AMENDED AND RESTATED MASTER ISSUER BANK ACCOUNT EXHIBIT 4.13
AGREEMENT
21 NOVEMBER 2007
PERMANENT MASTER ISSUER PLC
(AS MASTER ISSUER)
AND
BANK OF SCOTLAND PLC
(AS MASTER ISSUER CASH MANAGER AND MASTER ISSUER ACCOUNT BANK)
AND
THE BANK OF NEW YORK
(AS MASTER ISSUER SECURITY TRUSTEE)
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................1
2. The Master Issuer Transaction Account................................2
3. Additional Master Issuer Accounts....................................2
4. Payments.............................................................4
5. Mandates and Statements..............................................4
6. Acknowledgement by the Master Issuer Account Bank....................5
7. Certification, Indemnity and Acceleration Notice.....................6
8. Change of Master Issuer Security Trustee or Master
Issuer Account Bank..................................................7
9. Termination..........................................................7
10. Further Assurance...................................................10
11. Confidentiality.....................................................10
12. Costs...............................................................11
13. Notices.............................................................11
14. Interest............................................................12
15. Withholding.........................................................12
16. Tax Status..........................................................13
17. Entire Agreement....................................................13
18. Variation and Waiver................................................13
19. Assignment..........................................................13
20. The Master Issuer Security Trustee..................................13
21. Exclusion of Third Party Rights.....................................14
22. Counterparts........................................................14
23. Governing Law.......................................................14
24. Submission to Jurisdiction..........................................14
SCHEDULE
1. Form of Master Issuer Transaction Account Mandate...................15
2. Form of Notice of Assignment and Acknowledgement of Assignment......16
Part 1 Notice of Assignment - Master Issuer Accounts..............16
Part 2 Acknowledgement - Master Issuer Accounts...................18
Signatories..................................................................19
THIS AMENDED AND RESTATED MASTER ISSUER BANK ACCOUNT AGREEMENT (this AGREEMENT)
is made as a deed on 21 November 2007
BETWEEN:
(1) PERMANENT MASTER ISSUER PLC (registered number 5922774), a public
limited company incorporated under the laws of England and Wales,
whose registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX
(the MASTER ISSUER);
(2) BANK OF SCOTLAND PLC (registered number SC327000) (formerly The
Governor and Company of the Bank of Scotland), a public limited
company incorporated under the laws of Scotland whose registered
office is at Xxx Xxxxx, Xxxxxxxxx, XX0 0XX (acting in its capacities
as the MASTER ISSUER ACCOUNT BANK and the MASTER ISSUER CASH MANAGER);
and
(3) THE BANK OF NEW YORK, a New York banking corporation, acting through
its offices at Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (acting in its
capacity as the MASTER ISSUER SECURITY TRUSTEE , which expression
shall include such company and all other persons and companies for the
time being acting as security trustee under the Master Issuer Deed of
Charge).
WHEREAS:
(A) On the Reorganisation Date, pursuant to the HBOS Group Reorganisation
Xxx 0000, The Governor and Company of the Bank of Scotland was
registered as a public company under the Companies Xxx 0000 and
changed its name to Bank of Scotland plc and the business and all
property and liabilities of Halifax (including its rights and
obligations under the Master Issuer Bank Account Agreement) were
transferred to Bank of Scotland.
(B) The parties hereto have agreed to amend and restate the Master Issuer
Bank Account Agreement on the date hereof as set out herein.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated 21
November 2007 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and the amended and
restated master issuer master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated 21
November 2007 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this Agreement) (the
MASTER ISSUER MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) are
expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Master Definitions and
Construction Schedule and the Master Issuer Master Definitions and
Construction Schedule shall, except where the context otherwise
requires and save where otherwise defined herein, have the same
meanings in this Agreement, and this Agreement shall be construed in
accordance with the interpretation provisions set out in clause 3 of
the Master Definitions and Construction Schedule and in Clause 3 of
the Master Issuer Master Definitions and Construction Schedule.
1.2 This Agreement amends and restates the Master Issuer Bank Account
Agreement dated 16 October 2006 (the PRINCIPAL AGREEMENT). As of the
date of this Agreement, any future rights or obligations (excluding
such rights and obligations accrued to the date of this Agreement) of
a party to the Principal Agreement shall be extinguished and shall
instead be governed by this Agreement.
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2. THE MASTER ISSUER TRANSACTION ACCOUNT
2.1 INSTRUCTIONS FROM MASTER ISSUER CASH MANAGER TO MASTER ISSUER ACCOUNT
BANK
Subject to Clause 7.3, the Master Issuer Account Bank shall comply
with any direction of the Master Issuer Cash Manager to effect a
payment by debiting the Master Issuer Transaction Account if such
direction (a) is in writing, is given by telephone and confirmed in
writing not later than close of business on the day on which such
direction is given or is given by the internet banking service
provided by the Master Issuer Account Bank or otherwise (b) complies
with the Master Issuer Transaction Account Mandate.
2.2 TIMING OF PAYMENT
The Master Issuer Account Bank agrees that if directed pursuant to
Clause 2.1 to make any payment, then, subject to Clauses 2.4 and 7.3
below, it will do so prior to close of business on the London Business
Day on which such direction is received and for value that day,
provided that, if any direction is received later than 2.30 p.m.
(London time) or, in the case of a payment to another account with the
Master Issuer Account Bank at the same branch, 4.00 p.m. (London time)
on any London Business Day, the Master Issuer Account Bank shall make
such payment at the commencement of business on the following London
Business Day for value that day.
2.3 MASTER ISSUER TRANSACTION ACCOUNT CHARGES
The charges of the Master Issuer Account Bank for the operation of the
Master Issuer Transaction Account shall be debited to the Master
Issuer Transaction Account only on the first day of each month (or, if
such day is not a London Business Day, the next succeeding London
Business Day) in accordance with the order of priority set out in the
Master Issuer Cash Management Agreement, or, following the service of
a Note Acceleration Notice (that is not withdrawn), the Master Issuer
Deed of Charge, and the Master Issuer by its execution hereof
irrevocably agrees that this shall be done. The charges shall be
payable at the same rates as are generally applicable to the business
customers of the Master Issuer Account Bank.
2.4 NO OVERDRAWN BALANCE
Notwithstanding the provisions of Clause 2.1, amounts shall only be
withdrawn from the Master Issuer Transaction Account to the extent
that such withdrawal does not cause the Master Issuer Transaction
Account to become overdrawn.
3. ADDITIONAL MASTER ISSUER ACCOUNTS
3.1 TERMINATION OF MASTER ISSUER SWAPS
If any or all of the Master Issuer Swap Agreements terminate and the
Master Issuer is unable to enter into replacement hedging
arrangements, the Master Issuer shall instruct the Master Issuer Cash
Manager to open, as necessary, the relevant Additional Master Issuer
Account at the Master Issuer Account Bank. The Master Issuer shall
deliver a mandate to the Master Issuer Account Bank relating to such
Additional Master Issuer Account in accordance with this Agreement and
the Master Issuer Deed of Charge.
3.2 OPERATION OF ADDITIONAL MASTER ISSUER ACCOUNTS
In the event that an Additional Master Issuer Account is created
pursuant to Clause 3.1, the relevant account shall be operated in
accordance with the following provisions:
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(a) subject to Clause 7.3, the Master Issuer Account Bank shall
comply with any direction of the Master Issuer Cash Manager to
effect a payment by debiting the relevant Additional Master
Issuer Account if such direction (i) is in writing or is given
by the internet banking service provided by the Master Issuer
Account Bank or otherwise (ii) complies with the mandates of
such Additional Master Issuer Account;
(b) the Master Issuer Account Bank shall be entitled to rely on
any direction given by telephone which, in its opinion (acting
reasonably and in good faith), purports to be given by any
Authorised Signatory referred to in the mandates of the
relevant Additional Master Issuer Account, from time to time
and in respect of which the person giving the direction quotes
a code reference notified in writing by the Master Issuer Cash
Manager from time to time to the Master Issuer Account Bank
and no delay in giving (or the absence of giving) the written
confirmation of any such direction shall affect the validity
of, or time of giving, the relevant telephone direction;
(c) the Master Issuer Account Bank agrees that if directed
pursuant to Clause 3.2(a) to make any payment then, subject to
Clauses 3.2(e) and 7.3 below, it will do so prior to close of
business on the London Business Day on which such direction is
received and for value that day, provided that, if any
direction is received later than 2.30 p.m. (London time) or,
in the case of a payment to another account with the Master
Issuer Account Bank at the same branch, 4.00 p.m. (London
time) on any London Business Day, the Master Issuer Account
Bank shall make such payment at the commencement of business
on the following London Business Day for value that day;
(d) the charges of the Master Issuer Account Bank for the
operation of the Additional Master Issuer Accounts (if
established) shall be debited to the relevant Additional
Master Issuer Account on each Interest Payment Date in
accordance with the order of priority set out in the Master
Issuer Cash Management Agreement or following enforcement of
the Master Issuer Security, the Master Issuer Deed of Charge,
and the Master Issuer by its execution hereof irrevocably
agrees that this shall be done. The charges shall be payable
at the same rates as are generally applicable to the business
customers of the Master Issuer Account Bank; and
(e) notwithstanding the provisions of Clause 3.2(a), and subject
to the Master Issuer Deed of Charge, amounts shall only be
withdrawn from an Additional Master Issuer Account to the
extent that such withdrawals do not cause that Additional
Master Issuer Account to become overdrawn.
3.3 MASTER ISSUER SWAP COLLATERAL ACCOUNT
In the event that any collateral is posted by a Master Issuer Currency
Swap Provider pursuant to a Master Issuer Currency Swap Agreement, the
Master Issuer shall instruct the Master Issuer Cash Manager to open a
bank account (which, for the avoidance of doubt, shall include any
Master Issuer Swap Collateral Securities Account) with Bank of
Scotland, Treasury Division, for the purposes of holding such
collateral (any such account, a MASTER ISSUER SWAP COLLATERAL
ACCOUNT). A Master Issuer Swap Collateral Account shall be opened in
respect of each Master Issuer Currency Swap Provider that is required
to post collateral pursuant to a Master Issuer Currency Swap
Agreement. In the event that any such Master Issuer Currency Swap
Account is opened with Bank of Scotland, Treasury Division, the
parties to this Agreement, not including the Master Issuer Account
Bank, will enter into an agreement on substantially the same terms as
this Agreement (with such amendments as shall be deemed necessary) in
respect of such Master Issuer Swap Collateral Account.
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4. PAYMENTS
4.1 INSTRUCTIONS FROM THE MASTER ISSUER CASH MANAGER
(a) The Master Issuer Cash Manager shall, before the date upon which any
payment is due to be made from a Master Issuer Account (including the
payments due to be made on each Interest Payment Date), submit to the
Master Issuer Account Bank irrevocable written instructions, or
instructions by way of the internet banking service provided by the
Master Issuer Account Bank, as to the payments to be made out of the
relevant Master Issuer Account on such date.
(b) The Master Issuer Account Bank shall comply with the instructions
described in Clause 4.1(a) and shall effect the payments specified in
such instructions not later than the time specified for payment
therein (provided that the Master Issuer Account Bank shall not have
any liability to any person if it fails to effect timely payment by
reason of strike, computer failure, power cut or other matters beyond
its control) on the relevant date if the instructions comply with the
relevant Master Issuer Account Mandate.
5. MANDATES AND STATEMENTS
5.1 SIGNING AND DELIVERY OF MANDATES
The Master Issuer has delivered to the Master Issuer Account Bank
prior to the Programme Date the Master Issuer Transaction Account
Mandate in or substantially in the form set out in Schedule 1 hereto
duly executed and relating to the Master Issuer Transaction Account,
and the Master Issuer Account Bank hereby confirms to the Master
Issuer Security Trustee that the Master Issuer Transaction Account
Mandate has been provided to it, that the Master Issuer Transaction
Account is open and that the Master Issuer Transaction Account Mandate
is operative. The Master Issuer agrees that, if an Additional Master
Issuer Account is opened pursuant to Clause 3.1 or a Master Issuer
Swap Collateral Account is opened pursuant to Clause 3.3, it will
deliver to the Master Issuer Account Bank a duly executed mandate
relating to such Additional Master Issuer Account or, as the case may
be, Master Issuer Swap Collateral Account. The Master Issuer Account
Bank acknowledges that the Master Issuer Transaction Account Mandate
and any other mandates delivered from time to time pursuant hereto
shall be subject to the terms of the Master Issuer Deed of Charge and
this Agreement.
5.2 AMENDMENT OR REVOCATION
The Master Issuer Account Bank agrees that it shall notify the Master
Issuer Security Trustee as soon as is reasonably practicable and in
accordance with Clause 13 if it receives any amendment to or
revocation of any Master Issuer Account Mandate that it holds (other
than a change of Authorised Signatory) and shall require the prior
written consent of the Master Issuer Security Trustee to any such
amendment or revocation (other than a change of Authorised Signatory),
but, unless a Master Issuer Account Mandate is revoked, the Master
Issuer Account Bank may continue to comply with that amended Master
Issuer Account Mandate (as it may from time to time be amended in
accordance with the provisions of this Clause 5.2) unless it receives
notice in writing from the Master Issuer Security Trustee to the
effect that a Note Acceleration Notice has been served or that the
appointment of Bank of Scotland as Master Issuer Cash Manager under
the Master Issuer Cash Management Agreement has been terminated and
shall, thereafter, act solely on the instructions of the Master Issuer
Security Trustee and in accordance with the terms thereof as provided
in Clause 7.3 of this Agreement.
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6. ACKNOWLEDGEMENT BY THE MASTER ISSUER ACCOUNT BANK
6.1 RESTRICTION ON MASTER ISSUER ACCOUNT BANK'S RIGHTS
Notwithstanding anything to the contrary in any Master Issuer Account
Mandate, the Master Issuer Account Bank hereby:
(a) waives any right it has or may hereafter acquire to combine,
consolidate or merge any Master Issuer Account with any other
account of the Master Issuer Cash Manager, the Master Issuer,
the Mortgages Trustee, Funding 2, the Seller, the Master
Issuer Security Trustee or any other person or any liabilities
of the Master Issuer Cash Manager, the Master Issuer, the
Mortgages Trustee, Funding 2, the Seller, the Master Issuer
Security Trustee or any other person owing to it;
(b) agrees that it may not exercise any lien or, to the extent
permitted by law, any set-off or transfer any sum standing to
the credit of or to be credited to any Master Issuer Account
in or towards satisfaction of any liabilities of the Master
Issuer Cash Manager, the Master Issuer, the Mortgages Trustee,
Funding 2, the Seller, the Master Issuer Security Trustee or
any other person owing to it;
(c) in addition to and without prejudice to its rights and
obligations as a Master Issuer Secured Creditor, agrees that
it will not take, and shall not take, any steps whatsoever to
recover any amount due or owing to it pursuant to this
Agreement or any other debts whatsoever owing to it by the
Master Issuer, or procure the winding-up or liquidation of the
Master Issuer or the making of an administration order in
relation to the Master Issuer or the filing of documents with
the court in relation to the Master Issuer or the service of a
notice of intention to appoint an administrator in relation to
the Master Issuer in respect of any of the liabilities of the
Master Issuer whatsoever other than to the extent expressly
permitted under the Master Issuer Deed of Charge;
(d) agrees that it shall have recourse only to sums paid to or
received by (or on behalf of) the Master Issuer pursuant to
the Transaction Documents, subject always to and in accordance
with the order of priority set out in the Master Issuer Cash
Management Agreement or, as applicable, the Master Issuer Deed
of Charge;
(e) agrees that it will notify, in accordance with Clause 13, the
Master Issuer Cash Manager, the Master Issuer and the Master
Issuer Security Trustee if compliance with any instruction
would cause any Master Issuer Account to have a negative
balance, such notification to be given on the same London
Business Day that it determines that compliance with such
instruction would cause any such account to have a negative
balance; and
(f) acknowledges that the Master Issuer has, pursuant to the
Master Issuer Deed of Charge, inter alia, assigned by way of
security all its rights, title, interest and benefit, present
and future, in and to all sums from time to time standing to
the credit of the Master Issuer Accounts and all of its rights
under this Agreement to the Master Issuer Security Trustee.
6.2 NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT
The Master Issuer Account Bank agrees that promptly upon receipt of a
notice of assignment signed by the Master Issuer in (or substantially
in) the form of notice set out in Part 1 of Schedule 2 hereto, the
Master Issuer Account Bank shall sign and duly return to the Master
Issuer, with a copy to the Master Issuer Security Trustee, an
acknowledgement in (or substantially in) the form of acknowledgement
set out in Part 2 of Schedule 2.
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6.3 MONTHLY STATEMENT
Unless and until directed otherwise by the Master Issuer Security
Trustee in accordance with Clause 13, the Master Issuer Account Bank
shall provide the Master Issuer Cash Manager with a written statement
setting out the amounts standing to the credit of the Master Issuer
Accounts as at the close of business on the London Business Day
immediately preceding the relevant statement date or such other
relevant date set out in a statement request (a) on a monthly basis
and, in any event, within three London Business Days of the relevant
statement date and (b) as soon as reasonably practicable after receipt
of a request for a statement. The Master Issuer Account Bank is hereby
authorised by the Master Issuer to provide statements in respect of
the Master Issuer Accounts to the Master Issuer Cash Manager and the
Master Issuer Security Trustee.
7. CERTIFICATION, INDEMNITY AND ACCELERATION NOTICE
7.1 MASTER ISSUER ACCOUNT BANK TO COMPLY WITH MASTER ISSUER CASH MANAGER'S
INSTRUCTIONS
Unless otherwise directed in writing by the Master Issuer Security
Trustee pursuant to Clause 7.3, in making any transfer or payment from
the Master Issuer Accounts in accordance with this Agreement, the
Master Issuer Account Bank shall be entitled to act as directed by the
Master Issuer Cash Manager pursuant to Clauses 2.1 and 4.1 or pursuant
to Clause 3.1, as the case may be, and to rely as to the amount of any
such transfer or payment on the Master Issuer Cash Manager's
instructions in accordance with the relevant Master Issuer Account
Mandate, and the Master Issuer Account Bank shall have no liability to
the Master Issuer Cash Manager, the Master Issuer or the Master Issuer
Security Trustee for having acted on such instructions except in the
case of its wilful default, fraud or negligence.
7.2 MASTER ISSUER'S INDEMNITY
Subject to the priority of payments set out in the Master Issuer Cash
Management Agreement or the Master Issuer Deed of Charge, as the case
may be, the Master Issuer shall indemnify the Master Issuer Account
Bank or, pursuant to Clause 7.3, the Master Issuer Security Trustee,
as the case may be, to the extent of funds then standing to the credit
of the relevant Master Issuer Account against any loss, cost, damage,
charge or expense incurred by the Master Issuer Account Bank or the
Master Issuer Security Trustee, as the case may be, in complying with
any instruction delivered pursuant to and in accordance with this
Agreement, save that this indemnity shall not extend to:
(a) the charges of the Master Issuer Account Bank (if any) for the
operation of the Master Issuer Accounts other than as provided
in this Agreement; and
(b) any loss, cost, damage, charge or expense arising from any
breach by the Master Issuer Account Bank of its obligations
under this Agreement.
7.3 CONSEQUENCES OF A MASTER INTERCOMPANY LOAN ACCELERATION NOTICE OR A
NOTE ACCELERATION NOTICE
The Master Issuer Account Bank acknowledges that if it receives notice
in writing from the Master Issuer Security Trustee to the effect that
(a) the Master Issuer Security Trustee has served a Master
Intercompany Loan Acceleration Notice, (b) the Note Trustee has served
a Note Acceleration Notice or (c) the appointment of Bank of Scotland
as Master Issuer Cash Manager under the Master Issuer Cash Management
Agreement has been terminated (but without prejudice to Clause 7.1
above), then all right, authority and power of the Master Issuer Cash
Manager in respect of the Master Issuer Accounts shall be terminated
and be of no further effect, and the Master Issuer Account Bank agrees
that it shall, upon receipt of such notice from the Master Issuer
Security Trustee, comply with the directions of the Master Issuer
Security Trustee or any successor cash manager appointed by the
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Master Issuer Security Trustee (subject to such successor cash manager
having entered into an agreement with the Master Issuer Account Bank
on substantially the same terms as this Agreement) in relation to the
operation of the Master Issuer Accounts.
8. CHANGE OF MASTER ISSUER SECURITY TRUSTEE OR MASTER ISSUER ACCOUNT BANK
8.1 CHANGE OF MASTER ISSUER SECURITY TRUSTEE
In the event that there is any change in the identity of the Master
Issuer Security Trustee or an additional Master Issuer Security
Trustee is appointed in accordance with the provisions of the Master
Issuer Deed of Charge, the existing Master Issuer Security Trustee,
the new Master Issuer Security Trustee or the retiring Master Issuer
Security Trustee, as the case may be, the Master Issuer Cash Manager,
the Master Issuer and the Master Issuer Account Bank shall execute
such documents and take such actions as such of the existing Master
Issuer Security Trustee, the new Master Issuer Security Trustee or the
retiring Master Issuer Security Trustee, as the case may be, shall
agree are reasonably necessary for the purpose of vesting in such new
Master Issuer Security Trustee the rights, benefits and obligations of
the Master Issuer Security Trustee under this Agreement and under the
Master Issuer Deed of Charge and, if relevant, releasing the retiring
Master Issuer Security Trustee from its future obligations hereunder
and thereunder.
8.2 CHANGE OF ACCOUNT BANK
If there is any change in the identity of the Master Issuer Account
Bank, then the Master Issuer Cash Manager, the Master Issuer, the
Master Issuer Security Trustee and any other existing Master Issuer
Account Bank shall execute such documents and take such actions as the
new Master Issuer Account Bank, the retiring Master Issuer Account
Bank and the Master Issuer Security Trustee may require for the
purpose of vesting in the new Master Issuer Account Bank the rights
and obligations of the retiring Master Issuer Account Bank and
releasing the outgoing Master Issuer Account Bank from its future
obligations under this Agreement.
9. TERMINATION
9.1 TERMINATION EVENTS
The Master Issuer Cash Manager or the Master Issuer:
(a) shall (with the prior written consent of the Master Issuer
Security Trustee) terminate this Agreement and close the
Master Issuer Accounts in the event any of the matters
specified in paragraphs 9.1(b)(ii) to 9.1(b)(iv) below occur;
and
(b) may (with the prior written consent of the Master Issuer
Security Trustee) terminate this Agreement and close the
Master Issuer Accounts in the event any of the matters
specified in paragraphs 9.1(b)(i) or 9.1(b)(vi) below occur,
in each case, by serving a written notice of termination on the Master
Issuer Account Bank in the following circumstances:
(i) a deduction or withholding for or on account of any
Tax is imposed, or it appears likely that such a
deduction or withholding will be imposed, in respect
of the interest payable on any of the Master Issuer
Accounts held with it; or
(ii) the short-term, unsecured, unsubordinated and
unguaranteed debt obligations of the Master Issuer
Account Bank cease to have a rating of at least P-1
from Xxxxx'x, X-
0
0 from S&P or F1 from Fitch, as the case may be,
unless each rating agency confirms that its
then-current rating of the Notes would not be
adversely affected as a result of such ratings falling
below these minimum ratings; or
(iii) the Master Issuer Account Bank, otherwise than for the
purposes of such amalgamation or reconstruction as is
referred to in paragraph 9.1(b)(iv) below, ceases or,
through an authorised action of the board of directors
of the Master Issuer Account Bank, threatens to cease
to carry on all or substantially all of its business
or is deemed unable to pay its debts as and when they
fall due within the meaning of section 123(1)(a) of
the Insolvency Xxx 0000 (on the basis that the
reference in such section to [POUND]750 was read as a
reference to [POUND]10 million), sections 123(1)(b),
(c), (d) and (e) (on the basis that the words "for a
sum exceeding [POUND]10 million" were inserted after
the words "extract registered bond" and "extract
registered protest") and section 123(2) of the
Insolvency Xxx 0000 (as that Section may be amended)
or ceases to be an appropriately authorised
institution under the Financial Services and Markets
Xxx 0000; or
(iv) an order is made or an effective resolution is passed
for the winding-up of the Master Issuer Account Bank
except a winding-up for the purposes of or pursuant to
a solvent amalgamation or reconstruction the terms of
which have previously been approved in writing by the
Master Issuer Security Trustee (such approval not to
be unreasonably withheld or delayed);
(v) proceedings are initiated against the Master Issuer
Account Bank under any applicable liquidation,
insolvency, bankruptcy, composition, reorganisation
(other than a reorganisation where the Master Issuer
Account Bank is solvent) or other similar laws
(including, but not limited to, presentation of a
petition for an administration order, the filing of
documents with the court for the appointment of an
administrator or the service of a notice of intention
to appoint an administrator) and (except in the case
of presentation of a petition for an administration
order, the filing of documents with the court for the
appointment of an administrator or the service of a
notice of intention to appoint an administrator) such
proceedings are not, in the reasonable opinion of the
Master Issuer Security Trustee, being disputed in good
faith with a reasonable prospect of success or an
administration order is granted or the appointment of
an administrator takes effect or an administrative
receiver or other receiver, liquidator, trustee in
sequestration or other similar official is appointed
in relation to the Master Issuer Account Bank or in
relation to the whole or any substantial part of the
undertaking or assets of the Master Issuer Account
Bank, or an encumbrancer takes possession of the whole
or any substantial part of the undertaking or assets
of the Master Issuer Account Bank, or a distress,
execution or diligence or other process shall be
levied or enforced upon or sued out against the whole
or any substantial part of the undertaking or assets
of the Master Issuer Account Bank and such possession
or process (as the case may be) is not discharged or
otherwise ceases to apply within 30 days of its
commencement, or the Master Issuer Account Bank
initiates or consents to judicial proceedings relating
to itself under applicable liquidation, insolvency,
bankruptcy, composition, reorganisation or other
similar laws or makes a conveyance or assignment or
assignation for the benefit of its creditors generally
or takes steps with a view to obtaining a moratorium
in respect of any of indebtedness; or
(vi) the Master Issuer Account Bank fails to perform any of
its obligations under this Agreement and such failure
remains unremedied for three London Business Days
8
after the Master Issuer Cash Manager or the Master
Issuer Security Trustee, as the case may be, has given
notice of such failure.
In the event of a termination as a result of the circumstances
outlined in (b)(ii) above, the Master Issuer Account Bank shall
reimburse the Master Issuer 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,
an orderly transition of the banking arrangements documented hereby.
9.2 TERMINATION OPTION
The Master Issuer and the Master Issuer Security Trustee, upon a
breach by the Master Issuer Account Bank of its obligations under this
Agreement, may, by giving one month's prior written notice to the
Master Issuer Account Bank (with a copy to the Master Issuer Security
Trustee), terminate the appointment of the Master Issuer Account Bank,
provided that:
(a) such termination shall not be effective until a replacement
financial institution or institutions (in each case (i) with a
short-term unsecured, unsubordinated and unguaranteed debt
obligation rating of at least P-1 in the case of Moody's, A-1
in the case of S&P and F1 in the case of Fitch and (ii) being
an authorised institution under the Financial Services and
Markets Act 2000) shall have entered into an agreement in form
and substance similar to this Agreement; and
(b) such termination would not adversely affect the then-current
ratings of the Notes.
The Master Issuer Cash Manager and the Master Issuer shall use
reasonable endeavours to agree such terms with such a replacement
financial institution or institutions within 60 days of the date of
the notice. In the event of such termination, the Master Issuer
Account Bank shall assist the other parties hereto to effect an
orderly transition of the banking arrangements documented hereby, and
the Master Issuer shall reimburse the Master Issuer Account Bank for
its reasonable costs and any amounts in respect of Irrecoverable VAT
thereon (including reasonable costs and expenses) incurred during the
period of, and until completion of, such transition.
9.3 NOTIFICATION OF TERMINATION EVENT
Each of the Master Issuer, the Master Issuer Cash Manager and the
Master Issuer Account Bank undertakes and agrees to notify the Master
Issuer Security Trustee in accordance with Clause 13 promptly upon
becoming aware thereof of any event which would or could entitle the
Master Issuer Security Trustee to serve a notice of termination
pursuant to Clauses 9.2 to 9.4 (inclusive).
9.4 TERMINATION BY MASTER ISSUER SECURITY TRUSTEE
In addition, prior to the service of a Master Intercompany Loan
Acceleration Notice or a Note Acceleration Notice, the Master Issuer
Security Trustee may terminate this Agreement and close the Master
Issuer Accounts by serving a notice of termination if any of the
events specified in Clause 9.1(b)(i) to (vi) (inclusive) of this
Agreement occurs in relation to the Master Issuer Account Bank.
Following the service of a Master Intercompany Loan Acceleration
Notice or a Note Acceleration Notice, the Master Issuer Security
Trustee may serve a notice of termination at any time.
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9.5 AUTOMATIC TERMINATION
This Agreement shall automatically terminate (if not terminated
earlier pursuant to this Clause 9) on the date falling 90 days after
all Master Issuer Secured Liabilities have been irrevocably discharged
in full.
9.6 TERMINATION BY MASTER ISSUER ACCOUNT BANK
The Master Issuer Account Bank may terminate this Agreement and cease
to operate the Master Issuer Accounts at any time:
(a) on giving not less than six months' prior written notice
thereof ending on any London Business Day which does not fall
on either an Interest Payment Date or less than ten London
Business Days before an Interest Payment Date to each of the
other parties hereto without assigning any reason therefor;
and
(b) on giving not less than three months' prior written notice
thereof ending on any London Business Day which does not fall
on either an Interest Payment Date or less than ten London
Business Days before an Interest Payment Date to each of the
other parties hereto, if the Master Issuer Account Bank shall
have demanded payment of its due charges or any interest and
the same shall have remained unpaid for a period of one month
(provided that if the relevant amounts have been paid on or
before the date six weeks after the date of delivery of such
notice, the notice shall have no effect),
provided that such termination shall not take effect:
(i) until a replacement financial institution or
institutions (in each case, (A) with a short-term
unsecured, unsubordinated and unguaranteed debt
obligation rating of at least P-1 in the case of
Moody's, A-1 in the case of S&P and F1 in the case of
Fitch and (B) being an authorised institution under
the Financial Services and Markets Act 2000) shall
have entered into an agreement in form and substance
similar to this Agreement; and
(ii) if the then-current ratings of the Notes would be
adversely affected thereby.
In either case the Master Issuer Account Bank shall not be responsible
for any costs or expenses occasioned by such termination and
cessation. In the event of such termination and cessation, the Master
Issuer Account Bank shall assist the other parties hereto to effect an
orderly transition of the banking arrangements documented hereby.
10. FURTHER ASSURANCE
The parties hereto agree that they will co-operate fully to do all
such further acts and things and execute any further documents as may
be necessary or reasonably desirable to give full effect to the
arrangements contemplated by this Agreement.
11. CONFIDENTIALITY
During the continuance of this Agreement or after its termination,
each of the Master Issuer, the Master Issuer Account Bank, the Master
Issuer Cash Manager and the Master Issuer Security Trustee shall use
its best endeavours not to disclose to any person, firm or company any
information relating to the business, finances or other matters of a
confidential nature of any other party to this Agreement of which it
may exclusively by virtue of being party to the Transaction Documents
have
10
become possessed and shall use all reasonable endeavours to prevent
any such disclosure as aforesaid; PROVIDED, HOWEVER, THAT the
provisions of this Clause 11 shall not apply:
(a) to any information already known to the recipient otherwise
than as a result of entering into any of the Transaction
Documents;
(b) to any information subsequently received by the recipient that
it would otherwise be free to disclose;
(c) to any information that is or becomes public knowledge
otherwise than as a result of the conduct of the recipient;
(d) to any extent that the recipient is required to disclose the
same pursuant to any law or order of any court of competent
jurisdiction or pursuant to any direction, request or
requirement (whether or not having the force of law) of any
central bank or any governmental or other authority
(including, without limitation, any official bank examiners or
regulators);
(e) to the extent that the recipient needs to disclose the same
for determining the existence of, or declaring, a Note Event
of Default, determining the existence of an event described in
Clause 9.1 above, to the extent that the recipient seeks the
protection or enforcement of any of its rights under any of
the Transaction Documents or in connection therewith or for
the purpose of discharging, in such manner as it thinks fit,
its duties under or in connection with such agreements, in
each case to such persons as require to be informed of such
information for such purposes; or
(f) in relation to any information disclosed to professional
advisers of the recipient or (in connection with a prospective
rating of any debt to be issued by the Master Issuer) to any
Rating Agency or any prospective new cash manager, account
bank or Master Issuer Security Trustee.
12. COSTS
The Master Issuer agrees to pay the reasonable costs and any amounts
in respect of Irrecoverable VAT thereon (including reasonable legal
costs and expenses) of the Master Issuer Account Bank in connection
with the negotiation of this Agreement and the establishment of the
Master Issuer Accounts respectively and the negotiation and execution
of any further documents and the taking of any further action to be
executed or taken pursuant to Clauses 8, 9 (other than Clauses
9.1(b)(ii), 9.1(b)(iii), 9.1(b)(iv), 9.1(b)(iv), 9.1(b)(vi), 9.5 and
9.6(a)) and 10.
13. NOTICES
Any notices to be given pursuant to this Agreement to any of the
parties hereto shall be sufficiently served if sent by prepaid first
class post, by hand or facsimile transmission and shall be deemed to
be given (in the case of facsimile transmission) when despatched,
(where delivered by hand) on the day of delivery if delivered before
5.00 p.m. (London time) on a London Business Day or on the next London
Business Day if delivered thereafter or on a day which is not a London
Business Day or (in the case of first class post) when it would be
received in the ordinary course of the post and shall be sent:
(a) in the case of the Master Issuer Cash Manager, to Bank of
Scotland plc, Halifax Division, Xxxxx 0, Xxxxxx Xxxx, 0 Xxxxxx
Xxxx Xxxx, Xxxxx XX0 0XX (facsimile number
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x00 (0) 000 000 0000) for the attention of the Head of Mortgage
Securitisation with a copy to Bank of Scotland plc, Treasury Division,
00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0)20 7574
8303) for the attention of Head of Mortgage Securitisation and Covered
Bonds;
(b) in the case of the Master Issuer, to Permanent Master Issuer
PLC, 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (facsimile number
x00 (0)00 0000 0000) for the attention of the Directors, with
a copy to Bank of Scotland plc, Treasury Division, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0)20 7574
8303) for the attention of Head of Mortgage Securitisation and
Covered Bonds;
(c) in the case of the Master Issuer Security Trustee, to The Bank
of Xxx Xxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile
number x00 (0)00 0000 0000) for the attention of Corporate
Trust Administration - ABS/MBS; and
(d) in the case of the Master Issuer Account Bank, to Bank of
Scotland plc, Leeds Business Centre, 000 Xxxxxxxxxx Xxxxxx,
Xxxxx, XX0 0XX (facsimile number x00 (0)000 000 0000) for the
attention of the Corporate Banking Channel Support with copies
to: Bank of Scotland plc, Halifax Division, Level 3, Lovell
Park, 0 Xxxxxx Xxxx Xxxx, Xxxxx XX0 0XX (facsimile number +44
(0) 113 235 7511) for the attention of the Head of Mortgage
Securitisation; and Bank of Scotland plc, Treasury Division,
00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44
(0)00 0000 0000) for the attention of Head of Mortgage
Securitisation and Covered Bonds.
14. INTEREST
14.1 The Master Issuer Account Bank shall pay, on the last Business Day of
each month in respect of the current month, interest on any cleared
credit balances on the Master Issuer Transaction Account at a rate of
Sterling-LIBOR for three-month sterling deposits in respect of the
then current Funding 2 Interest Period less 0.25% per annum.
14.2 Any Additional Master Issuer Account or Master Issuer Swap Collateral
Account opened with the Master Issuer Account Bank or any other bank
shall be an interest bearing account.
15. WITHHOLDING
All payments by the Master Issuer Account Bank under this Agreement
shall be made in full without any deduction or withholding (whether in
respect of set-off, counterclaim, duties, Taxes, charges or otherwise
whatsoever) unless the deduction or withholding is required by law, in
which event the Master Issuer Account Bank shall:
(a) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(b) pay to the relevant taxation or other authorities within the
period for payment permitted by applicable law the full amount
of the deduction or withholding;
(c) furnish to the Master Issuer or the Master Issuer Security
Trustee (as the case may be) within the period for payment
permitted by the relevant law, either:
(i) an official receipt of the relevant taxation
authorities involved in respect of all amounts so
deducted or withheld; or
(ii) if such receipts are not issued by the taxation
authorities concerned on payment to them of amounts so
deducted or withheld, a certificate of deduction or
equivalent evidence of the relevant deduction or
withholding; and
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(d) account to the Master Issuer in full by credit to the relevant
Master Issuer Account of an amount equal to the amount of any
rebate, repayment or reimbursement of any deduction or
withholding which the Master Issuer Account Bank has made
pursuant to this Clause 15 and which is subsequently received
by the Master Issuer Account Bank.
16. TAX STATUS
16.1 The Master Issuer Account Bank hereby represents and warrants that it
is a bank for the purposes of section 991 of the Income Tax 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 undertakes that it will not cease to be so or to do
so otherwise than as a result of the introduction of, change in, or
change in the interpretation, administration or application of, any
law or regulation or any practice or concession of HM Revenue and
Customs occurring after the date of this Agreement.
16.2 The Master Issuer Account Bank will procure that any of its successors
or assigns will provide the same representation as to its Tax status
as is provided by the Master Issuer Account Bank in Clause 16.1 above.
17. ENTIRE AGREEMENT
This Agreement and the schedules together constitute the entire
agreement and understanding between the parties in relation to the
subject matter hereof and cancel and replace any other agreement or
understanding in relation thereto.
18. VARIATION AND WAIVER
No variation, waiver or novation of this Agreement or any provision(s)
of this Agreement shall be effective unless it is in writing and
executed by (or by some person duly authorised by) each of the parties
hereto. No single or partial exercise of, or failure or delay in
exercising, any right under this Agreement shall constitute a waiver
or preclude any other or further exercise of that or any other right.
19. ASSIGNMENT
Subject as provided in or contemplated by Clauses 6.1(f) and 8.2:
(a) the Master Issuer Account Bank may not assign or transfer any
of its rights or obligations hereunder without the prior
written consent of the Master Issuer and the Master Issuer
Security Trustee; and
(b) the Master Issuer may not assign or transfer any of its rights
or obligations hereunder without the prior written consent of
the Master Issuer Account Bank and the Master Issuer Security
Trustee, except that the Master Issuer may assign its rights
hereunder without such consent pursuant to the Master Issuer
Deed of Charge.
20. THE MASTER ISSUER SECURITY TRUSTEE
The Master Issuer Security Trustee has agreed to become a party to
this Agreement for the better preservation and enforcement of its
rights under this Agreement but shall have no responsibility for any
of the obligations of, nor assume any liabilities to, the Master
Issuer Cash Manager, the Master Issuer Account Bank or the Master
Issuer hereunder. Furthermore, any liberty or power which may be
exercised or made in the Master Issuer Security Trustee's absolute
discretion without any
13
obligation to give reasons therefor, but shall in any event be
exercised in accordance with the provisions of the Master Issuer Deed
of Charge.
21. EXCLUSION OF THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of
this Agreement, but this does not affect any right or remedy of a
third party which exists or is available apart from that Act.
22. COUNTERPARTS
This Agreement may be signed (manually or by facsimile) and delivered
in one or more counterparts, all of which, taken together, shall
constitute one and the same document.
23. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England and Wales.
24. SUBMISSION TO JURISDICTION
Each party to this Agreement hereby irrevocably submits to the
exclusive jurisdiction of the English courts in any action or
proceeding arising out of or relating to this Agreement, and hereby
irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined by such courts. Each party to
this Agreement hereby irrevocably waives, to the fullest extent it may
possibly do so, any defence or claim that the English courts are an
inconvenient forum for the maintenance or hearing of such action or
proceeding.
IN WITNESS whereof the parties hereto have executed and delivered this
Agreement as a deed the day and year first before written.
14
SCHEDULE 1
FORM OF MASTER ISSUER TRANSACTION ACCOUNT MANDATE
15
SCHEDULE 2
FORM OF NOTICE OF ASSIGNMENT AND ACKNOWLEDGEMENT OF ASSIGNMENT
PART 1
NOTICE OF ASSIGNMENT - MASTER ISSUER ACCOUNTS
To: The Governor and Company of the Bank of Scotland
000 Xxxxxxxxxx Xxxxxx
Xxxxx
XX0 0XX
For the attention of: Company Secretary
With a copy to: The Bank of New York
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx
X00 0XX
For the attention of: Global Structured Finance - Corporate Trust
Date: 17 October 2006
Dear Sirs,
RE: PERMANENT MASTER ISSUER PLC
We hereby give you notice that, by a deed of charge dated of even date herewith
and made between, inter alios, ourselves, Halifax plc and The Bank of New York,
(the MASTER ISSUER SECURITY TRUSTEE), a copy of which is enclosed (the MASTER
ISSUER DEED OF CHARGE), we:
(a) charged by way of first fixed charge all of our rights in respect of
any amount standing from time to time to the credit of the Master
Issuer Transaction Account - account number 00000000 (sort code
12-08-83), all interest paid or payable in relation to those amounts
thereon from time to time and all debts represented by those amounts;
(b) charged by way of first fixed charge all of our rights in respect of
any amount standing form time to time to the credit of any Additional
Master Issuer Account established pursuant to clause 3.1 of the Master
Issuer Bank Account Agreement and all interest paid or payable in
relation to those amounts thereon from time to time;
(c) assigned (or to the extent not assignable charged) by way of first
fixed security all of our rights in respect of the Master Issuer Bank
Account Agreement of even date herewith between ourselves, yourselves,
the Master Issuer Security Trustee and Halifax plc in its capacity as
Master Issuer Cash Manager.
Accordingly, amounts may and shall be withdrawn from time to time from the
Master Issuer Transaction Account or any Additional Master Issuer Account
established pursuant to clause 3.1 of the Master Issuer Bank Account Agreement
in accordance with the provisions of the Master Issuer Cash Management
Agreement and the Master Issuer Deed of Charge until such time as you receive
notice in writing from the
16
Master Issuer Security Trustee in which case you shall thereafter comply with
all directions of the Master Issuer Security Trustee.
Please note that the foregoing authorisations and instructions may not be
revoked or varied by ourselves without the prior written consent of the Master
Issuer Security Trustee.
Please acknowledge receipt of this notice and your acceptance of the
instructions herein contained by signing two copies of the attached form of
acknowledgement, returning one copy to ourselves and sending the other copy
direct to the Master Issuer Security Trustee at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX for the attention of the Global Structured Finance-Corporate
Trust.
This notice of charge and assignment is governed by, and construed in
accordance with, the laws of England and Wales. Words defined in the Master
Issuer Master Definitions and Construction Schedule referred to in clause 1 of
the Master Issuer Deed of Charge shall have the same meaning in this notice.
Yours faithfully
..............................
for and on behalf of
PERMANENT MASTER ISSUER PLC
17
PART 2
ACKNOWLEDGEMENT - MASTER ISSUER ACCOUNTS
To: Permanent Master Issuer PLC
00 Xxxxx Xx. Xxxxx'x
Xxxxxx XX0X 0XX
For the attention of the Company Secretary
and to: The Bank of New York
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx
X00 0XX
(the MASTER ISSUER SECURITY TRUSTEE)
For the attention of Global Structured
Finance-Corporate Trust
Date: 17 October 2006
Dear Sir,
RE: PERMANENT MASTER ISSUER PLC
We acknowledge receipt of your letter dated 17 October 2006, a copy of which is
attached. Words and expressions defined in that letter have the same meanings
herein.
In consideration of your agreeing to maintain or establish the Master Issuer
Accounts with us, we now agree and confirm to the Master Issuer Security
Trustee that we accept and will comply with the authorisations and instructions
contained in that letter and will not accept or act upon any instructions
contrary thereto unless the same shall be in writing signed by the Master
Issuer Security Trustee.
This acknowledgement is governed by, and construed in accordance with, the laws
of England and Wales.
Yours faithfully,
..............................
for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
18
SIGNATORIES
MASTER ISSUER
EXECUTED as a DEED on behalf of )
PERMANENT MASTER ISSUER PLC
acting by
Director /s/ XXXXXXX XXXXXXX
Director ) /s/ XXXXXX XXXXXXXX
MASTER ISSUER CASH MANAGER AND MASTER ISSUER ACCOUNT BANK
EXECUTED as a DEED by )
BANK OF SCOTLAND PLC ) /s/ XXX XXXXXXX
acting by its attorney )
in the presence of: ) /s/ XXXXX XXXXXXXXX
Witness's signature: /s/ XXXXX XXXX
Name:
Address: XXXXX & OVERY LLP
XXXXXX
X00 0XX
MASTER ISSUER SECURITY TRUSTEE
EXECUTED as a DEED )
for and on behalf of ) /s/ XXXXXXX XXXXXX
THE BANK OF NEW YORK )
by its authorised signatory )
Authorised signatory )
Witness's signature: /s/ XXXXX XXXX
Name:
Address: XXXXX & XXXXX XXX
XXXXXX
X00 0XX
19
