Exhibit 10.8
EXECUTION COPY
AMENDED AND RESTATED CORPORATE SERVICES
AGREEMENT
DATED 17 OCTOBER 2006
STRUCTURED FINANCE MANAGEMENT LIMITED
(as CORPORATE SERVICES PROVIDER)
and
SFM CORPORATE SERVICES LIMITED
(as SHARE TRUSTEE)
and
PERMANENT HOLDINGS LIMITED
(as HOLDINGS)
and
PERMANENT FUNDING (NO. 1) LIMITED
(as FUNDING 1)
and
PERMANENT FUNDING (NO. 2) LIMITED
(as FUNDING 2)
and
HALIFAX PLC
(as HALIFAX)
and
THE BANK OF NEW YORK
(as FUNDING 1 SECURITY TRUSTEE and FUNDING 2 SECURITY TRUSTEE)
XXXXX & XXXXX
XXXXX & XXXXX LLP
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.........................................2
2. Nomination of Directors prior to Service of an Acceleration Notice.....2
3. Nomination of Directors after Service of an Intercompany Loan
Acceleration Notice or Master Intercompany Loan Acceleration Notice....4
4. Provision of Corporate Administrative Services.........................5
5. Additional Services....................................................7
6. Confidentiality........................................................7
7. Remuneration, Costs and Expenses.......................................8
8. Engagement of Third Parties............................................8
9. Covenant by Holdings...................................................9
10. Undertakings by Funding 1 and Funding 2................................9
11. Indemnity 9
12. Termination...........................................................10
13. Non-Assignment........................................................10
14. Permitted Enforcement.................................................10
15. The Funding 1 Security Trustee and the Funding 2 Security Trustee.....10
16. Notices...............................................................10
17. Amendments............................................................11
18. Invalidity............................................................11
19. Non-Exclusive Appointment.............................................12
20. Contracts (Rights of Third Parties) Act 1999..........................12
21. Counterparts..........................................................12
22. Delegation............................................................12
23. Governing Law.........................................................12
24. Submission to jurisdiction............................................12
Signatories..................................................................13
THIS AMENDED AND RESTATED CORPORATE SERVICES AGREEMENT (this AGREEMENT) is made
on 17 October 2006 BETWEEN:
(1) STRUCTURED FINANCE MANAGEMENT LIMITED (registered number 3853947) whose
business address is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xx its
capacity as THE CORPORATE SERVICES PROVIDER);
(2) SFM CORPORATE SERVICES LIMITED (registered number 3920258) whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (xxx SHARE
TRUSTEE);
(3) PERMANENT HOLDINGS LIMITED (registered number 4267664) whose registered
office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (HOLDINGS);
(4) PERMANENT FUNDING (NO. 1) LIMITED (registered number 4267660) whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (FUNDING
1);
(5) PERMANENT FUNDING (NO. 2) LIMITED (registered number 4441772) whose
registered office is at 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX (FUNDING
2);
(6) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales, whose registered
office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (HALIFAX);
(7) THE BANK OF NEW YORK, a New York banking corporation whose London branch
office is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its
capacity as the FUNDING 1 SECURITY TRUSTEE); and
(8) THE BANK OF NEW YORK, a New York banking corporation whose London branch
office is at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (in its
capacity as the FUNDING 2 SECURITY TRUSTEE).
WHEREAS:
(A) By the Corporate Services Agreement, the Funding 1 Corporate Services
Provider has agreed with, inter alios, the other parties to this
Agreement to provide various corporate administration and personnel
services to each of Holdings, Funding 1 and Permanent Holdings Limited
(PECOH) on the terms and conditions contained in this Agreement.
(B) Pursuant to a declaration of trust dated 14 June 2002 (the FIRST
DECLARATION OF TRUST) the Share Trustee holds two ordinary shares in the
issued share capital of Holdings on a discretionary trust for the
Beneficiaries (as defined in the First Declaration of Trust).
(C) The parties to the Corporate Services Agreement have agreed to amend and
restate the terms of that Agreement as set out herein, including to
provide for the appointment of the Corporate Services Provider to
provide various corporate and administration and personnel services to
Funding 2 on the same terms as such services are provided by it to
Funding 1.
1
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 17
October 2006 (as the same may be amended, restated or supplemented from
time to time with the consent of the parties to this Agreement) (the
MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and the master issuer
master definitions and construction schedule signed for the purposes of
identification by Xxxxx & Overy LLP and Sidley Austin on 17 October 2006
(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 (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 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 (Interpretation and
Construction) of the Master Definitions and Construction Schedule and
the Master Issuer Master Definitions and Construction Schedule.
In addition, COMPANIES means Funding1, Funding 2 and Holdings and each a
COMPANY.
1.2 In this Agreement each reference to a party shall be deemed to include
its successors and permitted assigns. For this purpose SUCCESSOR means
in relation to a party an assignee or successor in title of such party
or any person who, under the laws of its jurisdiction of incorporation
or domicile has assumed the rights and/or obligations of such party or
to whom under such laws the same have been transferred.
1.3 This Agreement amends and restates the Funding 1 Corporate Services
Agreement made on the 14 June 2002 between the parties hereto other than
Funding 2 and the Funding 2 Security Trustee (the PRINCIPAL AGREEMENT).
As of the date of this Agreement, any future rights or obligations
(excluding such obligations accrued to the date of this Agreement) of a
party under the Principal Agreement shall be extinguished and shall
instead be governed by this Agreement.
2. NOMINATION OF DIRECTORS PRIOR TO SERVICE OF AN ACCELERATION NOTICE
2.1 ENTITLEMENT TO NOMINATE
Prior to the service of (in respect of Funding 1) an Intercompany Loan
Acceleration Notice and/or (in respect of Funding 2) a Master
Intercompany Loan Acceleration Notice and for so long as this Agreement
remains in force:
(a) Halifax is entitled to, and shall, nominate one person willing to
serve in the capacity of director of each of the Companies (and,
in each case, Halifax shall be deemed to have so nominated Xxxxx
Xxxxx as its first nominee in such capacity);
(b) the Corporate Services Provider is entitled to, and shall,
nominate two persons willing to serve in the capacity of director
of each of the Companies (and, in each case, shall be deemed to
have so nominated SFM Directors Limited (registered number
3920254) and SFM Directors (No. 2) Limited (registered number
4017430) as its first
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nominees in such capacity) and nothing herein shall prevent the
Corporate Services Provider from nominating itself as a corporate
director of any of the above companies; and
(c) the Corporate Services Provider will be entitled to, and shall,
nominate one person willing to serve in the capacity of Company
Secretary of the each of the Companies and has nominated SFM
Corporate Services Limited (registered number 3920255) as its
first nominee in such capacity.
2.2 APPOINTOR
In relation to any person nominated or deemed to be nominated under
CLAUSE 2.1 above or CLAUSE 2.3 below, whichever of Halifax or the
Corporate Services Provider nominated that person is referred to below
as that person's APPOINTOR.
2.3 RESIGNATION OR RETIREMENT OF DIRECTOR
Each appointor hereby confirms to the other that, if the person
nominated or deemed to be nominated by it should resign or retire or for
any other reason cease to act as director of any of the Companies, it
will promptly:
(a) procure that such director shall acknowledge in writing that he
has no claim of any nature whatsoever against the relevant
Company;
(b) nominate another person willing to act in the relevant capacity;
and
(c) procure the consent of that other person to act in that capacity.
2.4 ACCEPTANCE OF APPOINTMENT AND PAYMENT
Each appointor shall procure that each of the persons respectively
nominated or deemed to be nominated by it from time to time as provided
above accepts the relevant appointment and acts in the relevant capacity
without fee or remuneration (including, for the avoidance of doubt, upon
resignation or retirement) from any of the Companies, save that nothing
in this Agreement shall prejudice the right of the Corporate Services
Provider to be remunerated for its services under CLAUSE 7
(Remuneration, Costs and Expenses) below.
2.5 COMPOSITION OF BOARDS
(a) The Share Trustee undertakes and agrees:
(i) subject to its duties and obligations as Share Trustee under the
First Declaration of Trust and subject to CLAUSE 3.4 (Requests of
the Funding 1 Security Trustee and the Funding 2 Security
Trustee) that it shall exercise its rights as a shareholder of
Holdings and all rights and powers vested in it under the
Articles of Association of Holdings so as to procure that the
board of directors of Holdings comprises at all times one nominee
of Halifax (provided that Halifax shall have nominated a person
to such office) and two nominees of the Funding 2 Corporate
Services Provider, as provided under CLAUSE 2.1 above; and
(ii) the Corporate Services Provider and Halifax shall procure that at
all times a majority (by number) of the directors nominated by
them under CLAUSE 2.1 above, for
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Holdings will be resident in the UK (and not in any other
jurisdiction) for the purposes of UK income tax.
(b) Holdings undertakes and agrees:
(i) subject to CLAUSE 3.4 (Requests of the Funding 1 Security Trustee
and the Funding 2 Security Trustee) that it shall exercise its
rights as a shareholder of Funding 1 and Funding 2 and all rights
and powers vested in it under the respective Articles of
Association of Funding 1 and Funding 2 so as to procure that the
board of directors of Funding 1 and Funding 2 comprises at all
times one nominee of Halifax (provided that Halifax shall have
nominated a person to such office) and two nominees of the
Corporate Services Provider, as provided under CLAUSE 2.1 above;
and
(ii) the Corporate Services Provider and Halifax shall procure that at
all times a majority (by number) of the directors nominated by
them under CLAUSE 2.1 above, for Funding 1 and Funding 2 will be
resident in the UK (and not in any other jurisdiction) for the
purposes of UK income tax.
3. NOMINATION OF DIRECTORS AFTER SERVICE OF AN INTERCOMPANY LOAN
ACCELERATION NOTICE OR MASTER INTERCOMPANY LOAN ACCELERATION NOTICE
3.1 RIGHTS AND POWERS UPON AN INTERCOMPANY LOAN ACCELERATION NOTICE
In the event that an Intercompany Loan Acceleration Notice is served on
Funding 1, Holdings shall exercise its rights as the sole beneficial
owner of one share in Funding 1 and the rights and powers vested in it
under the Articles of Association of Funding 1 so as to procure that:
(a) such new or additional directors of Funding 1 as the Funding 1
Security Trustee shall direct shall be duly appointed; and
(b) such of the directors nominated pursuant to CLAUSES 2.1
(Entitlement to Nominate) or 2.3 (Resignation or Retirement of
Director) above as the Funding 1 Security Trustee
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requests shall tender their resignation, if so requested by the
Funding 1 Security Trustee,
and nothing shall prevent the Funding 1 Security Trustee from nominating
itself for appointment as a director of Funding 1 provided that a
majority (by number) of the directors of Funding 1 will continue to be
resident in the UK (and not in any other jurisdiction) for the purposes
of the income tax.
3.2 RIGHTS AND POWERS UPON A MASTER INTERCOMPANY LOAN ACCELERATION NOTICE
In the event that a Master Intercompany Loan Acceleration Notice is
served on Funding 2, Holdings shall exercise its rights as the sole
beneficial owner of one share in Funding 2 and the rights and powers
vested in it under the Articles of Association of Funding 2 so as to
procure that:
(a) such new or additional directors of Funding 2 as the Funding 2
Security Trustee shall direct shall be duly appointed; and
(b) such of the directors nominated pursuant to CLAUSE 2.1
(Entitlement to Nominate) or 2.3 (Resignation or Retirement of
Director) above as the Funding 2 Security Trustee requests shall
tender their resignation, if so requested by the Funding 2
Security Trustee,
and nothing shall prevent the Funding 2 Security Trustee from nominating
itself for appointment as a director of Funding 2 provided that a
majority (by number) of the directors of Funding 2 will continue to be
resident in the UK (and not in any other jurisdiction) for the purposes
of the income tax.
3.3 TERMS OF APPOINTMENT
Any director nominated or appointed pursuant to CLAUSE 3.1 above shall
be appointed upon such terms (including reasonable remuneration) as may
be agreed in writing between its appointees and the Funding 1 Security
Trustee and the Funding 2 Security Trustee.
3.4 REQUESTS OF THE FUNDING 1 SECURITY TRUSTEE AND THE FUNDING 2 SECURITY
TRUSTEE
For so long as Holdings is the beneficial holder of the whole of the
issued share capital of Funding 1 and/or Funding 2, and in the event
(but only in the event) that the provisions of CLAUSE 3.1 above apply,
Holdings undertakes and agrees, subject to its duties and obligations as
trustee under the First Declaration of Trust, to comply with all
requests of the Funding Security 1 Trustee and/or the Funding 2 Security
Trustee (respectively) as to:
(a) the exercise of its rights as shareholder of Funding 1 and/or
Funding 2; and
(b) all rights and powers vested in it under the Articles of
Association of Holdings,
in relation to the appointment and/or removal from office by Holdings of
any of the directors of Funding 1 and/or Funding 2.
3.5 RESIGNATION
In the event that an Intercompany Loan Acceleration Notice or a Master
Intercompany Loan Acceleration Notice is served on Funding 1 or Funding
2 (respectively), any appointment of a director in office at such time
validly made pursuant to CLAUSES 2.1 (Entitlement to Nominate) or 2.3
(Resignation or Retirement of Director) above shall continue to be
effective in accordance with the provisions of this Agreement unless and
until such director has resigned pursuant to CLAUSE 2.3 above.
3.6 NO RECOURSE
The obligations of the parties hereto under this Agreement are solely
the corporate obligations of each of the parties.
No recourse shall be had in respect of any obligation or claim arising
out of or based upon this Agreement against any employee, officer or
director of any of the parties hereto, save where the claim, demand,
liability, cost or expense in connection therewith arises from the gross
negligence, wilful default or breach of duty of such employee, officer
or director of the respective party.
4. PROVISION OF CORPORATE ADMINISTRATIVE SERVICES
Until termination of this Agreement pursuant to CLAUSE 12 (Termination),
the Corporate Services Provider shall provide all general company
secretarial, registrar and company
5
administration services (the CORPORATE SERVICES) required by each of the
Companies including, without limitation, the following:
(a) accepting services of process and any other documents or notices
to be served on any of the Companies and prompt notification to
each Company of any legal proceedings initiated of which the
company secretary becomes aware;
(b) procuring the preparation and keeping of the accounts of each of
the Companies by Halifax and such books and records as are
required by any applicable law or otherwise to be kept by each of
the Companies for the proper conduct of the affairs of each
Company. For the avoidance of doubt the Corporate Services
Provider shall not be responsible for (i) maintaining the
accounting records or (ii) drawing up draft accounts in
preparation for the annual audit of any of the Companies;
(c) providing all necessary staff and facilities for each of the
Companies, including the provision of registered office
accommodation for each of the Companies (which shall be at 00
Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX);
(d) in respect of each Company, the maintenance and safe-keeping of
the register of shareholders and corporate records in accordance
with the Articles of Association and the Companies Act, issuing
share certificates, and effecting share transfers and filing
(insofar as the relevant board of directors have duly approved,
signed and delivered the same and monies in respect of applicable
fees are made available to the company secretary) any applicable
statutory returns and tax filings in England and Wales;
(e) the convening of the annual shareholders' meeting and the annual
meeting of the directors' of each of the Companies providing
facilities for holding the said meetings and preparing and
keeping minutes of the said meetings;
(f) in respect of each Company, as and when requested by a director
of the Company, the company secretary of the Company or the
auditors of the Company, deliver to such person such information
in connection with the Company as may be in the possession of the
Corporate Services Provider or as may be reasonably obtainable by
it;
(g) in respect of each Company, as and when requested under the terms
of any agreements to which the Company is party, the delivery to
any person entitled to it under such terms of such information or
documents which is (i) provided for under such agreements, and
(ii) in the possession of the Corporate Services Provider or is
reasonably obtainable by it;
(h) in respect of each Company, the response to company
correspondence and the communication thereof with directors and
shareholders as necessary;
(i) in respect of each Company, at the request of the relevant board
of directors, prepare and forward to the shareholders of such
Company all statements and notices which the board of directors
is required to issue, send or serve in accordance with its
Articles of Association;
(j) in respect of each Company, give, at the request of the relevant
board of directors, any directions and information to any
providers or services (such as auditors, accountants, financial
or management advisers or attorneys) or other agents appointed by
the board of directors pursuant to the relevant Articles of
Association;
6
(k) use of its best efforts to cause each of the Companies (to the
extent that the relevant Company has sufficient funds and other
resources and is otherwise able to do so) to comply with its
obligations under any agreement by which such Company is bound
and under all relevant laws; and
(l) deliver to the Liquidity Facility Provider an Extension Request
as contemplated by CLAUSE 2.3 of the Liquidity Facility
Agreement.
5. ADDITIONAL SERVICES
The Corporate Services Provider may agree with the Funding 1 Security
Trustee and the Funding 2 Security Trustee to provide certain other
supplementary services which any of the Companies, the Funding 1
Security Trustee and/or the Funding 2 Security Trustee may from time to
time request the Corporate Services Provider to carry out, or that the
Corporate Service Provider deems necessary as being ancillary to the
statutory duties of the Directors nominated by the Corporate Services
Provider (ADDITIONAL SERVICES).
6. CONFIDENTIALITY
The Corporate Services Provider shall not, and hereby undertakes to
procure that each person nominated or deemed to be nominated as director
or company secretary of any of the Companies by it pursuant to CLAUSE 2
(Nomination of Directors Prior to Service of an Acceleration Notice) and
any agent nominated by it pursuant to this Agreement shall not, and that
the Share Trustee shall not (regardless of whether or not such person
shall still be in office or is still a shareholder), at any time
disclose to any person, firm or company whatsoever, and shall treat as
confidential, any information relating to the business, finances or
other matters of Halifax, or any of the Companies, which such person may
have obtained as a result of (in the case of the Corporate Services
Provider) its role under this Agreement or as employer or principal to
any such director, shareholder or agent and (in the case of any such
director, shareholder or agent) his or its position as director,
shareholder or agent of any of the Companies, or otherwise have become
possessed, and the Corporate Services Provider shall use its best
endeavours to prevent any such disclosure, provided however that the
provisions of this CLAUSE 6 shall not apply:
(a) to the disclosure of any information already known to the
recipient otherwise than as a result of a breach of this
CLAUSE 6;
(b) to the disclosure of any information which is or becomes public
knowledge otherwise than as a result of such disclosure being
made in breach of this CLAUSE 6, or as a result of the
unauthorised or improper conduct of the recipient;
(c) to the extent that disclosure is required pursuant to any law or
order of any court 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 regulatory or taxation
authority (including, without limitation, any official bank
examiners or regulators or the Financial Services Authority in
its capacity as the UK Listing Authority);
(d) to the disclosure of any information to professional advisers to,
or agents of, the Corporate Services Provider, Halifax or any of
the Rating Agencies who receive the same under a duty of
confidentiality;
(e) to the disclosure of any information with the consent of all the
parties hereto to the Funding 1 Security Trustee, the Funding 2
Security Trustee or any Note Trustee;
7
(f) to the disclosure of any information in respect of Funding 1 to
the Funding 1 Security Trustee and in respect of Funding 2 to the
Funding 2 Security Trustee; and
(g) to disclosure on behalf of any of the Companies of any
information required by the terms of any Transaction Documents to
which any of the Companies is now or becomes a party, to the
persons to whom such disclosure is required by the terms of the
relevant Issuer Transaction Document,
and the Corporate Services Provider hereby agrees to indemnify and hold
harmless Halifax, the Funding 1 Security Trustee, the Funding 2 Security
Trustee and each of the Companies on an after tax basis for all losses,
damages, expenses, costs, claims and charges arising from or caused by
any disclosure of information by any of the Funding 2 Corporate Services
Provider or any agent appointed by it or any director nominated or
deemed to be nominated by it or any agent appointed by it, which
disclosure is made contrary to the provisions of this CLAUSE 6.
Upon termination of this Agreement pursuant to CLAUSE 12 (Termination),
the Share Trustee, the Corporate Services Provider, any of its agents
and each person nominated or deemed nominated by the Corporate Services
Provider as Director of Funding 1, Funding 2 and Holdings (regardless of
whether or not such a person shall still be in office) shall forthwith
deliver (and in the meantime hold on trust for, and to the order of
Halifax) to Halifax, or as Halifax shall direct, the information
described in CLAUSE 6 of this Agreement in their possession or under
their control howsoever held.
7. REMUNERATION, COSTS AND EXPENSES
Until termination of this Agreement pursuant to CLAUSE 12, the Corporate
Services Provider shall be entitled to remuneration under this Agreement
in accordance with a fee letter of even date hereof (the CORPORATE
SERVICES FEE LETTER).
Each of the Companies, the Share Trustee, the Funding 1 Security Trustee
and the Funding 2 Security Trustee agree that the Corporate Services
Provider is not required to advance, expend or use its own funds or
otherwise incur any liability on its own account in the provision of the
Corporate Services or the Additional Services.
Subject to the timely receipt of funds from Funding 1 or Funding 2 (as
applicable), the Corporate Services Provider undertakes, if requested,
to pay in a timely manner, on behalf of each of the Companies, all
operational costs incurred by each of the Companies in relation to this
Agreement.
Such operational costs shall include legal and auditor's fees, telex,
stationery, facsimile and telephone costs and other fees or expenses
payable to administer each of the Companies and to maintain that each of
the Companies is in existence and duly registered.
8. ENGAGEMENT OF THIRD PARTIES
The Corporate Services Provider may appoint agents to perform any of the
duties to be performed by the Corporate Services Provider, provided that
the Corporate Services Provider remains liable for the performance of
any duties by any agent as if such duty had been performed by the
Corporate Services Provider themselves.
8
The Corporate Services Provider shall not be liable for any loss to the
Funding 1 Issuers or the Master Issuer arising from the negligence,
fraud or wilful misconduct of any delegate appointed pursuant to this
CLAUSE 8 in the event that the relevant company has given its written
consent to such appointment, except to the extent such loss is caused by
the gross negligence, wilful default, dishonesty or fraud of the
Corporate Services Provider.
9. COVENANT BY HOLDINGS
Holdings hereby covenants (a) with Funding 1 and the Funding 1 Security
Trustee and (b) with Funding 2 and the Funding 2 Security Trustee that
it shall not sell, charge, exchange, transfer or otherwise deal in the
shares which it holds in each of the Funding 1 Issuers or the Master
Issuer (respectively) at any time prior to the Final Redemption relating
to the Funding 1 Issuers or the Master Issuer (respectively) without the
prior written consent of the Funding 1 Security Trustee and the Funding
2 Security Trustee (respectively).
10. UNDERTAKINGS BY FUNDING 1 AND FUNDING 2
Funding 1 and Funding 2 each hereby undertake (in each case, in respect
of themselves only) to:
(a) hold all of its board meetings in the UK;
(b) ensure all of its directors are and will remain residents in the
UK for UK tax purposes;
(c) ensure that it is centrally managed and controlled in the UK for
UK tax purposes; and
(d) adopt and maintain a basis of accounting which satisfies the
definition of "UK generally accepted accounting practice"
contained in section 50 of the Finance Xxx 0000.
11. INDEMNITY
The Companies shall, on written demand of the Corporate Services
Provider, indemnify and hold harmless the Corporate Services Provider
and any officer provided by the Corporate Services Provider and any of
the directors, officers, employees and agents of the Corporate Services
Provider at the time of such demand, against any liabilities, actions,
proceedings, claims or demands whatsoever which it or any of them may
incur or be subject to in direct consequence of this Agreement or as a
direct result of the performance of the functions and obligations
provided for under this Agreement except as a result of:
(a) a breach by the Corporate Services Provider of this Agreement; or
(b) the gross negligence, wilful default, dishonesty or fraud of the
Corporate Services Provider, any officer which is provided by the
Corporate Services Provider or any of the directors, officers,
employees or agents of the Corporate Services Provider, as the
case may be.
This indemnity shall expressly inure to the benefit of any director,
officer, employee or agent existing or future of the Corporate Services
Provider. The termination of this Agreement shall not affect the rights
and obligations of the parties arising under this CLAUSE 11 (Indemnity)
prior to such termination.
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12. TERMINATION
(a) In respect of rights and obligations relating to any of the Companies
under this Agreement, such rights and obligations shall terminate
automatically on the date falling 90 days after all Funding 1 Issuers
Secured Obligations and the Master Issuer Secured Obligations are
discharged in full.
(b) This Agreement shall terminate automatically on the date falling 90 days
after the termination of the Mortgages Trust Deed.
(c) Notwithstanding CLAUSES 11(A) and 11(B), each of the Companies may
terminate the appointment of its directors or any of them at any time in
accordance with the provisions set down in their respective Articles of
Association.
(d) The Corporate Services Provider may terminate this Agreement by not less
than three months' prior written notice to each of the parties to this
Agreement. Such termination shall take effect on the date of expiry of
the notice or such longer period as the parties may agree.
13. NON-ASSIGNMENT
The rights and obligations of the parties hereto are personal and, save
in the case of Funding 1 in accordance with the Funding 1 Deed of Charge
and Funding 2 in accordance with the Funding 2 Deed of Charge and shall
not be capable of assignment, except with the consent of the Funding 1
Security Trustee and the Funding 2 Security Trustee.
14. PERMITTED ENFORCEMENT
Save as permitted by the Funding 1 Issuer Deeds of Charge or the Master
Issuer Deed of Charge, each of Halifax and the Corporate Services
Provider agree with each of the Companies that it shall not take any
steps for the purpose of recovering any sum under or in connection with
this Agreement and shall not in any event take any steps to procure the
winding-up, administration or liquidation of any of the Companies on any
account whatsoever.
15. THE FUNDING 1 SECURITY TRUSTEE AND THE FUNDING 2 SECURITY TRUSTEE
The Funding 1 Security Trustee and the Funding 2 Security Trustee have
agreed to become a party to this Agreement for the better preservation
and enforcement of their respective rights under this Agreement but
shall have no obligation or liability whatsoever to the Corporate
Services Provider or the Companies under or arising from or by virtue of
the Funding 1 Security Trustee and the Funding 2 Security Trustee
joining as a party to this Agreement.
16. 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
or facsimile transmission and shall be deemed to be given (in the case
of facsimile transmission) when despatched 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 Halifax to: Xxxxxxx Xxxx (XX/0/0/XXX), Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX (facsimile number x00 (0)000 000 0000) for
the attention of the Head of Mortgage Securitisation, with a copy
to HBOS Treasury Services plc, 00 Xxx Xxxxx
00
Xxxxxx, Xxxxxx XX0X 0XX, facsimile number: x00 (0)00 0000 0000,
for the attention of the Head of Mortgage Securitisation and
Covered Bonds;
(b) in the case of Holdings to: 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X 0XX
(facsimile number x00 (0)00 0000 0000), for the attention of the
Secretary;
(c) in the case of the Corporate Services Provider to: 00 Xxxxx Xx.
Xxxxx'x, Xxxxxx XX0X 0XX (facsimile number x00 (0)00 0000 0000),
for the attention of the Directors;
(d) in the case of Funding 1 to: 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X
0XX (facsimile number x00 (0)00 0000 0000), for the attention of
the Secretary;
(e) in the case of Funding 2 to: 00 Xxxxx Xx. Xxxxx'x, Xxxxxx XX0X
0XX (facsimile number x00 (0)00 0000 0000), for the attention of
the Secretary; and
(f) in the case of the Funding 1 Security Trustee and the Funding 2
Security Trustee to: the Bank of New York, 00xx Xxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxx X00 0XX (facsimile number + 00 (0)00 0000 0000 or
+ 00 (0)00 0000 0000, for the attention of Global Structured
Finance - Corporate Trust),
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 16.
17. AMENDMENTS, WAIVERS AND CONSENTS
17.1 Subject to CLAUSE 2, CLAUSE 3 and CLAUSE 4 of the Controlling
Beneficiary Deed (as applicable) and (in the case of Funding 1) CLAUSE
25 of the Funding 1 Deed of Charge (and (in the case of Funding 2)
CLAUSE 12 of the Funding 2 Deed of Charge, no amendment or waiver of any
provision of this Agreement shall be effective unless the same shall be
in writing and signed by (or by some person duly authorised by) each of
the parties to this Agreement. In the case of a waiver, such waiver
shall be effective only in the specific instance and as against the
party or parties giving it for the specific purpose for which it is
given. 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.
17.2 Funding 1, Funding 2, the Funding 1 Security Trustee and the Funding 2
Security Trustee will each exercise all rights, powers, benefits and/or
discretions conferred on it under this Agreement (including, without
limitation, in giving its consent, approval or authorisation to any
event, matter or thing requested hereunder) in accordance with CLAUSES
2, 3 and 4 of the Controlling Beneficiary Deed (as applicable) and (in
the case of Funding 1) CLAUSE 25 (of the Funding 1 Deed of Charge and
(in the case of Funding 2) CLAUSE 12 of the Funding 2 Deed of Charge.
18. INVALIDITY
The invalidity or enforceability of any part of this Agreement shall not
prejudice or affect the validity or enforceability of the remainder.
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19. NON-EXCLUSIVE APPOINTMENT
The Corporate Service Provider shall be entitled to provide services of
a like nature to those to be provided by the Corporate Services Provider
under this Agreement to any other person. The Corporate Services
Provider shall not be deemed to be affected with notice of or to be
under any duty to disclose to the Company any fact or matter which may
come to the notice of the Corporate Services Provider or any employee in
the course of the Corporate Services Provider rendering similar services
to other persons in the course of business in any other capacity or in
any manner whatsoever otherwise than in the course of carrying out its
duties hereunder.
20. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no rights 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.
21. COUNTERPARTS
(a) 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 one counterpart.
(b) Each counterpart shall constitute an original, but all the counterparts
shall together constitute but one and the same instrument.
22. DELEGATION
The Corporate Services Provider shall have the power to delegate its
rights and duties in respect of its appointment as the secretary of (in
respect of Funding 1) to such person as Funding 1 and the Funding 1
Security Trustee may approve and (in respect of Funding 2) to such
person as Funding 2 and the Funding 2 Security Trustee may approve,
notwithstanding which the Corporate Services Provider shall remain
liable hereunder for any act or omission of any such delegate if such
act or omission were its own.
23. GOVERNING LAW
This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
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.
THIS AGREEMENT has been entered into on the date stated at the beginning of
this Agreement.
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SIGNATORIES
CORPORATE SERVICES PROVIDER
SIGNED by ) /s/ Xxxxxxx Xxxxxxx
for and on behalf of )
STRUCTURED FINANCE )
MANAGEMENT LIMITED )
SHARE TRUSTEE
SIGNED by ) /s/ Xxxxxxx Xxxxxxx
for and on behalf of )
SFM CORPORATE SERVICES )
LIMITED )
HOLDINGS
SIGNED by ) /s/ Xxxxx Xxxxxxx
for and on behalf of )
PERMANENT HOLDINGS LIMITED )
FUNDING 1
SIGNED by ) /s/ Xxxxx Xxxxxxx
for and on behalf of )
PERMANENT FUNDING (NO. 1) )
LIMITED )
FUNDING 2
SIGNED by ) /s/ Xxxxx Xxxxxxx
for and on behalf of )
PERMANENT FUNDING (NO. 2) )
LIMITED )
HALIFAX
SIGNED by ) /s/ Xxx Xxxxxxx
for and on behalf of ) /s/ Xxxxxxx Takk
HALIFAX PLC )
FUNDING 1 SECURITY TRUSTEE
SIGNED by ) /s/ Xxxx Xxxxxxx
for and on behalf )
THE BANK OF NEW YORK )
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FUNDING 2 SECURITY TRUSTEE
SIGNED by ) /s/ Xxxx Xxxxxxx
for and on behalf )
THE BANK OF NEW YORK )
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