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CONFORMED COPY
DATED 26th July, 2000
XXXXXX FUNDING LIMITED
as Funding
and
XXXXXX TRUSTEES LIMITED
as Mortgages Trustee
and
ABBEY NATIONAL PLC
Cash Manager and Account Bank
and
THE CHASE MANHATTAN BANK, LONDON
BRANCH
as Security Trustee
XXXXX & XXXXX
London
CONTENTS
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THIS AGREEMENT is made on 26th July, 2000
BETWEEN:
| (1) |
XXXXXX FUNDING LIMITED (registered
number 3982428), a private limited company incorporated under the laws of
England and Wales, whose registered office is at Xxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxx XX0 0XX ("Funding"); |
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| (2) |
XXXXXX TRUSTEES LIMITED (registered
number 3982431), a private limited company incorporated under the laws of
England and Wales, whose registered office is at Xxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxx XX0 0XX (the "Mortgages Trustee"); |
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| (3) |
ABBEY NATIONAL PLC,
a public limited company incorporated under the laws of England and Wales
whose registered office is at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX,
in its capacity as Cash Manager to Funding and the Mortgages Trustee pursuant
to the Cash Management Agreement (the "Cash
Manager") and in its capacity as account
bank acting from the branch located at (in the case of the Mortgages Trustee
GIC Account, the Funding Transaction Account and the Funding GIC Account)
00 Xxxxxxx Xxxxxx, Xxxxxx X0 0XX (the "Account
Bank"); and |
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| (4) |
THE CHASE MANHATTAN BANK, LONDON BRANCH
whose principal office is at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the "Security
Trustee", which expression shall include
the trustee or trustees for the time being under the Funding Deed of Charge). |
IT IS HEREBY AGREED as follows:
| 1. |
DEFINITIONS AND INTERPRETATION |
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| 1.1 |
The Master Definitions Schedule signed
for the purposes of identification by Xxxxx & Overy and Xxxxxxxxx and
May on 26th July, 2000 (as the same may be amended, varied or supplemented
from time to time with the consent of the parties hereto) is expressly and
specifically incorporated into this Agreement and, accordingly, the expressions
defined in the Master Definitions Schedule (as so amended, varied or supplemented)
shall, except where the context otherwise requires and save where otherwise
defined herein, have the same meanings in this Agreement, including the
Recitals hereto and this Agreement shall be construed in accordance with
the interpretation provisions set out in Clause 2 of that Master Definitions
Schedule. |
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| 1.2 |
Any reference in this Agreement to
any discretion, power, right, duty or obligation on the part of the Mortgages
Trustee shall be as exercised by the Mortgages Trustee only as directed
by the Beneficiaries but subject in each case to the provisions of Clauses
13.2 and 13.3
of the Mortgages Trust Deed. |
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| 2. |
THE FUNDING TRANSACTION ACCOUNT,
THE FUNDING GIC ACCOUNT AND THE MORTGAGES TRUSTEE GIC ACCOUNT |
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| 2.1 |
Instructions from the Cash Manager |
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(a) |
Subject to Clause
6.4, the Account Bank shall comply
with any direction of the Cash Manager to effect a payment by debiting any
one of: the Funding Transaction Account, the Funding GIC Account or the
Mortgages Trustee GIC Account if such |
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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 and (ii) complies with the Funding
Transaction Account Mandate, the Funding GIC Account Mandate, or the Mortgages
Trustee GIC Account Mandate as appropriate. |
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(b) |
The 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 Funding Transaction Account Mandate, the Funding GIC Account Mandate
or the Mortgages Trustee GIC Account Mandate as appropriate, 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 and no delay in giving (or the absence of giving) the Account
Bank written confirmation of any such direction shall affect the validity
of, or time of giving, the relevant telephone direction. |
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| 2.2 |
Timing of Payment |
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Without prejudice to the provisions
of Clause 3.2,
the Account Bank agrees that if directed pursuant to Clause
2.1 to make any payment then, subject
to Clauses 2.4 and
6.4 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. 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. |
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| 2.3 |
Account Bank Charges |
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The charges of the Account Bank for
the operation of the Funding Transaction Account, the Funding GIC Account
and the Mortgages Trustee 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 Business
Day, the next succeeding 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, 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
any of the Funding Transaction Account, the Funding GIC Account or the Mortgages
Trustee GIC Account. |
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| 2.4 |
No Negative Balance |
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Notwithstanding the provisions of
Clause 2.1,
amounts shall only be withdrawn from the Funding Transaction Account, the
Funding GIC Account or the Mortgages Trustee GIC Account to the extent that
such withdrawal does not cause the Funding Transaction Account, the Funding
GIC Account or the Mortgages Trustee GIC Account, as appropriate, to have
a negative balance. |
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| 3. |
PAYMENT |
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Instructions from the Cash Manager |
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(a) |
The Cash Manager shall, no later than 11.00
a.m. on the second London Business Day before the date upon which any payment
is due to be made from the Mortgages |
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Trustee GIC Account, the Funding Transaction
Account and/or the Funding GIC Account (including the payments due to be
made on each Interest Payment Date), submit to the Account Bank irrevocable
written instructions as to the payments to be made out of such accounts
on such date. |
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(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
control) on the relevant date if the instructions comply with the relevant
Mandate. |
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| 4. |
MANDATES AND STATEMENTS |
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| 4.1 |
Signing and Delivery of Mandates |
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Funding and the Mortgages Trustee
have delivered to the Account Bank prior to the Initial Closing Date the
relevant Mandates in the forms set out in Schedule
1 hereto duly executed and relating to the Funding Transaction Account,
the Funding GIC Account and the Mortgages Trustee GIC Account respectively,
and the Account Bank hereby confirms to the Security Trustee that the Mandates
have been provided to it, that the Funding Transaction Account, the Funding
GIC Account and the Mortgages Trustee GIC Account are open and that the
respective Mandates are operative. |
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| 4.2 |
Amendment or Revocation |
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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 any Mandate relating to the Funding
Transaction Account, the Funding GIC Account and the Mortgages Trustee 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) but, unless such 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 Abbey National as Cash Manager under the Cash Management
Agreement has been terminated. |
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| 4.3 |
Statements |
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The Account Bank shall submit monthly
written statements to the Cash Manager setting out the amounts standing
to the credit of the Funding Transaction Account, the Funding GIC Account
and the Mortgages Trustee GIC Account respectively at the close of business
on the immediately preceding London Business Day within three London Business
Days of the statement date. |
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| 5. |
ACKNOWLEDGEMENT BY THE ACCOUNT
BANK |
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| 5.1 |
Restriction on Account Bank's
Rights |
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Notwithstanding anything to the contrary
in the Mandates, the Account Bank hereby: |
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(a) |
waives any right it has or may hereafter acquire
to combine, consolidate or merge Funding Transaction Account and/or the
Funding GIC Account and/or the Mortgages Trustee GIC Account with any other
account of the Cash Manager, the Mortgages |
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Trustee, Funding, the Seller, the Security
Trustee or any other person or any liabilities of the Cash Manager, the
Mortgages Trustee, Funding, the Seller, the Security Trustee or any other
person to it; |
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(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 the Funding Transaction Account and/or
the Funding GIC Account and/or the Mortgages Trustee GIC Account in or towards
satisfaction of any liabilities to it of the Cash Manager, the Mortgages
Trustee, Funding, the Seller, the Security Trustee or any other person; |
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(c) |
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 Mortgages Trustee or Funding, or procure the winding-up or liquidation
of the Mortgages Trustee or Funding or the making of an administration order
in relation to the Mortgages Trustee or Funding in respect of any of the
liabilities of the Mortgages Trustee or Funding whatsoever; |
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(d) |
agrees that it shall have recourse
only to sums paid to or received by (or on behalf of) the Mortgages Trustee
or Funding pursuant to this Agreement, the Mortgage Sale Agreement, the
Mortgages Trust Deed, the Intercompany Loan Agreements, the Funding Swap
Agreement or any other document entered into by the Mortgages Trustee and
Funding in relation to the Intercompany Loans or the Loans; |
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(e) |
agrees that it will notify: |
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(i) |
the Cash Manager, Funding and the Security
Trustee if compliance with any instruction would cause the Funding Transaction
Account to have a negative balance; |
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(ii) |
the Cash Manager, Funding and the Security
Trustee if compliance with any instruction would cause the Funding GIC Account
to have a negative balance; and |
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(iii) |
the Cash Manager, the Mortgages Trustee and
the Security Trustee if compliance with any instruction would cause the
Mortgages Trustee GIC Account to time have a negative balance; |
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such notification to be given on
the same London Business Day it determines that compliance with such instruction
would cause any such account to have a negative balance; and |
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(f) |
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 Transaction
Account and the Funding GIC Account and all of its rights under this Agreement
to the Security Trustee. |
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| 5.2 |
Notice of Assignment and Acknowledgement |
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The Account Bank agrees that promptly
upon receipt of a notice of assignment signed by Funding, in (or substantially
in) the form of notice set out in Part
1 of Schedule 2 hereto
the Account Bank shall sign and duly return to Funding, with a copy to the
Security Trustee, an |
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acknowledgement in (or substantially
in) the form of acknowledgement set out in Part 2 of Schedule
2 hereto. |
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| 5.3 |
Monthly Statement |
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Unless and until directed otherwise
by the Security Trustee, the Account Bank shall provide: |
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(a) |
each of the Cash Manager, Funding and the Security
Trustee with a statement in respect of the Funding Transaction Account automatically
on a monthly basis and also as soon as reasonably practicable after receipt
of a request for a statement. The Account Bank is hereby authorised by Funding
to provide statements in respect of the Funding Transaction Account to the
Cash Manager and the Security Trustee; |
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(b) |
each of the Cash Manager, Funding and the Security
Trustee with a statement in respect of the Funding GIC Account automatically
on a monthly basis and also as soon as reasonably practicable after receipt
of a request for a statement. The Account Bank is hereby authorised by Funding
to provide statements in respect of the Funding GIC Account to the Cash
Manager and the Security Trustee; and |
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(c) |
each of the Cash Manager, the Mortgages Trustee
and the Security Trustee with a statement in respect of the Mortgages Trustee
GIC Account automatically on a monthly basis and also as soon as reasonably
practicable after receipt of a request for a statement. The Account Bank
is hereby authorised by the Mortgages Trustee (as trustee for the Beneficiaries)
to provide statements in respect of the Mortgages Trustee GIC Account to
the Cash Manager and the Security Trustee. |
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| 6. |
CERTIFICATION, INDEMNITY AND ENFORCEMENT
NOTICE |
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| 6.1 |
Account Bank to Comply with Cash
Manager's Instructions |
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Unless otherwise directed by the
Security Trustee pursuant to Clause
6.4, in making any transfer or payment
from the Funding Transaction Account, the Funding GIC Account or the Mortgages
Trustee 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 and 3.1 and
to rely as to the amount of any such transfer or payment on the Cash Manager's
instructions in accordance with the relevant Mandate, and the Account Bank
shall have no liability to the Cash Manager, the Mortgages Trustee, Funding,
the Seller or the Security Trustee except in the case of its wilful default
or negligence. |
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| 6.2 |
Funding's Indemnity |
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Funding shall indemnify the Account
Bank to the extent of funds then standing to the credit of the Funding Transaction
Account and/or the Funding GIC Account 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: |
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(a) |
the charges of the Account Bank (if any) for
the operation of the Funding Transaction Account and/or the Funding GIC
Account other than as provided in this Agreement; and |
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(b) |
any loss, cost, damage, charge or expense arising
from any breach by the Account Bank of its obligations under this Agreement. |
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| 6.3 |
Mortgages Trustee Indemnity |
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The Mortgages Trustee shall indemnify
the Account Bank to the extent of funds then standing to the credit of the
Mortgages Trustee GIC Account 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: |
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(a) |
the charges of the Account Bank (if any) for
the operation of the Mortgages Trustee GIC Account other than as provided
in this Agreement; and |
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(b) |
any loss, cost, damage, charge or expense arising
from any breach by the Account Bank of its obligations under this Agreement. |
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| 6.4 |
Consequences of an Intercompany
Loan Enforcement Notice |
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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 Abbey National as Cash Manager under
the Cash Management Agreement has been terminated (but without prejudice
to Clause 6.1 above)
all right, authority and power of the Cash Manager in respect of the Mortgages
Trustee GIC Account, the Funding Transaction Account or the Funding 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 this Agreement) in relation to the operation of each of
the Funding Transaction Account, the Funding GIC Account and the Mortgages
Trustee GIC Account. |
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| 7. |
CHANGE OF SECURITY TRUSTEE OR
ACCOUNT BANK |
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| 7.1 |
Change of Security Trustee |
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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,
the Seller, the Mortgages Trustee, Funding and the 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. 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. |
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| 7.2 |
Change of Account Bank |
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If there is any change in the identity
of the Account Bank, the Cash Manager, the Mortgages Trustee, 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 |
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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. |
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| 7.3 |
Alternative Accounts |
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If, after the Initial Closing Date,
the Mortgages Trustee and the Beneficiaries agree that any Monthly Payments,
other interest received under and in respect of the Loans and any costs
or other amounts received under the Loans (including in any such case amounts
recovered on enforcement of rights against any Borrower, the Property or
the Borrower’s other property or assets) may be paid directly into
an account other than the Mortgages Trustee GIC Account (an "Alternative
Account"), then such agreement will
be subject to the following terms: |
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(a) |
the Alternative Account is maintained in the
name of the Mortgages Trustee; |
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(b) |
the Alternative Account is maintained with
a bank the short-term, unguaranteed and unsubordianted obligations of which
are rated A-1+ by Standard & Poors, P-1 by Xxxxx'x and F-1+ by Fitch
Ratings; |
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(c) |
amounts standing to the credit of the Alternative
Account are transferred by the Cash Manager to the Mortgages Trustee GIC
Account not later than one London Business Day after the date that they
are deposited in the Alternative Account; |
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(d) |
written notice is given to the bank at which
the Alternative Account is maintained that the sums standing to the credit
thereof are held on trust by the Mortgages Trustee for the Beneficiaries
pursuant to the terms of the Mortgages Trust Deed and such bank acknowledges
that trust in writing; and |
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(e) |
the bank at which the Alternative Account is
held enters into such agreements with the Security Trustee, Funding and/or
the Mortgages Trustee as the Rating Agencies shall shall reasonable require
for the purpose of protecting monies standing to the credit of the Alternative
Accounts. |
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| 8. |
TERMINATION |
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| 8.1 |
Termination Events |
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The Cash Manager or Funding, in
the case of the Funding Transaction Account or the Funding GIC Account,
or the Mortgages Trustee (as trustee for the Beneficiaries) in the case
of the Mortgages Trustee GIC Account: |
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(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 |
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(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, |
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in each case by serving a written
notice of termination on the Account Bank in any of the following circumstances: |
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(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 Transaction
Account, the Funding GIC Account or the Mortgages Trustee GIC Account; or |
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(b) |
if the short-term unsecured, unsubordinated
and unguaranteed debt obligations of the Account Bank falls below A-1+ by
S&P and P-1 by Xxxxx'x and F-1+ by Fitch Ratings respectively; or |
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(c) |
if the 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 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 Banking Xxx 0000; or |
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(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 Mortgages Trustee (as trustee
for the Beneficiaries) and Funding in writing (such approval not to be unreasonably
withheld or delayed); or |
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(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 Mortgages Trustee (as trustee for the Beneficiaries)
and Funding, 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 |
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(f) |
if the Account Bank fails to perform any of
its obligations under this Agreement and such failure remains unremedied
for three Business Days after the Cash Manager or the Security Trustee has
given notice of such failure. |
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| 8.2 |
Termination Option |
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The Mortgages Trustee (as trustee
for the Beneficiaries) and Funding may, upon a breach by the Account Bank
of its obligations under this Agreement, the First Issuer Bank Account Agreement,
the Funding Guarnateed Investment Contract, Mortgages Trustee Guaranteed |
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Investment Contract, the Funding
Liquidity Facility Agreement, the Cash Management Agreement, the First Issuer
Cash Management or the Servicing Agreement 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: |
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(a) |
such termination shall not be effective until
a replacement financial institution or institutions (with a short-term unsecured,
unsubordinated and unguaranteed debt obligation rating of at least P-1 (in
the case of Xxxxx'x) and A-1 + (in the case of S&P) and F-1+ (in the
case of Fitch Ratings)) shall have entered into an agreement in form and
substance similar to this Agreement; and |
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(b) |
such termination would not adversely affect
the then current ratings of the Notes. |
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The Cash Manager, the Mortgages
Trustee and Funding 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 Account
Bank shall assist the other parties hereto to effect an orderly transition
of the banking arrangements documented hereby and the Mortgages Trustee
and 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. |
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| 8.3 |
Notification of Termination
Event |
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Each of the Mortgages Trustee,
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 promptly upon becoming aware thereof. |
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| 8.4 |
Termination by Security Trustee |
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In addition, prior to the service
of an Intercompany Loan Enforcement Notice, the Security Trustee may terminate
this Agreement and close any of the Funding Transaction Account, the Funding
GIC Account or the Mortgages Trustee GIC Account by serving a notice of
termination if any of the events specified in Clause
8.1(a) to (f)
(inclusive) 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. |
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| 8.5 |
Automatic Termination |
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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 Mortgages Trust Deed. |
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| 8.6 |
Termination by Account Bank |
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The Account Bank may terminate
this Agreement and cease to operate the Funding Transaction Account and/or
the Funding GIC Account and/or the Mortgages Trustee GIC Account at any
time: |
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(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 |
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10
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(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 Account Bank shall have demanded payment of its due charges or any
interest and the same shall have remained unpaid for a period of three 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, |
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| |
Provided that such termination shall
not take effect: |
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|
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(i) |
until a replacement financial institution or
institutions (with a short-term unsecured, unsubordinated and unguaranteed
debt obligation rating of A-1+ (in the case of S&P), P-1 (in the case
of Xxxxx'x) and F-1+ (in the case of Fitch Ratings)) shall have entered
into an agreement in form and substance similar to this Agreement; and |
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|
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(ii) |
if the then current ratings of the Notes would
be adversely affected thereby. |
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|
| |
In either case the 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 Account
Bank shall assist the other parties hereto to effect an orderly transition
of the banking arrangements documented hereby. |
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| 9. |
FURTHER ASSURANCE |
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|
| |
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. |
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|
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| 10. |
CONFIDENTIALITY |
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|
|
| |
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. |
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| 11. |
COSTS |
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|
|
| |
Funding agrees to pay 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 Transaction
Account, the Funding GIC Account and the Mortgages Trustee GIC Account 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
7, 8
(other than Clauses
8.1(b), 8.1(c),
8.1(d),
8.1(e), 8.1(f), 8.1(g), 8.5 and 8.6(a)) and
9 |
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11
| 12. |
NOTICES |
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| 12.1 |
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 17.00 hours on a Business Day or on the next Business Day if delivered
thereafter or on a day which is not a 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: |
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| |
(a) |
in the case of the Cash Manager,
to Abbey National plc at Xxxxx Xxxxx Xxxxx Xxxxxx Xxxxxx XX0 0XX (facsimile
number 020 7612 4422) for the attention of the Company Secretary with a
copy to Abbey National plc, c/o Abbey House (AAM 319), 000 Xxxxxxx Xxxx
Xxxx, Xxxxxx Xxxxxx XX0 0XX (facsimile no. 01908 344 217) for the attention
of Securitisation Team, Risk Operations; |
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(b) |
in the case of the Mortgages Trustee,
to Xxxxxx Trustees Limited c/o Abbey House (AAM 319), 000 Xxxxxxx Xxxx Xxxx,
Xxxxxx Xxxxxx XX0 0XX (facsimile number 01908 344 217) for the attention
of Securitisation Team, Risk Operations; |
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| |
(c) |
in the case of the Seller, to Abbey
National plc at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX (facsimile number
020 7612 4422) for the attention of the Company Secretary with a copy to
Abbey National plc, c/o Abbey House (AAM 319), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxxx XX0 0XX (facsimile no. 01908 344 217) for the attention of Securitisation
Team, Risk Operations; |
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(d) |
in the case of Funding, to Xxxxxx
Funding Limited c/o Abbey House (AAM 319), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx
Xxxxxx XX0 0XX (facsimile number 01908 344 217) for the attention of Securitisation
Team, Risk Operations; |
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| |
(e) |
in the case of the Security Trustee,
to The Chase Manhattan Bank, London Branch, Trinity Tower, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0X 0XX attention Manager, Trust Administration, (facsimile
number 020 7777 5410); and |
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(f) |
in the case of the Account Bank,
to Abbey National plc at Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxx XX0 0XX (facsimile
number 020 7612 4422) for the attention of the Company Secretary with copies
to (i) Abbey National plc, 00 Xxxxxxx Xxxxxx, Xxxxxx X0 0XX (facsimile number
020 76125088) for the attention of Head of Subsidiary Banking and (ii) Abbey
National plc, c/o Abbey House (AAM 319), 000 Xxxxxxx Xxxx Xxxx, Xxxxxx Xxxxxx
XX0 0XX (facsimile no. 01908 344 217) for the attention of Securitisation
Team, Risk Operations; |
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| |
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. |
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| 13. |
INTEREST |
| |
| 13.1 |
The Account Bank shall pay, on the
first London business day in each month in respect of the preceding Determination
Period, interest on any cleared credit balances on the Funding Transaction
Account at a rate of LIBOR for three-month sterling deposits in respect
of such period less 0.25 per cent. per annum. |
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12
| 13.2 |
Interest shall be paid on the Mortgages
Trustee GIC Account and the Funding GIC Account in accordance with the terms
of the Mortgages Trustee Guaranteed Investment Contract and the Funding
Guaranteed Investment Contract respectively. |
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| 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: |
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| |
(a) |
ensure that the deduction or withholding
does not exceed the minimum amount legally required; |
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(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; |
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(c) |
furnish to the Mortgages Trustee,
Funding or the Security Trustee (as the case may be) within the period for
payment permitted by the relevant law, either: |
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| | |
(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 |
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| |
(d) |
account to Funding in full by credit
to the Funding Transaction Account or the Funding GIC Account (as the case
may be) and to the Mortgages Trustee in full by credit to the Mortgages
Trustee 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. |
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| 15. |
TAX STATUS |
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|
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. |
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|
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. |
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13
| 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. |
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| 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. |
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| 18. |
ASSIGNMENT |
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| |
Subject as provided in or contemplated
by Clauses 5.1(f) and
7.2: |
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(a) |
the Account Bank may not assign or transfer
any of its rights or obligations hereunder without the prior written consent
of the Mortgages Trustee, Funding and the Security Trustee; |
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| |
(b) |
the Mortgages Trustee and Funding may not assign
or transfer any of their rights or obligations hereunder without the prior
written consent of the Account Bank and the Security Trustee; and |
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(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 the Mortgages Trustee, Funding and the Security
Trustee (such consent not to be unreasonably withheld). |
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| 19. |
THE SECURITY TRUSTEE |
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| |
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, the Mortgages Trustee or Funding hereunder. |
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| 20. |
NEW INTERCOMPANY LOAN AGREEMENTS |
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| |
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 the New Issuer, any New Funding
Swap Provider, any New Start-Up Loan Provider or any other person who has
executed an Accession Undertaking or any New Term Advance in the Transaction
Documents. |
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| 21. |
EXCLUSION OF THIRD PARTY RIGHTS |
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| |
The parties to this Agreement do
not intend that any term of this Agreement should be enforced, by virtue
of the Contracts (Rights of Third Parties) Xxx 0000, by any person who is
not a party to this Agreement. |
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14
| 22. |
COUNTERPARTS |
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| |
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. |
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| 23. |
GOVERNING LAW |
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| |
This Agreement shall be governed by, and construed
in accordance with, the laws of England. |
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| IN WITNESS whereof the parties hereto
have executed this Agreement the day and year first before written. |
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15
SCHEDULE 1
FORMS OF MANDATE
In the forms attached
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16
SCHEDULE 2
PART 1
NOTICE OF CHARGE - FUNDING TRANSACTION ACCOUNT/FUNDING GIC ACCOUNT
| To: |
Abbey National plc |
| |
Xxxxx Xxxxx |
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Xxxxx Xxxxxx |
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Xxxxxx XX0 0XX |
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| For the attention of: |
Company Secretary |
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| and to: |
The Chase Manhattan Bank, London
Branch |
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Trinity Tower |
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9 Xxxxxx Xxxx Street |
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London E1W 1YT |
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| For the attention of: |
Manager, Trust Administration |
26 July, 2000
Dear Sirs,
| Re: Xxxxxx Funding Limited:
|
| • |
Funding Transaction Account Number 00000000
(sort code 090020) reference Xxxxxx Funding
Limited 8258 (the "Funding Transaction Account") |
| • |
Funding GIC Account Number 00000000 (sort
code 090020) ) reference Xxxxxx Funding Limited
8259 (the "Funding GIC Account") |
We hereby give you notice that, by a deed of charge dated of even date herewith and made between, inter alios, ourselves, Abbey National plc and The
Chase Manhattan Bank, London Branch (the "Security Trustee"), a copy of which is enclosed (the "Funding Deed of Charge"), we:
| (a) |
charged by way of first fixed charge all of
our right, title, benefit and interest present and future in, to and under
the Funding Transaction Account and the Funding GIC Account and all sums
of money standing to the credit thereof and all interest accruing from time
to time thereon; and |
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| (b) |
assigned all of our right, title, benefit and
interest present and future in, to and under the bank account agreement
of even date herewith between ourselves, yourselves, the Security Trustee
and Abbey National plc in its capacity as Seller and Cash Manager. |
Accordingly, amounts may and shall be withdrawn from the Funding Transaction Account or the Funding GIC Account in accordance with the provisions of the Funding Deed of Charge only until receipt by you of 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 confirmation of the Security Trustee.
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17
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 Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX for the attention of the Manager, Trust Administration.
This note of assignment is governed by, and construed in accordance with, the laws of England.
Yours faithfully
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|
for and on behalf of
XXXXXX FUNDING LIMITED |
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18
PART 2
ACKNOWLEDGEMENT - FUNDING TRANSACTION
ACCOUNT/FUNDING GIC ACCOUNT
| To: |
Xxxxxx Funding Limited |
| |
c/o Securitisation Team, Risk Operations |
| |
Abbey House (AAM 319) |
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000 Xxxxxxx Xxxx Xxxx |
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Xxxxxx Xxxxxx XX0 0XX |
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| and to: |
Manager, Trust Administration |
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The Chase Manhattan Bank, London
Branch |
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Trinity Tower |
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9 Xxxxxx Xxxx Street |
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London E1W 1YT |
| |
(the "Security
Trustee") |
26 July, 2000
Dear Sirs,
| Re: Xxxxxx Funding Limited:
|
| • |
Funding Transaction Account Number 00000000
(sort code 090020) reference Xxxxxx Funding
Limited 8258 (the "Funding Transaction Account") |
| • |
Funding GIC Account Number 00000000 (sort
code 090020) ) reference Xxxxxx Funding Limited
8259 (the "Funding GIC Account") |
We acknowledge receipt of the letter dated 26 July, 2000 from yourselves, a copy of which is attached. Words and expressions defined in that letter have the same meaning herein.
In consideration of your agreeing to maintain the above account, 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
ABBEY NATIONAL PLC |
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19
SIGNATORIES
| Signed by |
) |
| for and on behalf of |
) |
| XXXXXX FUNDING LIMITED |
) |
/s/ XXXXXX XxXXXXXXX |
| as Funding |
) |
| |
|
| |
|
| Signed by |
|
| for and on behalf of |
) |
| XXXXXX TRUSTEES LIMITED |
) |
/s/ XXXXXX XxXXXXXXX |
| as Mortgages Trustee |
) |
| |
|
| |
|
| Signed by |
) |
|
| For and on behalf of |
) |
|
| ABBEY NATIONAL PLC |
) |
/s/ XXX XXXXXX |
| as Cash Manager |
) |
|
| |
|
|
| |
|
|
| Signed by |
) |
|
| For and on behalf of |
) |
|
| ABBEY NATIONAL PLC |
) |
/s/ XXX XXXXXX |
| as Account Bank |
) |
|
| |
|
|
| |
|
|
| Signed by |
) |
|
| For and on behalf of |
) |
|
| THE CHASE MANHATTAN |
) |
/s/ XXXXXX XXXXX |
| BANK, LONDON BRANCH |
) |
|
| as Security Trustee |
) |
|
| |
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| ICM:435547.5 |
|
|
