AMENDED AND RESTATED MORTGAGES TRUSTEE EXHIBIT 10.11
GUARANTEED INVESTMENT CONTRACT
21 NOVEMBER 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
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 21 November 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 21
November 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 CONSTRUCTION SCHEDULE) is expressly and specifically
incorporated into this Agreement and, accordingly, the expressions
defined in the Master Definitions and Construction Schedule (as so
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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 3 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 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 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 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
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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 Clauses
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 ▇▇▇ ▇▇▇▇.
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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 it relates 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 copies to: Bank of
Scotland plc, Halifax Division, Level 3, Lovell Park, ▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number +44 (0) 1132
357511) for the attention of Head of Mortgage Securitisation;
and Bank of Scotland plc, Treasury Division, ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇)
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, ▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇) ▇▇▇▇ ▇▇▇▇▇▇) for the
attention of Head of Mortgage Securitisation with a copy to
Bank of Scotland plc, Treasury
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Division, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile no.
▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of the Head of Mortgage
Securitisation and Covered Bonds; 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 +44
(▇▇▇) ▇▇▇▇ ▇▇▇▇) 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.
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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.
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SIGNATORIES
MORTGAGES TRUSTEE
EXECUTED as a DEED on behalf of ) /S/ ▇▇▇ ▇▇▇▇▇▇▇
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: /S/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address: ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
CASH MANAGER AND MORTGAGES TRUSTEE GIC PROVIDER
EXECUTED as a DEED by ) /S/ ▇▇▇ ▇▇▇▇▇▇▇
BANK OF SCOTLAND PLC )
acting by its attorney ) /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
in the presence of:
Witness's signature: /S/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address: ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
FUNDING 1 SECURITY TRUSTEE
EXECUTED as a DEED ) /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
for and on behalf of )
THE BANK OF NEW YORK )
by its authorised signatory
in the presence of: )
Witness's signature: /S/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address: ▇▇▇▇▇ & OVERY LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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FUNDING 2 SECURITY TRUSTEE
EXECUTED as a DEED ) /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
for and on behalf of )
THE BANK OF NEW YORK )
by its authorised signatory
in the presence of: )
Witness's signature: /S/ ▇▇▇▇▇ ▇▇▇▇
Name:
Address: ▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
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