Exhibit 10.1
FUNDING 2 GUARANTEED INVESTMENT CONTRACT
[*] 2006
PERMANENT FUNDING (NO. 2) LIMITED
AS FUNDING 2
AND
HALIFAX PLC
AS CASH MANAGER
AND
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
AS FUNDING 2 GIC PROVIDER
AND
THE BANK OF NEW YORK
AS SECURITY TRUSTEE
▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇ LLP
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation..........................................1
2. The Funding 2 GIC Account...............................................1
3. Interest................................................................2
4. Withdrawals and ▇▇▇▇▇▇▇▇................................................2
5. Termination.............................................................2
6. Warranties..............................................................2
7. Assignment..............................................................3
8. Agency..................................................................3
9. Information.............................................................3
10. Modification............................................................3
11. Payments and Withholdings...............................................3
12. Notices.................................................................3
13. Counterparts............................................................4
14. The Security Trustee....................................................4
15. Amendments..............................................................4
16. Exclusion of Third Party Rights.........................................5
17. Governing Law...........................................................5
18. Submission to Jurisdiction..............................................5
Signatories...................................................................6
THIS FUNDING 2 GUARANTEED INVESTMENT CONTRACT (this AGREEMENT) is made on [*]
2006
BETWEEN:
(1) PERMANENT FUNDING (NO. 2) LIMITED (registered number [*]), a private
limited company incorporated under the laws of England and Wales whose
registered office is at ▇▇▇▇▇▇▇▇▇ House, Guildhall Yard, London EC2V 5AE
(FUNDING 2);
(2) HALIFAX PLC (registered number 2367076), a public limited company
incorporated under the laws of England and Wales whose registered office
is at Trinity Road, Halifax, West Yorkshire HX1 2RG (acting in its
capacity as the CASH MANAGER);
(3) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a company established
by an Act of Parliament of Scotland in 1695 and having its head office at
The Mound, Edinburgh EH1 1YZ (acting in its capacity as the FUNDING 2 GIC
PROVIDER); and
(4) THE BANK OF NEW YORK, a New York banking corporation acting through its
offices at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (acting in its
capacity as SECURITY TRUSTEE).
WHEREAS:
(A) The Cash Manager has 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 is willing to provide such an account pursuant to
and on the terms of this Agreement and the Funding 2 Bank Account
Agreement.
IT IS ▇▇▇▇▇▇ AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Agreement and dated [*]
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
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.
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 Funding 2 Bank
Account Agreement, the Cash Management Agreement and the Funding 2 Deed
of Charge.
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3. INTEREST
3.1 Interest shall accrue daily on the Funding 2 GIC Balance and shall be
paid monthly on the first day of each month (or if such day is not a
London Business Day, the next succeeding London Business Day) 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 Security Trustee, then, on the date of such
Master Intercompany Loan Acceleration Notice, the Funding 2 GIC Provider
shall pay to the 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 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 Funding 2 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 (such notice to be countersigned by the
Security Trustee by way of acknowledgement of or consent to the contents
thereof) 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 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 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
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 Security Trustee may terminate
this Agreement by serving a written notice of termination on the Funding
2 GIC Provider.
6. WARRANTIES
6.1 The Funding 2 GIC Provider warrants to Funding 2 and the 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 established with limited liability under the laws of England
and Wales and is an institution authorised to carry on banking business
(including accepting deposits) under the Financial Services and Markets
Act 2000.
6.2 The Funding 2 GIC Provider undertakes to notify Funding 2 and the
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.
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7. ASSIGNMENT
7.1 Save as otherwise contemplated in this Agreement or the Cash Management
Agreement, no party hereto (other than the Security Trustee) may assign
or transfer any of its rights or obligations hereunder without the prior
written consent of the Security Trustee and unless each Rating Agency has
confirmed in writing to the 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 Act 2000.
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 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 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 Security Trustee, or
procure the provision to the 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
Security Trustee may reasonably request and Funding 2 hereby waives any
right or duty of confidentiality which it may have or which may be owed
to it by the Funding 2 GIC Provider in respect of the disclosure of such
information and evidence pursuant to this CLAUSE 9.
10. MODIFICATION
Save as otherwise provided herein, no amendment, modification or
variation of this Agreement shall be effective unless it is in writing
and signed by (or by some person duly authorised by) each of the parties
hereto and each of the Rating Agencies has confirmed that such amendment,
modification or variation will not adversely affect the then current
ratings of any of the Notes of the Master Issuer.
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 CLAUSE 14 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 CLAUSE 14 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
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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, ▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇▇'▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number +44 (020) 7398
6325) for the attention of the Secretary with a copy to HBOS
Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
(facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of Head of
Mortgage Securitisation and Covered Bonds; and
(b) in the case of the Funding 2 GIC Provider, to the Bank of Scotland
plc, Leeds Business Centre, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇
(facsimile number +44 (O) 1132 155804) for the attention of the
Associate Director with copies to: Bank of Scotland, c/o Halifax
plc, Bradford Business Centre, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number +44 (O) 1274 725290 for the attention of the
Associate Director; Halifax plc, Trinity Road, Halifax, West
Yorkshire HX1 2RG (facsimile number +44 (O) 1422 391777) for the
attention of Mortgage Securitisation Manager; and HBOS Treasury
Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile
number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the attention of Head of Capital
Markets and Securitisation;
(c) in the case of the Cash Manager, to Halifax plc at Trinity Road,
Halifax, West Yorkshire HX1 2RG (facsimile number +44 (O) 1422
391777) for the attention of the Mortgage Securitisation Manager
with a copy to HBOS Treasury Services plc, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (facsimile number ▇▇▇ (▇▇▇) ▇▇▇▇ ▇▇▇▇) for the
attention of the Head of Capital Markets and Securitisation; and
(d) in the case of the Security Trustee, to The Bank of New York, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number +44 (0) 20 7964
6061/6399) 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 12.
13. COUNTERPARTS
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.
14. THE SECURITY TRUSTEE
The 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 Security Trustee), any amendments to this
Agreement will be made only with the prior written consent of each party
to this Agreement.
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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) Act 1999, by any person who is not a party to this Agreement but
without prejudice to the rights of the 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
non-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 this Agreement on the day
and year first before written.
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SIGNATORIES
SIGNED for and on behalf of )
PERMANENT FUNDING (NO. 2) )
LIMITED )
by: )
SIGNED for and on behalf of )
HALIFAX PLC )
by: )
SIGNED for and on behalf of )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
by: )
SIGNED for and on behalf of )
THE BANK OF NEW YORK )
by: )
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