Exhibit 10.1
DRAFT (1):25/09/07
AMENDED AND RESTATED FUNDING 2 GUARANTEED
INVESTMENT CONTRACT
[{circle}] OCTOBER 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
XXXXX & XXXXX
XXXXX & XXXXX LLP
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.......................................................... 4
11. Payments and Withholdings............................................. 4
12. Notices............................................................... 4
13. Counterparts and Severability......................................... 5
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 [{circle}] October 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);
(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
[{circle}] October 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 2 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 by
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 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.
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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.
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 +44 (020)
7398 6325) 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 x00 (000) 0000 0000) 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, c/o Halifax
Division, Bradford Business Centre, 00 Xxxx Xxxxxx, Xxxxxxxx XX0
0XX (facsimile number x00 (0) 0000 000000 for the attention of
the Associate Director; Bank of Scotland plc, Halifax Division,
Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (facsimile number
x00 (0) 0000 000000) for the attention of Mortgage Securitisation
Manager; and Bank of Scotland, Treasury Division 00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number x00 (000) 0000 0000)
for the attention of Head of Capital Markets and Securitisation;
(c) in the case of the Cash Manager: to Bank of Scotland plc, Halifax
Division at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX
(facsimile number x00 (0) 0000 000000) for the attention of the
Mortgage Securitisation Manager with a copy to HBOS Treasury
Services plc, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (000) 0000 0000) for the attention of the Head of
Capital Markets and Securitisation; 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 +44 (0)
20 7964 2533) for the attention of Corporate Trust
Administration - ABS/MBS,
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or to such other address or facsimile number or for the attention of
such other person or entity as may from time to time be notified by any
party to the others by written notice in accordance with the provisions
of this Clause 12.
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 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 )
PERMANENT FUNDING (NO. 2) )
LIMITED acting by two directors )
FUNDING 2 GIC PROVIDER AND CASH MANAGER
EXECUTED as a DEED by )
BANK OF SCOTLAND PLC )
acting by its attorney )
in the presence of: )
Witness's signature:
Name:
Address:
FUNDING 2 SECURITY TRUSTEE
EXECUTED as a DEED by an authorised )
signatory for and on behalf of )
THE BANK OF NEW YORK )
Authorised signatory
Witness's signature:
Name:
Address:
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