EXHIBIT 4.12
EXECUTION COPY
DATED 23 SEPTEMBER 2002
GRANITE FINANCE FUNDING LIMITED
as Funding
NORTHERN ROCK PLC
as Cash Manager
LLOYDS TSB BANK PLC
as Account Bank
- AND -
THE BANK OF NEW YORK
as Security Trustee
--------------------------------------------------------------------------------
FUNDING (02-2)
BANK ACCOUNT AGREEMENT
--------------------------------------------------------------------------------
SIDLEY XXXXXX XXXXX & Xxxx
0 Xxxxxxxxxxxx Xxxxxx
XXXXXX XX0X 0XX
TELEPHONE 000 0000 0000
FACSIMILE 020 7626 7937
UK: 546745
CONTENTS
Clause Page No.
1. Definitions and Interpretation.......................................1
2. The Funding (Current Issuer) GIC Account.............................1
3. Payments.............................................................2
4. Mandate and Statements...............................................3
5. Acknowledgement by the Account Bank..................................3
6. Certification, Indemnity and Enforcement Notice......................5
7. Change of Security Trustee or Account Bank...........................6
8. Termination..........................................................6
9. Further Assurance....................................................9
10. Confidentiality......................................................9
11. Costs................................................................9
12. Notices.............................................................10
13. Interest............................................................10
14. Withholding.........................................................11
15. Tax Status..........................................................11
16. Entire Agreement....................................................11
17. Variation and Waiver................................................12
18. Assignment..........................................................12
19. The Security Trustee................................................12
20. New Intercompany Loan Agreements....................................12
21. Exclusion of Third Party Rights.....................................12
22. Counterparts........................................................13
23. Governing Law and Jurisdiction; Process Agents; Appropriate Forum...13
SCHEDULE 1................................................................14
Form of Mandate.......................................................14
THIS AGREEMENT is made on 23 September 2002
BETWEEN:
(1) GRANITE FINANCE FUNDING LIMITED (registered number 79308), a private
limited company incorporated under the laws of Jersey, but acting out of
its office established in England (registered overseas company number
FC022999 and branch number BR005916) at 0xx Xxxxx, 00 Xxx Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX as Funding;
(2) NORTHERN ROCK PLC (registered number 03273685), a public limited company
incorporated under the laws of England and Wales whose registered office is
at Northern Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX, in its
capacity as Cash Manager to Funding pursuant to the Cash Management
Agreement;
(3) THE BANK OF NEW YORK, whose principal office is at Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX in its capacity as Security Trustee; and
(4) LLOYDS TSB BANK PLC, a company incorporated in England and Wales under
registered number 2065, acting through its office at Treasury Division, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX in its capacity as Account Bank under this
Agreement.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The provisions of:
(a) the Master Definitions Schedule as amended and restated by (and
appearing in Appendix 1 to) the Master Definitions Schedule Third
Amendment Deed made on 23 September 2002 between, among others, the
Seller, Funding and the Mortgages Trustee, and
(b) the Issuer Master Definitions Schedule signed for the purposes of
identification by Sidley Xxxxxx Xxxxx & Xxxx and Xxxxx & Xxxxx on 23
September 2002,
(as the same have been and may be amended, varied or supplemented from time
to time with the consent of the parties hereto) are expressly and
specifically incorporated into and shall apply to this Agreement. The
Issuer Master Definitions Schedule specified above shall prevail to the
extent that it conflicts with the Master Definitions Schedule.
2. THE FUNDING (CURRENT ISSUER) GIC ACCOUNT
2.1 INSTRUCTIONS FROM THE CASH MANAGER: Subject to Clause 2.4 (No Negative
Balance) and Clause 6.3 (Consequences of an Intercompany Loan Enforcement
Notice), the Account Bank shall, as directed by the Cash Manager, be
entitled to effect a payment by debiting the Funding (Current Issuer) GIC
Account provided that such direction from the Cash Manager complies with
the Funding (Current Issuer) GIC Account Mandate (the "Mandate").
The Account Bank shall be entitled to rely on any direction given in
writing which, in its opinion (acting reasonably and in good faith),
purports to be given by any Authorised Signatory referred to in the Mandate
from time to time and in respect of which the person giving the direction
quotes a code reference notified in writing by the Cash Manager from time
to time to the Account Bank.
2.2 TIMING OF PAYMENT: Without prejudice to the provisions of Clause 3.2
(Confirmation of Payment Instructions), the Account Bank agrees that if
directed pursuant to Clause 2.1 (Instructions from the Cash Manager) to
make any payment, on any date other than a Payment Date (to which the
provisions of Clause 3.1 (Instructions from the Cash Manager) shall apply)
then, subject to Clauses 2.4 (No Negative Balance) and 6.3 (Consequences of
an Intercompany Loan Enforcement Notice) 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 Account Bank shall make such payment at the commencement of business on
the following London Business Day for value that day.
2.3 ACCOUNT BANK CHARGES: The charges of the Account Bank for the operation of
the Funding (Current Issuer) GIC Account shall be debited to the Funding
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 Funding Deed of
Charge, and Funding 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 Account Bank provided
that, subject to Clause 8.6 (Termination by Account Bank), if there are
insufficient funds standing to the credit of the Funding Transaction
Account to pay such charges the Account Bank shall not be relieved of its
obligations in respect of the Funding (Current Issuer) GIC Account.
2.4 NO NEGATIVE BALANCE: Notwithstanding the provisions of Clause 2.1
(Instructions from the Cash Manager) and Clause 2.3 (Account Bank Charges),
amounts shall only be withdrawn from the Funding (Current Issuer) GIC
Account to the extent that such withdrawal does not cause the Funding
(Current Issuer) GIC Account to have a negative balance.
3. PAYMENTS
3.1 INSTRUCTIONS FROM THE CASH MANAGER:
(a) The Cash Manager shall, no later than 11.00 a.m. (London time) on the
second London Business Day prior to the Payment Date upon which any
payment is due to be made from the Funding (Current Issuer) GIC
Account, submit to the Account Bank irrevocable instructions in
compliance with the Mandate as to the payments to be made out of such
account on such date.
(b) The Account Bank shall comply with such instructions and shall effect
the payments specified therein not later than the time specified for
payment thereof (provided that the 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
2
control) on the relevant date if the instructions comply with the
Mandate.
3.2 CONFIRMATION OF PAYMENT INSTRUCTIONS: The Account Bank agrees that it will,
not later than 12:00 p.m. (London time) on the second London Business Day
prior to the date upon which any payment is due to be made from the Funding
(Current Issuer) GIC Account, confirm to the Cash Manager (provided that
such is the case) that it has received irrevocable instructions to effect
payment and specifying the amount of the payment to be made and that,
subject to receipt of funds, it will effect such payment.
4. MANDATE AND STATEMENTS
4.1 SIGNING AND DELIVERY OF THE MANDATE: Funding hereby confirms that it has
delivered to the Account Bank, prior to the Closing Date, the Mandate in
the form set out in Schedule 1 hereto duly executed and relating to the
Funding (Current Issuer) GIC Account and the Account Bank hereby confirms
to the Security Trustee that the Mandate has been provided to it, that the
Funding (Current Issuer) GIC Account is open and that the Mandate is
operative.
4.2 AMENDMENT OR REVOCATION: The Account Bank agrees that it shall notify the
Security Trustee as soon as is reasonably practicable, if it receives any
amendment or revocation of the Mandate relating to the Funding (Current
Issuer) GIC Account (other than a change of Authorised Signatory) and shall
require the consent of the Security Trustee to any such amendment or
revocation (other than a change of Authorised Signatory) provided, however,
that unless the Mandate is revoked, the Account Bank may continue to comply
with the amended Mandate unless it receives notice in writing from the
Security Trustee to the effect that an Intercompany Loan Enforcement Notice
has been served or that the appointment of Northern Rock plc as Cash
Manager under the Cash Management Agreement has been terminated.
4.3 STATEMENTS: The Account Bank shall submit monthly written statements to the
Cash Manager, Funding and, upon request, the Security Trustee setting out
the amounts standing to the credit of the Funding (Current Issuer) GIC
Account at the close of business on the London Business Day immediately
preceding the statement date within three London Business Days of the
statement date.
5. ACKNOWLEDGEMENT BY THE ACCOUNT BANK
5.1 RESTRICTION ON RIGHTS: Notwithstanding anything to the contrary in the
Mandate:
(a) the Account Bank hereby waives any right it has or may hereafter
acquire to combine, consolidate or merge the Funding (Current Issuer)
GIC Account with any other account of the Cash Manager, Funding, the
Security Trustee or any other person or with any liabilities of the
Cash Manager, Funding, the Security Trustee or any other person;
(b) the Account Bank hereby 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 the Funding (Current
Issuer) GIC Account in or towards satisfaction of
3
any liabilities to it of the Cash Manager, Funding, the Security
Trustee or any other person;
(c) each of the parties hereto hereby agrees that it shall not institute
against Funding any winding-up, administration, insolvency or similar
proceedings in any jurisdiction for so long as any sum is outstanding
under any Intercompany Loan Agreement of any Issuer or for two years
plus one day since the last day on which any such sum was outstanding
provided that the Security Trustee may prove or lodge a claim in the
event of a liquidation initiated by any other person;
(d) each of the parties hereto hereby agrees that only the Security
Trustee may enforce the security created in favour of the Security
Trustee under the Funding Deed of Charge in accordance with the
provisions thereof;
(e) each of the parties hereto hereby agrees that notwithstanding any
other provision of this Agreement or any other Current Issuer
Transaction Document, no sum due or owing to any party to this
Agreement from or by Funding under this Agreement shall be payable by
Funding except to the extent that Funding has sufficient funds
available or (following enforcement of the Funding Security) the
Security Trustee has realised sufficient funds from the Funding
Security to pay such sum subject to and in accordance with the
relevant Funding Priority of Payments and provided that all
liabilities of Funding required to be paid in priority thereto or pari
passu therewith pursuant to such Funding Priority of Payments have
been paid, discharged and/or otherwise provided for in full; and
(f) each of the parties hereto hereby agrees that it shall not take any
steps for the purpose of recovering any amount payable by Funding or
enforcing any rights arising out of this Agreement against Funding
otherwise than in accordance with the Funding Deed of Charge;
(g) the Account Bank hereby agrees that it will notify the Cash Manager,
Funding and the Security Trustee if compliance with any instruction
would cause the Funding (Current Issuer) GIC Account to have a
negative balance, such notification to be given on the same London
Business Day it determines that compliance with such instruction would
cause the Funding (Current Issuer) GIC Account to have a negative
balance; and
(h) the Account Bank hereby acknowledges that Funding has, pursuant to the
Funding 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 Funding
(Current Issuer) GIC Account and all of its rights under this
Agreement to the Security Trustee.
The provisions of Clause 6 of the Funding Deed of Charge shall prevail in
the event that and to the extent that they conflict with the provisions of
this Clause 5.1.
5.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT: By its execution of the Funding
Deed of
4
Charge, the Account Bank acknowledges and consents to the assignments,
charges and Security Interests (including the Jersey Security Interests)
made or granted by Funding under Clause 3 (Funding Security) of such
Funding Deed of Charge.
5.3 MONTHLY STATEMENT: Unless and until directed otherwise by the Security
Trustee, the Account Bank shall provide each of the Cash Manager, Funding
and the Security Trustee with a statement in respect of the Funding
(Current Issuer) GIC Account automatically on a monthly basis (in
accordance with Clause 4.3 (Statements)) and also as soon as reasonably
practicable after receipt of a request for a statement (other than with
respect to the Security Trustee, to which such statements will be provided
upon request). The Account Bank is hereby authorised by Funding to provide
statements in respect of the Funding (Current Issuer) GIC Account to the
Cash Manager and the Security Trustee.
6. CERTIFICATION, INDEMNITY AND ENFORCEMENT NOTICE
6.1 ACCOUNT BANK TO COMPLY WITH CASH MANAGER'S INSTRUCTIONS: Unless otherwise
directed pursuant to Clause 6.3 (Consequences of an Intercompany Loan
Enforcement Notice), in making any transfer or payment from the Funding
(Current Issuer) GIC Account in accordance with this Agreement, the Account
Bank shall be entitled to act as directed by the Cash Manager pursuant to
Clauses 2.1 (Instructions from the Cash Manager), 2.2 (Timing of Payment)
and 3 (Payments) and to rely as to the amount of any such transfer or
payment on the Cash Manager's instructions in accordance with the Mandate,
and the Account Bank shall have no liability to the Cash Manager, Funding,
or the Security Trustee except in the case of its wilful default or
negligence.
6.2 FUNDING'S INDEMNITY: Subject to the priority of payments in the Funding
Deed of Charge, Funding shall indemnify the Account Bank, against any loss,
cost, damage, charge or expense incurred by the Account Bank 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 Account Bank (if any) for the operation of the
Funding (Current Issuer) GIC Account other than as provided in this
Agreement; and
(b) any loss, cost, damage, charge or expense arising from any breach by
the Account Bank of its obligations under this Agreement.
6.3 CONSEQUENCES OF AN INTERCOMPANY LOAN ENFORCEMENT NOTICE: The Account Bank
acknowledges that, if it receives notice in writing from the Security
Trustee to the effect that (a) the Security Trustee has served an
Intercompany Loan Enforcement Notice or (b) that the appointment of
Northern Rock plc as Cash Manager under the Cash Management Agreement has
been terminated (but without prejudice to Clause 6.1 (Account Bank to
Comply with Cash Manager's Instructions) above) all right, authority and
power of Funding and the Cash Manager in respect of the Funding (Current
Issuer) GIC Account shall be terminated and be of no further effect and the
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 Account
Bank on substantially the same terms as
5
this Agreement) in relation to the operation of the Funding (Current
Issuer) GIC Account.
7. CHANGE OF SECURITY TRUSTEE OR ACCOUNT BANK
7.1 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 Funding Deed of Charge, the existing
Security Trustee or the retiring Security Trustee, the Cash Manager,
Funding and the Account Bank shall execute such documents and take such
actions 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. It is acknowledged that a trust corporation may be
appointed as sole trustee and in the event that there are one or more
Security Trustees, at least one of such Security Trustees shall be a trust
corporation.
7.2 CHANGE OF ACCOUNT BANK: If there is any change in the identity of the
Account Bank, the Cash Manager, Funding and the Security Trustee shall
execute such documents and take such actions as the new Account Bank and
the outgoing Account Bank and the Security Trustee may require for the
purpose of vesting in the new Account Bank the rights and obligations of
the outgoing Account Bank and releasing the outgoing Account Bank from its
future obligations under this Agreement.
8. TERMINATION
8.1 TERMINATION EVENTS: THE CASH MANAGER OR FUNDING:
(i) may (with the prior written consent of the Security Trustee)
terminate this Agreement in the event that the matters specified
in paragraphs (a) or (f) below occur; and
(ii) shall (with the prior written consent of the Security Trustee)
terminate this Agreement in the event that any of the matters
specified in paragraphs (b) to (e) (inclusive) below occur,
in each case by serving a written notice of termination on the Account Bank
in any of the following circumstances:
(a) if a deduction or withholding for or on account of any Tax is imposed,
or it appears likely that such a deduction or withholding will be
imposed, in respect of the interest payable on the Funding (Current
Issuer) GIC Account; or
(b) if the short-term, unguaranteed and unsubordinated debt obligations of
the Account Bank falls below a rating of A-1+ by S&P, P-1 by Moody's
or F1+ by Fitch, respectively; or
(c) if the Account Bank, other than for the purposes of such amalgamation
6
or reconstruction as is referred to in paragraph (d) below, ceases or,
through an authorised action of the board of directors of the Account
Bank, threatens to cease to carry on all or substantially all of its
business or the Account Bank is deemed unable to pay its debts as and
when they fall due within the meaning of Section 123(1) and 123(2) of
the Insolvency Xxx 0000 (as that Section may be amended) or ceases to
be an authorised institution under the Financial Services and Markets
Xxx 0000; or
(d) if an order is made or an effective resolution is passed for the
winding-up of the Account Bank except a winding-up for the purposes of
or pursuant to an amalgamation or reconstruction the terms of which
have previously been approved by the Security Trustee in writing (such
approval not to be unreasonably withheld or delayed); or
(e) if proceedings are initiated against the Account Bank under any
applicable liquidation, insolvency, bankruptcy, composition,
reorganisation (other than a reorganisation where the Account Bank is
solvent) or other similar laws (including, but not limited to,
presentation of a petition for an administration order) and (except in
the case of presentation of petition for an administration order) such
proceedings are not, in the reasonable opinion of the Security Trustee
as applicable, being disputed in good faith with a reasonable prospect
of success or an administration order is granted or an administrative
receiver or other receiver, liquidator, trustee in sequestration or
other similar official is appointed in relation to the Account Bank or
in relation to the whole or any substantial part of the undertaking or
assets of the Account Bank, or an encumbrancer takes possession of the
whole or any substantial part of the undertaking or assets of the
Account Bank, or a distress, execution or diligence or other process
is levied or enforced upon or sued out against the whole or any
substantial part of the undertaking or assets of the 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
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
(f) if the Account Bank fails to perform any of its obligations under this
Agreement and such failure remains unremedied for three London
Business Days after the Cash Manager, Funding or the Security Trustee
has given notice of such failure.
8.2 TERMINATION OPTION: Funding may, upon a breach by the Account Bank of its
obligations under this Agreement, the Funding (Current Issuer) Guaranteed
Investment Contract or the Funding Deed of Charge, by giving one month's
prior written notice to the Account Bank (with a copy to the Security
Trustee), terminate the appointment of the Account Bank, provided that:
(a) such termination shall not be effective until a replacement financial
institution or institutions (with a short-term, unguaranteed and
unsubordinated debt obligation rating of at least A-1+ (in the case of
S&P), P-1 (in the case of Moody's) and F1+ (in
7
the case of Fitch)) shall have entered into an agreement in form and
substance similar to this Agreement and into an agreement in form and
substance similar to the Funding (Current Issuer) Guaranteed
Investment Contract; and
(b) such termination would not adversely affect the then current ratings
of the Current Issuer Notes.
The Cash Manager and Funding shall use reasonable endeavours to agree such
terms with such a replacement financial institution or institutions within
30 days of the date of the notice. In the event of such termination the
Account Bank shall assist the other parties hereto to effect an orderly
transition of the banking arrangements documented hereby Funding shall
reimburse the 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.
8.3 NOTIFICATION OF TERMINATION EVENT: Each of Funding, the Cash Manager and
the Account Bank undertakes and agrees to notify the Security Trustee of
any event which would or could entitle the Security Trustee to serve a
notice of termination pursuant to Clause 8.4 (Termination by the Security
Trustee) promptly upon becoming aware thereof.
8.4 TERMINATION BY SECURITY TRUSTEE: In addition, prior to the service of an
Intercompany Loan Enforcement Notice, the Security Trustee may terminate
this Agreement and close the Funding (Current Issuer) GIC Account by
serving a notice of termination if any of the events specified in Clause
8.1(a) to (f) (inclusive) (Termination Events) of this Agreement occurs in
relation to the Account Bank. Following the service of an Intercompany Loan
Enforcement Notice, the Security Trustee may serve a notice of termination
at any time.
8.5 AUTOMATIC TERMINATION: This Agreement shall automatically terminate (if not
terminated earlier pursuant to this Clause 8) on the date falling 90 days
after the termination of the Funding Deed of Charge.
8.6 TERMINATION BY ACCOUNT BANK: The Account Bank may terminate this Agreement
and cease to operate the Funding (Current Issuer) GIC Account 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 a Payment
Date or less than 10 London Business Days before a 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 a
Payment Date or less than 10 London Business Days before a Payment
Date to each of the other parties hereto, if the Account Bank shall
have demanded payment of its due charges or any interest and the same
shall have remained unpaid for a period of two months, provided that
if the relevant amounts have been paid on or before the date six weeks
after the date of delivery of such notice then the notice shall have
no effect,
8
provided that such termination shall not take effect:
(i) until a replacement financial institution or institutions
(with a short-term, unguaranteed and unsubordinated debt
obligation rating of at least A-1+ (in the case of S&P), P-1
(in the case of Moody's) and F1+ (in the case of Fitch))
shall have entered into an agreement in form and substance
similar to this Agreement; and
(ii) if the then current ratings of the Current Issuer Notes
would be adversely affected thereby.
In the event of such termination and cessation, the Account Bank shall
assist the other parties hereto to effect an orderly transition of the
banking arrangements documented hereby.
9. 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.
10. 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 any applicable 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.
11. COSTS
Funding agrees to pay, in accordance with the Funding Priority of Payments,
the reasonable costs and any amounts in respect of Irrecoverable VAT
thereon (including reasonable legal costs and expenses) of the Account Bank
in connection with the negotiation of this Agreement and the establishment
of the Funding (Current Issuer) GIC Account and the negotiation and
execution of any further documents and the taking of any further action to
be executed or taken pursuant to Clauses 7 (Change of Security Trustee or
Account Bank), 8 (Termination) (other than Clauses 8.1(b), 8.1(c), 8.1(d),
8.1(e) and 8.1(f) (Termination Events), 8.5 (Automatic Termination) and 8.6
(Termination by Account Bank) and 9 (Further Assurance), except any costs
incurred by the Account Bank directly arising from the termination by it
pursuant to Clause 8.6(a) (Termination by Account Bank) of the banking
arrangements granted under this Agreement.
9
12. NOTICES
12.1 Any notices or other communication or document 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 17.00
hours (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 Cash Manager to Northern Rock plc, Northern
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx xxxx Xxxx XX0 0XX (facsimile
number 0191 213 2203) for the attention of the Group Secretary;
(b) in the case of Funding, to Granite Finance Funding Limited, 00
Xxx Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxxx, Xxxxxx XX0X 0XX
(facsimile number 0207 332 6199) for the attention of the Company
Secretary;
(c) in the case of the Security Trustee, to The Bank of New York,
whose principal office is at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX
(facsimile number 0207 964 6061 / 0207 964 6399) for the
attention of Global Structured Finance (Corporate Trust); and
(d) in the case of the Account Bank, to Lloyds TSB Bank plc, 00
Xxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number 0207 623 2338)
for the attention of Treasury Division (Graham Spary);
or to such other address or facsimile number or for the attention of such
other person or entity as may from time to time be notified by any party to
the others by written notice in accordance with the provisions of this
Clause 12.1.
12.2 Notwithstanding the provisions of Clause 12.1 (Notices), irrevocable
instructions to the Current Issuer Account Bank to effect payment on any
date will not be deemed to have been delivered unless and until actual
receipt of such instructions in legible form by the Current Issuer Account
Bank.
12.3 The Current Issuer Account Bank covenants and undertakes that, upon receipt
of any such instructions in an illegible form, it will immediately notify
the party from whom such instructions were received.
13. INTEREST
Interest shall be paid on the Funding (Current Issuer) GIC Account in
accordance with the terms of the Funding (Current Issuer) Guaranteed
Investment Contract.
10
14. WITHHOLDING
All payments by the 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 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 Funding or the Security Trustee 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 Funding in full by credit to the Funding (Current
Issuer) GIC Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or
withholding which the Account Bank has made pursuant to this
Clause 14 and which is subsequently received by the Account Bank.
15. TAX STATUS
15.1 The Account Bank is a bank for the purposes of section 349 of the Income
and Corporation Xxxxx Xxx 0000, is entering into this Agreement in the
ordinary course of its business, will pay interest pursuant hereto in the
ordinary course of such business, will bring into account payments (other
than deposits) made under this Agreement in computing its income for United
Kingdom Tax purposes and will not cease to be 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.
15.2 The 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
Account Bank in Clause 15.1 above.
16. 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.
11
17. 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. 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.
18. ASSIGNMENT
Subject as provided in or contemplated by Clauses 5.1(f) (Restriction on
Rights) and 7.2 (Change of Account Bank) :
(a) the Account Bank may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of Funding and
the Security Trustee;
(b) other than its assignments made under the Funding Deed of Charge,
Funding may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Account Bank and
the Security Trustee; and
(c) the 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 Funding and the Security Trustee (such consent not to be
unreasonably withheld).
19. 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 Cash Manager, the Account Bank or Funding hereunder.
Furthermore, any liberty or power which may be exercised or any
determination which may be made hereunder by the Security Trustee may be
exercised or made in the Security Trustee's absolute discretion without any
obligation to give reasons therefor, but in any event must be exercised or
made in accordance with the provisions of the Funding Deed of Charge.
20. NEW INTERCOMPANY LOAN AGREEMENTS
If Funding enters into any New Intercompany Loan Agreements after the date
hereof, then the parties hereto shall execute such documents and take such
action as may be necessary or required by the Rating Agencies for the
purpose of including any New Issuer, any New Start-Up Loan Provider or any
other person who has executed an Accession Undertaking in the Funding
Transaction Documents.
21. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement may not enforce any of its
terms under the Contracts (Rights of Third Parties) Xxx 0000, but this
shall not affect any right or remedy of a third party which exists or is
available apart from the Act.
12
22. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
(when executed) shall be an original. Such counterparts, when taken
together, shall constitute one and the same document.
23. GOVERNING LAW AND JURISDICTION; PROCESS AGENTS; APPROPRIATE FORUM
23.1 GOVERNING LAW: THIS AGREEMENT IS GOVERNED BY, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH, ENGLISH LAW.
23.2 JURISDICTION: Each of the parties hereto irrevocably agrees that the courts
of England shall have jurisdiction to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out of or in
connection with this Agreement and, for such purposes, irrevocably submits
to the jurisdiction of such courts.
23.3 PROCESS AGENTS: Funding irrevocably and unconditionally appoints Mourant &
Co. Capital (SPV) Limited at 0xx Xxxxx, 00 Xxx Xxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxx XX0X 0XX or otherwise at its registered office for the time being as
its agent for service of process in England in respect of any proceedings
in respect of this Agreement and undertakes that in the event of Mourant &
Co. Capital (SPV) Limited ceasing so to act it will appoint another person
with a registered office in London as its agent for service of process.
23.4 APPROPRIATE FORUM: Each of the parties hereto irrevocably waives any
objection which it might now or hereafter have to the courts of England
being nominated as the forum to hear and determine any Proceedings and to
settle any disputes, and agrees not to claim that any such court is not a
convenient or appropriate forum.
IN WITNESS whereof the parties hereto have executed this Agreement the day and
year first before written.
13
SCHEDULE 1
Form of Mandate
BANK MANDATE - FUNDING (GRANITE 02-2) GIC ACCOUNT
Resolution of the Board of Directors of GRANITE FINANCE FUNDING LIMITED (the
"COMPANY").
At a meeting of the Board of Directors of the Company held at 00 Xxx Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX on or about [o] September 2002:
IT WAS RESOLVED THAT:
1. The account number 0000000 , Sort Code 30/15/57 , reference `Granite022GI',
in the name of the Company held with Lloyds TSB Bank plc (the "BANK") at
its Treasury Division (the "FUNDING (CURRENT ISSUER) GIC ACCOUNT") will be
used as an account for the benefit of the Company.
2. The mandate given to the Bank by virtue of this document (the "MANDATE") is
given on the basis that the Bank complies with the procedure set out in,
and the terms of, this document.
3. Prior to receipt of a notice in writing from the security trustee to the
contrary, in relation to the Funding (Current Issuer) GIC Account, the Bank
is hereby authorised to honour and comply with all cheques, drafts, bills,
payments by way of the Clearing House Automated Payment System, promissory
notes, acceptances, negotiable instruments and orders expressed to be
drawn, accepted, made or given and all directions or instructions given in
writing or by way of electronic impulses in respect of the Funding (Current
Issuer) GIC Account to the extent that compliance with the same should not
result in a debit balance; provided that (and subject to paragraph 7) any
such cheques, drafts, bills, promissory notes, acceptances, negotiable
instruments, directions, orders or instructions, and/or endorsements are
signed by any two people from Schedule 1. The Bank is hereby authorised to
act on any information given by two Directors or by one Director and the
Secretary of the Company regarding any changes to Schedule 1. For these
purposes, a "BUSINESS DAY" is a day (other than a Saturday or Sunday) on
which banks are generally open for business in London.
4. This Mandate is given on the basis that the Bank:
(a) acknowledges that, pursuant to a Funding Deed of Charge entered into
between, inter alios, the Company and The Bank of New York (the
"SECURITY TRUSTEE") on 26 March 2001 (the "FUNDING DEED OF CHARGE"),
the Company has charged its interest in the Funding (Current Issuer)
GIC Account to the Security Trustee by way of security;
(b) prior to receipt of an Intercompany Loan Enforcement Notice (as
defined in the Funding Deed of Charge) from the Security Trustee,
agrees to comply with the directions of the Company (or, pursuant to
paragraph 8, of Northern Rock plc (the "CASH MANAGER") as its agent)
in respect of the operation of the Funding (Current Issuer) GIC
Account and the Bank shall be entitled to rely on any such direction
14
purporting to have been given by or on behalf of the Company (or the
Cash Manager) without enquiry; and
(c) upon receipt of an Intercompany Loan Enforcement Notice from the
Security Trustee:
(i) agrees to comply with the directions of the Security Trustee
expressed to be given by the Security Trustee pursuant to the
Funding Deed of Charge in respect of the operation of the Funding
(Current Issuer) GIC Account and the Bank shall be entitled to
rely on any such direction purporting to have been given on
behalf of the Security Trustee without enquiry; and
(ii) agrees that all right, authority and power of the Company in
respect of the operation of the Funding (Current Issuer) GIC
Account shall be deemed terminated and of no further effect and
the Bank agrees that it shall, upon receipt of the Intercompany
Loan Enforcement Notice from the Security Trustee comply with the
directions of the Security Trustee or any receiver appointed
under the Funding Deed of Charge in relation to the operation of
the Funding (Current Issuer) GIC Account unless otherwise
required by operation of law or by the order or direction of a
competent Court or Tribunal.
5. Unless and until the Bank receives notice in writing from or purporting to
be from the Security Trustee to the contrary, the Bank is authorised to
continue to operate the Funding (Current Issuer) GIC Account without regard
to the security interests pursuant to the Funding Deed of Charge.
6. At any time prior to the release by the Security Trustee of the Funding
Deed of Charge, the Mandate given to the Bank by virtue of these
resolutions shall remain in force, unless and until the Bank has received a
notice of amendment hereto from the Security Trustee.
7. These resolutions shall be communicated to the Bank and remain in force
until an amendment resolution shall be passed by the Board of Directors and
a copy thereof and of such consent, certified by any two of the Directors
and/or the Secretary, shall be received by the Bank.
8. The Company authorises the Cash Manager to instruct the Bank in relation to
the Funding (Current Issuer) GIC Account and authorises the Bank to act on
those instructions in the manner set forth in the Funding (Current Issuer)
Bank Account Agreement.
-----------------------
Authorised Signatory
15
SCHEDULE 1 TO THE BANK MANDATE - FUNDING (GRANITE 02-2) GIC ACCOUNT
The following sets out the signatories for the Funding (Current Issuer) GIC
Account, in accordance with Clause 3 of the Bank Mandate - Funding (Granite
02-2) GIC Account.
Northern Rock plc personnel authorised to sign any cheques, drafts, bills,
promissory notes, acceptances, negotiable instruments, directions, orders or
instructions, and/or endorsements in respect of accounts in the name of Granite
Finance Funding Limited held at Lloyds TSB Bank plc:
NAME TITLE SPECIMEN SIGNATURE
---- ----- ------------------
Treasury Systems
A R Xxxxxxxxxx Development Manager
------------------------------
Treasury
A Xxxxxx Administrator
------------------------------
Deputy Treasury
X X Xxxxx Director
------------------------------
Senior Manager -
Treasury
D Xxxxxx Xxxxxx Settlements
------------------------------
Head of Treasury
X X Xxxxxxxxx Risk
------------------------------
Senior Manager -
X Xxxxxxx Treasury Accounting
------------------------------
Assistant Director
X Xxxxxxx (Securitisation)
------------------------------
X X Xxxxxx Treasury Director
------------------------------
16
EXECUTION PAGE
EXECUTED for and on behalf of )
GRANITE FINANCE FUNDING LIMITED )
by: )
)
)
Name: XXXXX XXXXXXX
Title: DIRECTOR
EXECUTED for and on behalf of )
NORTHERN ROCK PLC )
by: )
)
)
Name:
Title:
EXECUTED for and on behalf of )
THE BANK OF NEW YORK )
by: )
)
)
Name: XXXX XXXXXXX
Title: ASSISTANT VICE PRESIDENT
EXECUTED for and on behalf of )
LLOYDS TSB BANK PLC )
by: )
)
)
Name: XXXX XXXXXXX
Title: DIRECTOR, UK FINANCIAL INSTITUTIONS
17
