AMENDED AND RESTATED FUNDING 2 GUARANTEED EXHIBIT 10.1
INVESTMENT CONTRACT
21 NOVEMBER 2007
PERMANENT FUNDING (NO. 2) LIMITED
AS FUNDING 2
AND
BANK OF SCOTLAND PLC
AS CASH MANAGER AND FUNDING 2 GIC PROVIDER
AND
THE BANK OF NEW YORK
AS FUNDING 2 SECURITY TRUSTEE
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.......................................1
2. The Funding 2 GIC Account............................................2
3. Interest.............................................................2
4. Withdrawals and Deposits.............................................2
5. Termination..........................................................2
6. Warranties...........................................................3
7. Assignment...........................................................3
8. Agency...............................................................3
9. Information..........................................................3
10. Modification.........................................................3
11. Payments and Withholdings............................................4
12. Notices..............................................................4
13. Counterparts and Severability........................................4
14. The Funding 2 Security Trustee.......................................5
15. Amendments...........................................................5
16. Exclusion of Third Party Rights......................................5
17. Governing Law........................................................5
18. Submission to Jurisdiction...........................................5
Signatories...................................................................6
THIS AMENDED AND RESTATED FUNDING 2 GUARANTEED INVESTMENT CONTRACT (this
AGREEMENT) is made as a deed on 21 November 2007
BETWEEN:
(1) PERMANENT FUNDING (NO. 2) LIMITED (registered number 4441772), a
private limited company incorporated under the laws of England and
Wales whose registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X
0XX (FUNDING 2);
(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 CASH MANAGER and the FUNDING 2 GIC PROVIDER); 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 FUNDING 2 SECURITY TRUSTEE, which expression shall
include such company and all other persons or companies for the time
being acting as security trustee (or co-trustee) pursuant to the terms
of the Funding 2 Deed of Charge).
WHEREAS:
(A) Halifax (then in its capacity as the Cash Manager) agreed pursuant to
the Cash Management Agreement to provide Cash Management Services to
Funding 2.
(B) The Cash Management Agreement provides that Funding 2 shall invest its
liquid funds from time to time in interest bearing accounts and the
Funding 2 GIC Provider has provided such an account pursuant to and on
the terms of Funding 2 Guaranteed Investment Contract and the Funding
2 Bank Account Agreement.
(C) 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 Funding 2 Guaranteed Investment Contract) were
transferred to Bank of Scotland.
(D) The parties hereto have agreed to amend and restate the Funding 2
Guaranteed Investment Contract 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) is expressly and
specifically incorporated into this Agreement and, accordingly, the
expressions defined in the Master Definitions and Construction
Schedule (as so amended, varied or supplemented from time to time)
shall, except where the context otherwise requires and save where
otherwise defined herein, have the same meanings in this Agreement,
including the Recitals hereto and this Agreement shall be construed in
accordance with the interpretation provisions set out in Clause 3 of
the Master Definitions and Construction Schedule.
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1.2 This Agreement amends and restates the Funding 2 Guaranteed Investment
Contract dated 17 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.
2. THE FUNDING 2 GIC ACCOUNT
The Funding 2 GIC Provider confirms that (on the instructions of
Funding 2) the Funding 2 GIC Account has been opened in its books in
the name of Funding 2, and it agrees to accept on deposit in the
Funding 2 GIC Account all monies transferred, from time to time to
that account, subject to and upon the terms of this Agreement, the
Bank Account Agreement, the Cash Management Agreement and the Funding
2 Deed of Charge.
3. INTEREST
3.1 Interest shall accrue daily on the Funding 2 GIC Balance and shall be
paid monthly on the last Business Day of each month at a rate of
interest equal to the Funding 2 GIC Rate (calculated on the basis of
the actual number of days elapsed and a 365 day year) by payment for
value on the same day to the Funding 2 GIC Account or such other
accounts as Funding 2 shall specify.
3.2 In the event that a Master Intercompany Loan Acceleration Notice is
served on Funding 2 by the Funding 2 Security Trustee, then, on the
date of such Master Intercompany Loan Acceleration Notice, the Funding
2 GIC Provider shall pay to the Funding 2 Security Trustee the
aggregate of all interest accrued on the Funding 2 GIC Account on each
day during the Interest Period in which such Master Intercompany Loan
Acceleration Notice is served up to (but excluding) the date of such
Master Intercompany Loan Acceleration Notice. As and from the date of
such Master Intercompany Loan Acceleration Notice, the Funding 2 GIC
Provider shall comply with the directions of the Funding 2 Security
Trustee in relation to the Funding 2 GIC Account.
4. WITHDRAWALS AND DEPOSITS
4.1 Subject always to the provisions of the Cash Management Agreement,
Clause 6.3 of the Bank Account Agreement and the Funding 2 Deed of
Charge, Funding 2 or the Cash Manager on behalf of Funding 2, may on
any London Business Day give notice to the Funding 2 GIC Provider that
it wishes to withdraw on such date all or part of the Funding 2 GIC
Balance from the Funding 2 GIC Account and the Funding 2 GIC Provider
shall comply with such notice and pay the amount specified in such
notice to the account specified therein, provided that if any such
notice is received after 2.30 p.m. on any day it shall be deemed to
have been received at the opening of business on the next following
London Business Day.
4.2 Funding 2 may deposit sums in the Funding 2 GIC Account, to the extent
permitted by the terms of the Cash Management Agreement and the
Funding 2 Deed of Charge, and the Funding 2 GIC Provider agrees to
accept and credit to the Funding 2 GIC Account such sums in accordance
with the other terms hereof.
5. TERMINATION
5.1 Following termination of the Funding 2 Bank Account Agreement and/or
closing of the Funding 2 GIC Account in accordance with the Funding 2
Bank Account Agreement, Funding 2 or the Funding 2 Security Trustee
may terminate this Agreement by serving a written notice of
termination on the Funding 2 GIC Provider.
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6. WARRANTIES
6.1 The Funding 2 GIC Provider warrants to Funding 2 and the Funding 2
Security Trustee at the date hereof, on each date on which an amount
is credited to the Funding 2 GIC Account and on each Funding 2
Interest Payment Date, that it is duly incorporated with limited
liability under the laws of Scotland and registered as a public
company under the Companies Xxx 0000 and is an institution authorised
to carry on banking business (including accepting deposits) under the
Financial Services and Markets Xxx 0000.
6.2 The Funding 2 GIC Provider undertakes to notify Funding 2 and the
Funding 2 Security Trustee immediately if, at any time during the term
of this Agreement, either of the statements contained in Clause 6.1
ceases to be true. The warranties set out in Clause 6.1 shall survive
the signing and delivery of this Agreement.
7. ASSIGNMENT
7.1 Save as otherwise contemplated in this Agreement or the Cash
Management Agreement, no party hereto (other than the Funding 2
Security Trustee) may assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Funding
2 Security Trustee and unless each Rating Agency has confirmed in
writing to the Funding 2 Security Trustee that such assignment or
transfer would not adversely affect the then current ratings of any of
the Notes of the Master Issuer. In any event any assignee of the
Funding 2 GIC Provider must be an institution authorised to carry on
banking business (including accepting deposits) under the Financial
Services and Markets Xxx 0000.
7.2 Notwithstanding the provisions of Clause 7.1 above, the parties hereto
acknowledge that Funding 2 may assign all its rights, title and
interest in this Agreement to the Funding 2 Security Trustee, for the
benefit of the Funding 2 Secured Creditors, under the Funding 2 Deed
of Charge.
8. AGENCY
The Funding 2 GIC Provider agrees and confirms that, unless otherwise
notified by Funding 2 or the Funding 2 Security Trustee, the Cash
Manager as agent of Funding 2, may act on behalf of Funding 2 under
this Agreement.
9. INFORMATION
The Funding 2 GIC Provider shall provide to the Funding 2 Security
Trustee, or procure the provision to the Funding 2 Security Trustee
of, such information and evidence in respect of any dealing between
Funding 2 and the Funding 2 GIC Provider or otherwise under or in
relation to this Agreement as the Funding 2 Security Trustee may
reasonably request and Funding 2 hereby waives any right or duty of
confidentiality which it may have or which may be owed to it by the
Funding 2 GIC Provider in respect of the disclosure of such
information and evidence pursuant to this Clause 9.
10. MODIFICATION
Save as otherwise provided herein, no amendment, modification or
variation of this Agreement shall be effective unless it is in writing
and signed by (or by some person duly authorised by) each of the
parties hereto and each of the Rating Agencies has confirmed that such
amendment, modification or variation will not adversely affect the
then current ratings of any of the Notes of the Master Issuer.
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11. PAYMENTS AND WITHHOLDINGS
The parties agree that payments required to be made hereunder shall be
made in accordance with Clause 3 of the Funding 2 Bank Account
Agreement and that Clauses 14 and 15 of the Funding 2 Bank Account
Agreement shall, to the extent that it relates to the Funding 2 GIC
Account, be incorporated in and shall apply, mutatis mutandis, to this
Agreement (and for this purpose references to any ACCOUNT BANK shall
be deemed to be replaced by the FUNDING 2 GIC PROVIDER) such that all
payments to be made by the Funding 2 GIC Provider hereunder will be
made upon the terms and subject to the same conditions as are set out
in Clauses 14 and 15 of the Funding 2 Bank Account Agreement.
12. 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
17.00 hours 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 Funding 2: to Permanent Funding (No. 2)
Limited, 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (facsimile
number x00 (000) 0000 0000) for the attention of the Secretary
with a copy to Bank of Scotland plc, Treasury Division, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (020) 7574
8784) for the attention of Head of Mortgage Securitisation and
Covered Bonds; and
(b) in the case of the Funding 2 GIC Provider: to Bank of Scotland
plc, Leeds Business Centre, 000 Xxxxxxxxxx Xxxxxx, Xxxxx, XX0
0XX (facsimile number x00 (0) 0000 000000) for the attention
of the Associate Director with copies to: Bank of Scotland
plc, Halifax Division, Level 3, Lovell Park, 0 Xxxxxx Xxxx
Xxxx, Xxxxx XX0 0XX (facsimile number x00 (0) 0000 000000) for
the attention of Head of Mortgage Securitisation; and Bank of
Scotland plc, Treasury Division 00 Xxx Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX (facsimile number x00 (000) 0000 0000) for the
attention of Head of Mortgage Securitisation and Covered
Bonds;
(c) in the case of the Cash Manager: to Bank of Scotland plc,
Halifax Division, Level 3, Lovell Park, 0 Xxxxxx Xxxx Xxxx,
Xxxxx XX0 0XX (facsimile number x00 (0) 0000 000000) 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 x00 (000) 0000 0000)
for the attention of the Head of Mortgage Securitisation and
Cover Bonds; and
(d) in the case of the Funding 2 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.
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.
13. COUNTERPARTS AND SEVERABILITY
13.1 This Agreement may be executed in any number of counterparts (manually
or by facsimile), and by the parties on separate counterparts, but
shall not be effective until each party has executed at least
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one counterpart. Each counterpart shall constitute an original of this
Agreement, but all the counterparts shall together constitute but one
and the same instrument.
13.2 Where any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations
under this Agreement, or of such provision or obligation in any other
jurisdiction, shall not be affected or impaired thereby.
14. THE FUNDING 2 SECURITY TRUSTEE
The Funding 2 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
Funding 2 GIC Provider or Funding 2 hereunder.
15. AMENDMENTS
Subject to Clause 24 of the Funding 2 Deed of Charge (Supplemental
Provisions Regarding the Funding 2 Security Trustee), any amendments
to this Agreement will be made only with the prior written consent of
each party to this Agreement.
16. EXCLUSION OF THIRD PARTY RIGHTS
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 but without prejudice to the rights of the Funding 2
Security Trustee as assignee under the Funding 2 Deed of Charge.
17. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
18. 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 on the day and year first before written.
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SIGNATORIES
FUNDING 2
EXECUTED as a DEED by ) /S/ XXXXXXX XXXXXXX
PERMANENT FUNDING (NO. 2) )
LIMITED acting by two directors ) /S/ XXXXXX XXXXXXXX
FUNDING 2 GIC PROVIDER AND CASH MANAGER
EXECUTED as a DEED by ) /S/ XXX XXXXXXX
BANK OF SCOTLAND PLC )
acting by its attorney ) /S/ XXXXX XXXXXXXXX
in the presence of: )
Witness's signature: /S/ XXXXX XXXX
Name:
Address: XXXXX & OVERY LLP
00 XXXX XXXXXX
XXXXXX X00 0XX
FUNDING 2 SECURITY TRUSTEE
EXECUTED as a DEED )
for and on behalf of ) /S/ XXXXXXX XXXXXX
THE BANK OF NEW YORK )
by its authorised signatory )
in the presence of )
Witness's signature: /S/ XXXXX XXXX
Name:
Address: XXXXX & XXXXX LLP
00 XXXX XXXXXX
XXXXXX X00 0XX
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