighth Issuer Cash
Management Agreement, or, following the service of an Eighth Issuer Note
Acceleration Notice (that is not withdrawn), the Eighth Issuer Deed of
Charge, and the Eighth 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 Eighth
Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of CLAUSE 2.1, amounts shall only be
withdrawn from the Eighth Issuer Transaction Account to the extent that
such withdrawal does not cause the Eighth Issuer Transaction Account to
become overdrawn.
3. ADDITIONAL EIGHTH ISSUER ACCOUNTS
3.1 TERMINATION OF EIGHTH ISSUER SWAPS
If any or all of the Eighth Issuer Swap Agreements terminate and the
Eighth Issuer is unable to enter into replacement hedging arrangements,
the Eighth Issuer shall instruct the Eighth Issuer Cash Manager to open,
as necessary, the relevant Additional Eighth Issuer Account at the Eighth
Issuer Account Bank. The Eighth Issuer shall deliver a mandate to the
Eighth Issuer Account Bank relating to such Additional Eighth Issuer
Account in accordance with this Agreement and the Eighth Issuer Deed of
Charge.
3.2 OPERATION OF ADDITIONAL EIGHTH ISSUER ACCOUNTS
In the event that an Additional Eighth 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 Eighth Issuer Account Bank shall comply
with any direction of the Eighth Issuer Cash Manager to effect a
payment by debiting the relevant Additional Eighth 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 Eighth Issuer Account Bank, and/or
otherwise (ii) complies with the mandates of such Additional Eighth
Issuer Account;
(b) the Eighth 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 Eighth Issuer
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Account, from time to time and in respect of which the person
giving the direction quotes a code reference notified in writing by
the Eighth Issuer Cash Manager from time to time to the Eighth
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 Eighth 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 3.20 p.m. (London time) or, in the case of a payment to
another account with the Eighth Issuer Account Bank at the same
branch, 4.00 p.m. (London time)) on any London Business Day, the
Eighth 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 Eighth Issuer Account Bank for the operation of
the Additional Eighth Issuer Accounts (if established) shall be
debited to the relevant Additional Eighth Issuer Account on each
Interest Payment Date in accordance with the order of priority set
out in the Eighth Issuer Cash Management Agreement or following
enforcement of the Eighth Issuer Security, the Eighth Issuer Deed
of Charge, and the Eighth 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 Eighth Issuer Account Bank; and
(e) notwithstanding the provisions of CLAUSE 3.2(A), and subject to the
Eighth Issuer Deed of Charge, amounts shall only be withdrawn from
an Additional Eighth Issuer Account to the extent that such
withdrawals do not cause that Additional Eighth Issuer Account to
become overdrawn.
4. PAYMENTS
4.1 INSTRUCTIONS FROM THE EIGHTH ISSUER CASH MANAGER
(a) The Eighth Issuer Cash Manager shall before the date upon which any
payment is due to be made from an Eighth Issuer Account (including the
payments due to be made on each Interest Payment Date), submit to the
Eighth Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the
Eighth Issuer Account Bank as to the payments to be made out of the
relevant accounts on such date.
(b) The Eighth 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 Eighth 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 Eighth
Issuer Account Mandate.
5. MANDATES AND STATEMENTS
5.1 SIGNING AND DELIVERY OF MANDATES
The Eighth Issuer has delivered to the Eighth Issuer Account Bank prior
to the Eighth Issuer Closing Date the Eighth Issuer Transaction Account
Mandate in or substantially in the form set out in SCHEDULE 1 hereto duly
executed and relating to the Eighth Issuer Transaction Account, and the
Eighth Issuer Account Bank hereby confirms to the Security Trustee that
the Eighth Issuer
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Transaction Account Mandate has been provided to it, that the Eighth
Issuer Transaction Account is open and that the Eighth Issuer Transaction
Account Mandate is operative. The Eighth Issuer agrees that, if an
additional account is opened pursuant to CLAUSE 3.1 (above), it will
deliver to the Eighth Issuer Account Bank a duly executed mandate
relating to such Additional Eighth Issuer Account. The Eighth Issuer
Account Bank acknowledges that the Eighth Issuer Transaction Account
Mandate and any other mandates delivered from time to time pursuant
hereto shall be subject to the terms of the Eighth Issuer Deed of Charge
and this Agreement.
5.2 AMENDMENT OR REVOCATION
The Eighth 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 Eighth
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 an Eighth Issuer Account Mandate is
revoked, the Eighth Issuer Account Bank may continue to comply with that
amended Eighth 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
an Eighth Issuer Note Acceleration Notice has been served or that the
appointment of Halifax plc as Eighth Issuer Cash Manager under the Eighth
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 EIGHTH ISSUER ACCOUNT BANK
6.1 RESTRICTION ON EIGHTH ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Eighth Issuer Account
Mandate, the Eighth Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Eighth Issuer Account with any other
account of the Eighth Issuer Cash Manager, the Eighth Issuer, the
Mortgages Trustee, Funding 1, the Seller, the Security Trustee or
any other person or any liabilities of the Eighth Issuer Cash
Manager, the Eighth Issuer, the Mortgages Trustee, Funding 1, the
Seller, the Security Trustee or any other person owing to it;
(b) agrees that it may not exercise any lien, or, to the extent
permitted by law, any set-off or transfer any sum standing to the
credit of or to be credited to any Eighth Issuer Account in or
towards satisfaction of any liabilities of the Eighth Issuer Cash
Manager, the Eighth 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 an Eighth 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 Eighth Issuer, or procure the
winding-up or liquidation of the Eighth Issuer or the making of an
administration order in relation to the Eighth Issuer or the filing
of documents with the court in relation to the Eighth Issuer or the
service of a notice of intention to appoint an administrator in
relation to the Eighth Issuer in respect of any of the liabilities
of the Eighth Issuer whatsoever other than to the extent expressly
permitted under the Eighth Issuer Deed of Charge;
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(d) agrees that it shall have recourse only to sums paid to or received
by (or on behalf of) the Eighth Issuer pursuant to the Transaction
Documents subject always to and in accordance with the order of
priority set out in the Eighth Issuer Deed of Charge;
(e) agrees that it will notify, in accordance with CLAUSE 13, the
Eighth Issuer Cash Manager, the Eighth Issuer and the Security
Trustee if compliance with any instruction would cause any Eighth
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 Eighth Issuer has, pursuant to the Eighth
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 Eighth
Issuer Accounts and all of its rights under this Agreement to the
Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Eighth Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Eighth Issuer, in (or substantially
in) the form of notice set out in PART 1 of SCHEDULE 2 hereto, the Eighth
Issuer Account Bank shall sign and duly return to the Eighth 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 Eighth Issuer Account Bank shall provide the Eighth
Issuer Cash Manager with a written statement setting out the amounts
standing to the credit of the Eighth 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
Eighth Issuer Account Bank is hereby authorised by the Eighth Issuer to
provide statements in respect of the Eighth Issuer Accounts, to the
Eighth Issuer Cash Manager and the Security Trustee.
7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 EIGHTH ISSUER ACCOUNT BANK TO COMPLY WITH EIGHTH 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 Eighth Issuer
Accounts in accordance with this Agreement, the Eighth Issuer Account
Bank shall be entitled to act as directed by the Eighth 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 Eighth Issuer Cash Manager's instructions in accordance
with the relevant Eighth Issuer Account Mandate, and the Eighth Issuer
Account Bank shall have no liability to the Eighth Issuer Cash Manager,
the Eighth Issuer or the Security Trustee for having acted on such
instructions except in the case of its wilful default, fraud or
negligence.
7.2 EIGHTH ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Eighth Issuer Cash
Management Agreement or the Eighth Issuer Deed of Charge, as the case may
be, the Eighth Issuer shall indemnify the Eighth Issuer Account Bank or,
pursuant to CLAUSE 7.3, the Security Trustee, as the case may be, to the
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extent of funds then standing to the credit of the relevant Eighth Issuer
Account against any loss, cost, damage, charge or expense incurred by the
Eighth 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 Eighth Issuer Account Bank (if any) for the
operation of the Eighth Issuer Accounts other than as provided in
this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any breach
by the Eighth Issuer Account Bank of its obligations under this
Agreement.
7.3 CONSEQUENCES OF AN EIGHTH ISSUER INTERCOMPANY LOAN ACCELERATION NOTICE OR
AN EIGHTH ISSUER NOTE ACCELERATION NOTICE
The Eighth 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) an Eighth Issuer Intercompany Loan Acceleration
Notice, or (ii) an Eighth Issuer Note Acceleration Notice, or (b) that
the appointment of Halifax plc as Eighth Issuer Cash Manager under the
Eighth Issuer Cash Management Agreement has been terminated (but without
prejudice to CLAUSE 7.1 above) all right, authority and power of the
Eighth Issuer Cash Manager in respect of the Eighth Issuer Accounts shall
be terminated and be of no further effect and the Eighth 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 Eighth
Issuer Account Bank on substantially the same terms as this Agreement) in
relation to the operation of the Eighth Issuer Accounts.
8. CHANGE OF SECURITY TRUSTEE OR EIGHTH 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 Eighth Issuer Deed of Charge, the existing Security
Trustee, the new Security Trustee or the retiring Security Trustee, as
the case may be, the Eighth Issuer Cash Manager, the Eighth Issuer and
the Eighth 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 EIGHTH ISSUER ACCOUNT BANK
If there is any change in the identity of the Eighth Issuer Account Bank,
then the Eighth Issuer Cash Manager, the Eighth Issuer, the Security
Trustee and any other existing Eighth Issuer Account Bank shall execute
such documents and take such actions as the new Eighth Issuer Account
Bank and the outgoing retiring Eighth Issuer Account Bank and the
Security Trustee may require for the purpose of vesting in the new Eighth
Issuer Account Bank the rights and obligations of the outgoing Eighth
Issuer Account Bank and releasing the outgoing Eighth Issuer Account Bank
from its future obligations under this Agreement.
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9. TERMINATION
9.1 TERMINATION EVENTS
The Eighth Issuer Cash Manager or the Eighth Issuer:
(a) shall (with the prior written consent of the Security Trustee)
terminate this Agreement and close the Eighth 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 Eighth 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
Eighth 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 Eighth Issuer Accounts held with it; or
(ii)the short-term, unsecured, unsubordinated and unguaranteed debt
obligations of the Eighth Issuer Account Bank cease to have a
rating of at least P-1 from Moody's, 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 Eighth 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 Eighth
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 Act 1986 (on the basis
that the reference in such section to [GBP]750 was read as a
reference to [GBP]10 million), sections 123(1)(b), (c), (d)
and (e) (on the basis that the words "for a sum exceeding
[GBP]10 million" were inserted after the words "extract
registered bond" and "extract registered protest" and
section 123(2) of the Insolvency Act 1986 (as that Section
may be amended) or ceases to be an authorised institution
under the Financial Services and Markets Act 2000; or
(iv)if an order is made or an effective resolution is passed for
the winding-up of the Eighth 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 Eighth Issuer Account
Bank under any applicable liquidation, insolvency, bankruptcy,
composition, reorganisation (other than a reorganisation where
the Eighth 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
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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 Eighth Issuer
Account Bank or in relation to the whole or any substantial
part of the undertaking or assets of the Eighth Issuer Account
Bank, or an encumbrancer takes possession of the whole or any
substantial part of the undertaking or assets of the Eighth
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 Eighth 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
Eighth 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 Eighth 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 Eighth
Issuer Cash Manager or the Security Trustee, as the case may
be, has given notice of such failure.
9.2 TERMINATION OPTION
The Eighth Issuer and the Security Trustee, upon a breach by the Eighth
Issuer Account Bank of its obligations under this Agreement, may, by
giving one month's prior written notice to the Eighth Issuer Account Bank
(with a copy to the Security Trustee), terminate the appointment of the
Eighth Issuer Account Bank, provided that:
(a) such termination shall not be effective until a replacement
financial institution or institutions (in each case (i) with a
short-term unsecured, unsubordinated and unguaranteed debt
obligation rating of at least P-1 (in the case of Moody's) and A-1+
(in the case of S&P) and F1+ (in the case of Fitch) and (ii) being
an authorised institution under the Financial Services and Markets
Act 2000) shall have entered into an agreement in form and
substance similar to this Agreement; and
(b) such termination would not adversely affect the then current
ratings of the Eighth Issuer Notes.
The Eighth Issuer Cash Manager and the Eighth 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 Eighth Issuer Account Bank shall assist
the other parties hereto to effect an orderly transition of the banking
arrangements documented hereby and the Eighth Issuer shall reimburse the
Eighth 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 Eighth Issuer, the Eighth Issuer Cash Manager and the Eighth
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).
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9.4 TERMINATION BY SECURITY TRUSTEE
In addition, prior to the service of an Eighth Issuer Intercompany Loan
Acceleration Notice or an Eighth Issuer Note Acceleration Notice, the
Security Trustee may terminate this Agreement and close the Eighth 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 Eighth Issuer Account Bank. Following the
service of an Eighth Issuer Intercompany Loan Acceleration Notice or an
Eighth 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 Eighth
Issuer Secured Obligations have been irrevocably discharged in full.
9.6 TERMINATION BY EIGHTH ISSUER ACCOUNT BANK
The Eighth Issuer Account Bank may terminate this Agreement and cease to
operate the Eighth 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 Eighth 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 Eighth Issuer Notes would be
adversely affected thereby.
In either case the Eighth 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 Eighth Issuer Account
Bank shall assist the other parties hereto to effect an orderly
transition of the banking arrangements documented hereby.
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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 Eighth Issuer agrees to pay the reasonable costs and any amounts in
respect of Irrecoverable VAT thereon (including reasonable legal costs
and expenses) of the Eighth Issuer Account in connection with the
negotiation of this Agreement and the establishment of the Eighth 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 Eighth Issuer Cash Manager, to Halifax plc,
Trinity Road (LP/3/3/SEC), Halifax, West Yorkshire HX1 2RG
(facsimile number +44 (0) 113 235 7511) for the attention of the
Head of Mortgage Securitisation with a copy to HBOS Treasury
Services plc, 33 Old Broad Street, London EC2N 1HZ (facsimile
number +44 (0)20 7574 8303) for the attention of Head of Mortgage
Securitisation and Covered Bonds;
(b) in the case of the Eighth Issuer, to Permanent Financing (No. 8)
PLC, 35 Great St. Helen's, London EC3A 6AP (facsimile number +44
(0)20 7398 6325) for the attention of the Directors with a copy to
HBOS Treasury Services plc, 33 Old Broad Street, London EC2N 1HZ
(facsimile number +44 (0)20 7574 8303) 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, 48th
Floor, One Canada Square, London E14 5AL, (facsimile number +44
(0)20 7964 6399) for the attention of Global Structured Finance -
Corporate Trust; and
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(d) in the case of the Eighth Issuer Account Bank, the Bank of
Scotland, Leeds Business Centre, 116 Wellington Street, Leeds, LS1
4LT (facsimile number +44 (0) 113 215 5899) for the attention of
the Corporate Banking Channel Support with copies to: Halifax plc,
Trinity Road (LP/3/3/SEC), Halifax, West Yorkshire HX1 2RG
(facsimile number +44 (0) 113 235 7511) for the attention of the
Head of Mortgage Securitisation; and HBOS Treasury Services plc, 33
Old Broad Street, London EC2N 1HZ (facsimile number +44 (0)20 7574
8303) for the attention of Head of Mortgage Securitisation and
Covered Bonds.
14. INTEREST
14.1 The Eighth 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 Eighth 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 Eighth Issuer Account opened with the Eighth Issuer
Account Bank or any other bank shall be an interest bearing account.
15. WITHHOLDING
All payments by the Eighth 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 Eighth 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 Eighth 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 Eighth Issuer in full by credit to the relevant
Eighth Issuer Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or withholding
which the Eighth Issuer Account Bank has made pursuant to this
CLAUSE 15 and which is subsequently received by the Eighth Issuer
Account Bank.
16. TAX STATUS
16.1 The Eighth Issuer Account Bank hereby represents and warrants that it is
a bank for the purposes of section 349 of the Income and Corporation
Taxes Act 1988, 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
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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 Eighth 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 Eighth 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 Eighth Issuer Account Bank may not assign or transfer any of
its rights or obligations hereunder without the prior written
consent of the Eighth Issuer and the Security Trustee;
(b) the Eighth Issuer may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the
Eighth Issuer Account Bank and the Security Trustee; and
(c) the Eighth 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 Eighth 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 Eighth Issuer Cash Manager, the Eighth
Issuer Account Bank or the Eighth 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) Act 1999 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 counterpart, all of which, taken together, shall constitute
one and the same document.
23. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
24. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the non-
exclusive jurisdiction of the English courts in any action or proceeding
arising out of or relating to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be
heard and determined by such courts. Each party to this Agreement hereby
irrevocably waives, to the fullest extent it may possibly do so, any
defence or claim that the English courts are an inconvenient forum for
the maintenance or hearing of such action or proceeding.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first before written.
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SCHEDULE 1
FORM OF EIGHTH ISSUER TRANSACTION ACCOUNT MANDATE
IN THE FORM ATTACHED
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SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT OF ASSIGNMENT
PART 1
NOTICE OF ASSIGNMENT - EIGHTH ISSUER ACCOUNTS
To: The Governor and Company of the Bank of Scotland
116 Wellington Street
Leeds
LS1 4LT
For the attention of: Company Secretary
With a copy to: The Bank of New York
48th Floor
One Canada Square
London
E14 5AL
For the attention of: Global Structured Finance - Corporate Trust
Date:[22nd] June, 2005
Dear Sirs,
RE: PERMANENT FINANCING (NO. 8) 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 EIGHTH 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 Eighth 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 Eighth Issuer Account established pursuant to CLAUSE
3.1 of the Eighth 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 Eighth
Issuer Bank Account Agreement of even date herewith between
ourselves, yourselves, the Security Trustee and Halifax plc in its
capacity as Eighth Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Eighth Issuer Transaction Account and/or any Additional Eighth Issuer Account
established pursuant to CLAUSE 3.1 of the Eighth Issuer Bank Account Agreement
in accordance with the provisions of the Eighth Issuer Cash Management
15
Agreement and the Eighth 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 48th Floor, One Canada Square, London E14 5AL
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 Eighth Issuer Master Definitions
and Construction Schedule referred to in CLAUSE 1 of the Eighth Issuer Deed of
Charge shall have the same meaning in this notice.
Yours faithfully
.....................................
for and on behalf of
PERMANENT FINANCING (NO. 8) PLC
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PART 2
ACKNOWLEDGEMENT - EIGHTH ISSUER ACCOUNTS
To: Permanent Financing (No. 8) PLC
35 Great St. Helen's
London EC3A 6AP
For the attention of the Company Secretary
and to: The Bank of New York
48th Floor
One Canada Square
London
E14 5AL
(the SECURITY TRUSTEE)
For the attention of Global Structured Finance -
Corporate Trust
Date:[22nd] June, 2005
Dear Sir,
RE: PERMANENT FINANCING (NO. 8) PLC
We acknowledge receipt of your letter dated [22nd] June, 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 Eighth 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
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SIGNATORIES
EIGHTH ISSUER
SIGNED by )
as attorney for and on behalf of )
PERMANENT FINANCING (NO. 8) PLC )
in the presence of: )
Witness's Signature:............
Name: ..........................
Address: .......................
EIGHTH ISSUER CASH MANAGER
SIGNED by ...................... )
as attorney for and on behalf of )
HALIFAX PLC in the presence of:. )
Witness's Signature:............
Name: ..........................
Address: .......................
EIGHTH ISSUER ACCOUNT BANK
SIGNED by ...................... )
as attorney for and on behalf of )
THE GOVERNOR AND COMPANY OF )
THE BANK OF SCOTLAND in the )
presence of: )
Witness's Signature.............
Name: ..........................
Address: .......................
SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK )
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