EXHIBIT 10.10
DRAFT (1):25/09/07
DRAFT
AMENDED AND RESTATED MORTGAGES TRUSTEE
GUARANTEED INVESTMENT CONTRACT
[__] OCTOBER 2007
PERMANENT MORTGAGES TRUSTEE LIMITED
AS THE MORTGAGES TRUSTEE
AND
BANK OF SCOTLAND PLC
AS CASH MANAGER AND MORTGAGES TRUSTEE GIC PROVIDER
AND
THE BANK OF NEW YORK
AS FUNDING 1 SECURITY TRUSTEE AND FUNDING 2 SECURITY TRUSTEE
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation...........................................1
2. The Mortgages Trustee GIC Account........................................2
3. Interest.................................................................2
4. Withdrawals and Deposits.................................................2
5. Termination..............................................................3
6. Warranties...............................................................3
7. Assignment...............................................................3
8. Agency...................................................................4
9. Information..............................................................4
10. Payments and Withholdings................................................4
11. Notices..................................................................4
12. Counterparts and Severability............................................5
13. The Funding 1 Security Trustee and the Funding 2 Security Trustee........5
14. Amendments, Waivers and Contracts........................................5
15. Exclusion of Third Party Rights..........................................6
16. Governing Law............................................................6
17. Submission to Jurisdiction...............................................6
Signatories....................................................................7
THIS AMENDED AND RESTATED MORTGAGES TRUSTEE GUARANTEED INVESTMENT CONTRACT
(this AGREEMENT) is made as a deed on [__] October 2007
BETWEEN:
(1) PERMANENT MORTGAGES TRUSTEE LIMITED (registered number 83116), a private
limited company incorporated under the laws of Jersey, Channel Islands,
whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇,
Channel Islands, (acting in its capacity as the MORTGAGES TRUSTEE);
(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 ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (acting in its capacities as the CASH MANAGER
and the MORTGAGES TRUSTEE GIC PROVIDER);
(3) THE BANK OF NEW YORK, A New York Banking Corporation acting through its
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its capacities as
the FUNDING 1 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 1
Deed of Charge and the FUNDING 2 SECURITY TRUSTEE, which expression shall
include such company and all other persons or companies for the time being
acting as Funding 2 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 in
connection with the business of the Mortgages Trustee.
(B) The Cash Management Agreement provides that the Mortgages Trustee shall
pay into an interest bearing account all Monthly Payments and other
amounts set out in Clause 4 of the Cash Management Agreement and the
Mortgages Trustee GIC Provider has provided such an account
pursuant to and on the terms of the Mortgages Trustee Guaranteed
Investment Contract and the Bank Account Agreement.
(C) On the Reorganisation Date, pursuant to the HBOS Group Reorganisation ▇▇▇
▇▇▇▇, The Governor and Company of the Bank of Scotland was registered as
a public company under the Companies ▇▇▇ ▇▇▇▇ 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 Mortgages Trustee
Guaranteed Investment Contract) were transferred to Bank of Scotland.
(D) The parties hereto have agreed to amend and restate the Mortgages Trustee
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 dated
[__] October 2007 (as the same may be amended, varied or supplemented
from time to time with the consent of the parties hereto) (the MASTER
DEFINITIONS AND
1
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) 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.
1.2 This Agreement amends and restates the Mortgages Trustee Guaranteed
Investment Contract made on 14 June 2002 as amended and restated on 17
October 2007 (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 under
the Principal Agreement shall be extinguished and shall instead be
governed by this Agreement.
1.3 Any reference in this Agreement to any discretion, power, right, duty or
obligation on the part of the Mortgages Trustee shall be as exercised by
the Mortgages Trustee only as directed by the Beneficiaries but subject
in each case to the provisions of the Mortgages Trust Deed and the
Controlling Beneficiary Deed.
2. THE MORTGAGES TRUSTEE GIC ACCOUNT
The Mortgages Trustee GIC Provider confirms that (on the instructions of
the Mortgages Trustee (as trustee for the Beneficiaries)) the Mortgages
Trustee GIC Account has been opened in its books in the name of the
Mortgages Trustee, and it agrees to accept on deposit in the Mortgages
Trustee GIC Account all monies transferred to the Mortgages Trustee from
time to time subject to and upon the terms of this Agreement and the Bank
Account Agreement.
3. INTEREST
3.1 Interest shall accrue daily on the Mortgages Trustee GIC Balance and
shall be paid monthly on the last Business Day of each month at a rate of
interest equal to the Mortgages Trustee 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 Mortgages Trustee GIC Account or such other
accounts as the Mortgages Trustee (as trustee for the Beneficiaries)
shall specify.
3.2 If the Mortgages Trustee GIC Provider receives notice in writing from (a)
the Funding 1 Security Trustee or the Funding 2 Security Trustee (as
applicable) to the effect that an Intercompany Loan Enforcement Notice or
a Master Intercompany Loan Acceleration Notice (respectively) has been
served or (b) from the Mortgages Trustee that the appointment of the Bank
of Scotland plc as Cash Manager under the Cash Management Agreement has
been terminated, then, save as otherwise expressly provided under the
Bank Account Agreement, the Mortgages Trustee GIC Provider agrees that it
shall, upon receipt of such notice from the Funding 1 Security Trustee or
the Funding 2 Security Trustee (as applicable), comply with the
directions of the Funding 1 Security Trustee or the Funding 2 Security
Trustee or, in the case of (b) above, any successor cash manager
appointed by the Mortgages Trustee and/or the Funding 1 Security Trustee
and/or the Funding 2 Security Trustee (subject to such successor cash
manager having entered into an agreement with the relevant Account Bank
on substantially the same terms as this Agreement) in relation to the
operation of the Mortgages Trustee GIC Account.
4. WITHDRAWALS AND DEPOSITS
4.1 Subject always to the provisions of the Cash Management Agreement and
Clause 6.3 of the Bank Account Agreement, the Mortgages Trustee may on
any London Business Day give notice to the Mortgages Trustee GIC
Provider that it wishes to withdraw on such date all or part of the
Mortgages Trustee GIC Balance from the Mortgages Trustee GIC Account and
the Mortgages Trustee GIC
2
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 12 noon 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 The Mortgages Trustee may deposit sums in the Mortgages Trustee GIC
Account, to the extent permitted by the terms of the Cash Management
Agreement, and the Mortgages Trustee GIC Provider agrees to accept and
credit to the Mortgages Trustee GIC Account such sums in accordance with
the other terms hereof.
4.3 Subject always to the provisions of the Cash Management Agreement and the
Bank Account Agreement, the Cash Manager may, pursuant to Clause 4 of
the Cash Management Agreement, on any London Business Day (but only prior
to the service of an Intercompany Loan Acceleration Notice or a Master
Intercompany Loan Acceleration Notice), give notice to the Mortgages
Trustee GIC Provider that it wishes to withdraw on such date all or part
of the Mortgages Trustee GIC Balance from the Mortgages Trustee GIC
Account and the Mortgages Trustee 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
14:30 pm on any day it shall be deemed to have been received at the
opening of business on the next following London Business Day.
5. TERMINATION
5.1 Following termination of the Bank Account Agreement and/or closing of the
Mortgages Trustee GIC Account in accordance with the terms of the Bank
Account Agreement, the Mortgages Trustee may terminate this Agreement by
serving a written notice of termination on the Mortgages Trustee GIC
Provider.
6. WARRANTIES
6.1 The Mortgages Trustee GIC Provider warrants to the Mortgages Trustee, the
Funding 1 Security Trustee and the Funding 2 Security Trustee at the date
hereof, on each date on which an amount is credited to the Mortgages
Trustee GIC Account and on each Distribution Date, that it is duly
incorporated under the laws of Scotland and registered as a public
company under the Companies ▇▇▇ ▇▇▇▇ and is an institution authorised to
carry on banking business (including accepting deposits) under the
Financial Services and Markets ▇▇▇ ▇▇▇▇.
6.2 The Mortgages Trustee GIC Provider undertakes to notify the Mortgages
Trustee, the Funding 1 Security Trustee 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
Save as otherwise contemplated in this Agreement, the Cash Management
Agreement and the Mortgages Trust Deed, no party hereto (other than the
Funding 1 Security Trustee or the Funding 2 Security Trustee) may assign
or transfer any of its rights or obligations hereunder without the prior
written consent of the Funding 1 Security Trustee and the Funding 2
Security Trustee and unless each Rating Agency has confirmed in writing
to the Funding 1 Security Trustee and the Funding 2 Security Trustee that
such assignment or transfer would not adversely affect the then current
ratings of the Notes. In any event any assignee of the Mortgages Trustee
GIC Provider must be an institution authorised to carry on banking
business (including accepting deposits) under the Financial Services and
Markets ▇▇▇ ▇▇▇▇.
3
8. AGENCY
The Mortgages Trustee GIC Provider agrees and confirms that, unless
otherwise notified by the Mortgages Trustee, the Funding 1 Security
Trustee and the Funding 2 Security Trustee or the Cash Manager, as agent
of the Mortgages Trustee, may act on behalf of the Mortgages Trustee
under this Agreement.
9. INFORMATION
The Mortgages Trustee GIC Provider shall provide to the Funding 1
Security Trustee and/or the Funding 2 Security Trustee, or procure the
provision to the Funding 1 Security Trustee and/or the Funding 2 Security
Trustee, of such information and evidence in respect of any dealing
between the Mortgages Trustee and the Mortgages Trustee GIC Provider or
otherwise under or in relation to this Agreement as the Funding 1
Security Trustee and/or the Funding 2 Security Trustee may reasonably
request and the Mortgages Trustee hereby waives any right or duty of
confidentiality which it may have or which may be owed to it by the
Mortgages Trustee GIC Provider in respect of the disclosure of such
information and evidence pursuant to this Clause 9.
10. PAYMENTS AND WITHHOLDINGS
The parties agree that payments required to be made hereunder shall be
made in accordance with Clause 3 of the Bank Account Agreement and that
Clauses 14 and 15 of the Bank Account Agreement shall, to the extent that
they relate to the Mortgages Trustee 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
MORTGAGES TRUSTEE GIC PROVIDER) such that all payments to be made by the
Mortgages Trustee 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
Bank Account Agreement.
11. 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 the Mortgages Trustee: to Permanent Mortgages
Trustee Limited, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇) for the attention of the
Secretary;
(b) in the case of the Mortgages Trustee GIC Provider: to the Bank of
Scotland plc, Leeds Business Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇) for the attention of
the Associate Director with a copy to Halifax division of the Bank
of Scotland plc, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇ for the attention of the Head of Securitisation with copies
to: Bank of Scotland plc, c/o Halifax Division, Bradford
Business Centre, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇ for the attention of the Associate Director;
Bank of Scotland, Halifax Division, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number +44 (0) 1422
391777) for the attention of Mortgage Securitisation Manager; and
Bank of Scotland plc, Treasury Division, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for
the attention of Head of Capital Markets and Securitisation;
4
(c) in the case of the Cash Manager: to Bank of Scotland plc, Halifax
Division at ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇) for the attention of
Mortgage Securitisation Manager with a copy to Bank of Scotland
plc, Treasury Division, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(facsimile no. ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of the Head
of Capital Markets and Securitisation; and
(d) in the case of the Funding 1 Security Trustee and the Funding 2
Security Trustee: to The Bank of New York at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇)
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 11.
12. COUNTERPARTS AND SEVERABILITY
12.1 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.
12.2 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.
13. 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 parties to this Agreement for the better preservation
and enforcement of their rights under this Agreement but shall have no
responsibility for any of the obligations of, nor assume any liabilities
to, the Cash Manager, the Mortgages Trustee GIC Provider or the Mortgages
Trustee hereunder.
14. AMENDMENTS, WAIVERS AND CONTRACTS
14.1 Subject to 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, 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.
14.2 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.
5
15. 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) ▇▇▇ ▇▇▇▇, by any person who is not a party to this Agreement.
16. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with,
the laws of England.
17. 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. The Mortgages
Trustee irrevocably appoints Structured Finance Management Limited
located at ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, as its agent for
service of process.
IN WITNESS whereof the parties hereto have executed and delivered this
Agreement as a deed on the day and year first before written.
6
SIGNATORIES
MORTGAGE TRUSTEE
EXECUTED as a DEED on behalf of )
PERMANENT MORTGAGES )
TRUSTEE LIMITED, )
a company incorporated in Jersey, )
Channel Islands, by )
being a person who, )
in accordance with the laws of that )
territory is acting under the authority of )
the company in the presence of: )
Witness's signature:
Name:
Address:
CASH MANAGER AND MORTGAGES TRUSTEE GIC PROVIDER
EXECUTED as a DEED by )
BANK OF SCOTLAND PLC )
acting by its attorney )
in the presence of: )
Witness's signature:
Name:
Address:
FUNDING 1 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:
7
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:
8