Exhibit 4.2
DATED ___, 2002
ABBEY NATIONAL PLC
and
▇▇▇▇▇▇ FUNDING LIMITED
and
▇▇▇▇▇▇ TRUSTEES LIMITED
and
SPV MANAGEMENT LIMITED
------------------------------
AMENDED AND RESTATED MORTGAGES TRUST DEED
------------------------------
▇▇▇▇▇ & ▇▇▇▇▇
London
ICM:572242.1
TABLE OF CONTENTS
Clause Page
1. Definitions and Construction.........................................................................2
2. Creation of Mortgages Trust..........................................................................2
3. Conditions Precedent.................................................................................3
4. Acquisition by Funding of an Increased Interest in the Trust Property................................3
5. Initial Funding Share and Initial Seller Share.......................................................5
6. Acquisition by Seller of an Interest relating to Capitalised Interest................................6
7. Payment by the Seller to Funding of the Amount Outstanding under an Intercompany Loan................6
8. Adjustment of Funding Share Percentage and Seller Share Percentage on Distribution Dates.............7
9. Minimum Seller Share................................................................................10
10. Distribution of Revenue Receipts....................................................................11
11. Distribution of Principal Receipts..................................................................12
12. Allocation of Losses................................................................................14
13. Ledgers.............................................................................................14
14. Costs and Expenses of the Mortgages Trustee.........................................................15
15. Directions from Beneficiaries.......................................................................15
16. Early Termination of the Mortgages Trust............................................................16
17. Transfers...........................................................................................16
18. Covenants of the Mortgages Trustee..................................................................16
19. Power to Delegate...................................................................................18
20. Powers of Investment................................................................................18
21. Other Provisions regarding the Mortgages Trustee....................................................18
22. No retirement of Mortgages Trustee..................................................................19
23. Termination.........................................................................................20
24. Further Assurances..................................................................................20
25. Amendments, etc.....................................................................................20
26. Non Petition Covenant...............................................................................20
27. No Partnership or Agency............................................................................20
28. Calculations........................................................................................21
29. No Waiver; Remedies.................................................................................21
30. Execution in Counterparts; Severability.............................................................21
31. Confidentiality.....................................................................................21
32. Exclusion of third party rights.....................................................................22
33. Addresses for Notices...............................................................................22
34. Governing Law and Submission to Jurisdiction........................................................23
THIS AMENDED AND RESTATED MORTGAGES TRUST DEED is made on ___, 2002 between:
(1) ABBEY NATIONAL PLC (registered number 2294747), a public limited
company incorporated under the laws of England and Wales whose
registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in
its capacity as Seller, Beneficiary and Cash Manager;
(2) ▇▇▇▇▇▇ FUNDING LIMITED (registered number 3982428), a private limited
company incorporated under the laws of England and Wales whose
registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
(3) ▇▇▇▇▇▇ TRUSTEES LIMITED (registered number 3982431) a private limited
company incorporated under the laws of England and Wales whose
registered office is at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ in
its capacity as Mortgages Trustee; and
(4) SPV MANAGEMENT LIMITED (registered number 2548079) a private limited
company incorporated under the laws of England and Wales whose
registered office is at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the "SPV
MANAGEMENT").
WHEREAS:
(A) SPV Management agreed to constitute the Mortgages Trust in favour of
Funding and the Seller on the terms and subject to the conditions set
out in the Mortgages Trust Deed dated 25th July, 2000 (as amended
and/or restated from time to time, the "MORTGAGES TRUST DEED").
(B) The Mortgages Trustee agreed to hold the Trust Property as trustee for
the Beneficiaries upon, with and subject to the trusts, powers and
provisions of the Mortgages Trust Deed.
(C) The Seller carries on the business of, inter alia, originating
residential first mortgage loans to individual Borrowers in England,
Wales and Scotland and of managing and administering such mortgage
loans. The Seller assigned an initial portfolio of such mortgage loans
on 26th, July 2000 and new portfolios of such mortgages loans on
subsequent dates to the Mortgages Trustee pursuant to the Mortgage Sale
Agreement, which portfolio is held by the Mortgages Trustee as trustee
for the Beneficiaries upon, with and subject to the trusts, powers and
provisions of the Mortgages Trust Deed.
(D) On 29th November, 2000 the parties to the Mortgages Trust Deed agreed
to amend the terms of the Mortgages Trust Deed as set out in an
Amendment Agreement to the Mortgages Trust Deed to provide for
repayment by Funding of its obligations in respect of certain term
advances known as Scheduled Amortisation Term Advances.
(E) On 23rd May, 2001 the parties to the Mortgages Trust Deed again agreed
to amend the terms of the Mortgages Trust Deed as set out in the Second
Deed of Amendment to the Mortgages Trust Deed to exclude application of
the Trustee ▇▇▇ ▇▇▇▇.
(F) On 5th July, 2001 the parties to the Mortgages Trust Deed agreed to
amend and restate the terms of the Mortgages Trust Deed as set out in
the Amended and Restated Mortgages Trust Deed of the same date.
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(G) On 8th November, 2001 the parties to the Mortgages Trust Deed agreed to
amend and restate the terms of the Mortgages Trust Deed as set out in
the Amended and Restated Mortgages Trust Deed of the same date.
(H) The parties to the Mortgages Trust Deed have again agreed to amend and
restate the terms of the Mortgages Trust Deed as set out herein.
NOW THIS DEED WITNESSES:
1. DEFINITIONS AND CONSTRUCTION
1.1 The Amended and Restated Master Definitions and Construction Schedule
signed for the purposes of identification by ▇▇▇▇▇ & ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇ and May on ___, 2002 (as the same may be amended, varied or
supplemented from time to time with the consent of the parties hereto)
is expressly and specifically incorporated into this Agreement and,
accordingly, the expressions defined in the Amended and Restated 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 that Amended and Restated Master Definitions and
Construction Schedule.
1.2 This Deed amends and restates the Mortgage Trust Deed made on 25th
July, 2000 between the parties hereto as amended on 29th November, 2000
and 23rd May, 2001 and amended and restated on 5th July, 2001 and 8th
November, 2001 (the "PRINCIPAL DEED"). As of the date of this Deed, any
future rights or obligations (excluding such obligations accrued to the
date of this Deed) of a party under the Principal Deed shall be
extinguished and shall instead be governed by this Deed.
2. CREATION OF MORTGAGES TRUST
2.1 INITIAL TRUST PROPERTY
On 25th July, 2000 SPV Management settled on the date thereof on trust
the sum of (pound)100 (one hundred pounds) (the "INITIAL TRUST
PROPERTY") to be held on trust absolutely as to both capital and income
by the Mortgages Trustee for the benefit, as tenants in common, of the
Seller as to the Initial Seller Share Percentage and Funding as to the
Initial Funding Share Percentage.
2.2 CLOSING TRUST PROPERTY
Pursuant to the provisions of the Mortgage Sale Agreement, the Seller
assigned the Closing Trust Property on the Initial Closing Date.
2.3 FUTURE TRUST PROPERTY
From time to time and pursuant to the Mortgage Sale Agreement, the
Seller has assigned and intends to assign the Future Trust Property to
the Mortgages Trustee.
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2.4 TRUST PROPERTY
Subject to CLAUSE 3, the Mortgages Trustee shall hold the Trust
Property as to both capital and income on trust absolutely for Funding
(as to the Funding Share) and for the Seller (as to the Seller Share)
as tenants in common upon, with and subject to all the trusts, powers
and provisions of this Deed.
3. CONDITIONS PRECEDENT
3.1 The Initial Trust Property is held by the Mortgages Trustee on the
Mortgages Trust.
3.2 The Closing Trust Property shall be held by the Mortgages Trustee on
the Mortgages Trust upon the satisfaction of the following conditions
precedent:
(a) due execution and delivery of the Mortgage Sale Agreement by
all parties to it;
(b) due execution and delivery of this Deed by all parties to it;
and
(c) payment by Funding to the Seller of the Initial Consideration.
3.3 Any Future Trust Property shall be held by the Mortgages Trustee on the
Mortgages Trust subject to satisfaction of the conditions set out in
CLAUSE 4.1 of the Mortgage Sale Agreement for the transfer of New Loans
and their New Related Security to the Mortgages Trustee.
4. ACQUISITION BY FUNDING OF AN INCREASED INTEREST IN THE TRUST PROPERTY
4.1 OFFER TO ASSIGN AND CONDITIONS TO ASSIGNMENT
On not more than 60 nor less than 30 days' written notice, Funding may
offer to make a payment to the Seller so as to increase Funding's share
of the Trust Property on the Distribution Date specified in that
notice. Such offer shall only be made if the following conditions
precedent are satisfied on the Distribution Date:
(a) the Principal Deficiency Ledger does not have a debit balance
(which remains outstanding) as at the most recent Interest
Payment Date;
(b) no Note Event of Default or Intercompany Loan Event of Default
shall have occurred which is continuing or unwaived as at the
relevant Distribution Date;
(c) the Funding Security Trustee is not aware that the increase in
the Funding share of the Trust Property (or the corresponding
decrease in the Seller Share of the Trust Property) would
adversely affect the then current credit ratings by the Rating
Agencies (or any of them) of the Notes;
(d) the Notes have been issued by the relevant Issuer, the
subscription proceeds received on behalf of the relevant
Issuer and advanced by the relevant Issuer to Funding pursuant
to an Intercompany Loan Agreement, the proceeds of which will
be applied by Funding to make the payment referred to in the
notice on the relevant Distribution Date;
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(e) Funding has entered into, if necessary, a New Start-up Loan, a
New Variable Rate Swap, New Fixed Floating Rate Swap and a New
Tracker Rate Swap and adjustments have been made, if required,
to the Reserve Funds;
(f) receipt of a solvency certificate from the Seller in form and
content acceptable to the Mortgages Trustee, Funding and the
Funding Security Trustee;
(g) as at the relevant Distribution Date, the aggregate
Outstanding Principal Balance of Loans constituting the Trust
Property, in respect of which the aggregate amount in arrear
is more than three times the monthly payment then due, is less
than 5 per cent. of the aggregate Outstanding Principal
Balance of all Loans constituting the Trust Property;
(h) the short term, unsecured, unguaranteed and unsubordinated
debt obligations of the Seller are rated at least P-1 by
▇▇▇▇▇'▇, A-1 by Standard and Poor's and F1 by Fitch at the
time of, and immediately following, the payment made by
Funding on the relevant Distribution Date;
(i) the product of the WAFF and WALS for the Loans constituting
the Trust Property calculated on the relevant Distribution
Date in the same way as for the Initial Portfolio (or as
agreed by the Servicer and the Rating Agencies from time to
time) does not exceed the product of the WAFF and WALS for the
Loans constituting the Trust Property calculated on the most
recent previous Closing Date, plus [0.25] per cent.;
(j) the loan-to-value ratio of Loans in the Trust Property, after
application of the LTV Test on the relevant Distribution Date,
does not exceed the loan-to-value ratio (based on the LTV
Test) of Loans in the Trust Property on the most recent
previous Closing Date plus 0.50 per cent.; and
(k) the Reserve Fund has not been debited on or before the
relevant Distribution Date for the purposes of curing a
Principal Deficiency in respect of the Term Advances in
circumstances where the Reserve Fund has not been replenished
by a corresponding amount by the relevant Distribution Date.
Funding may not offer to make a payment to the Seller in consideration
of an increased share of the Trust Property after the Interest Payment
Date falling in October, 2010 if the option to redeem the Notes on the
Interest Payment Date in July, 2010 pursuant to Condition 5(D) of the
Terms and Conditions of the First Issuer Notes is not exercised.
4.2 COMPLETION OF ASSIGNMENT
Subject to satisfaction of the conditions precedent set out in CLAUSE
4.1 above and that offer is accepted by the Seller, Funding shall pay
to the Seller an amount equal to the increase in the Funding share of
the Trust Property and the Funding share of the Trust Property shall
increase by a corresponding amount, and the Seller Share shall decrease
by the same amount.
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4.3 AUDIT OF LOANS CONSTITUTING THE TRUST PROPERTY
If the short term, unsecured, unguaranteed and unsubordinated debt
obligations of the Seller fall below A-1 by Standard & Poor's, P-1 by
▇▇▇▇▇'▇ and/or F1 by Fitch, then the Beneficiaries shall appoint a firm
of independent auditors (approved by the Rating Agencies) to determine
whether the Loans and their Related Security (or any part of them)
constituting the Trust Property complied with the representations and
warranties set out in Schedule 1 of the Mortgage Sale Agreement as at
the date such Loans were assigned to the Mortgages Trustee. The costs
of such independent auditors shall be borne by the Beneficiaries pro
rata according to their respective current percentage shares in the
Trust Property.
4.4 TAX
(a) Any payment by Funding to the Seller to increase its share of
the Trust Property shall be inclusive of value added tax (if
any); and
(b) Any stamp duty or stamp duty reserve tax in respect of any
increase in Funding's share of the Trust Property shall be
payable by the Seller.
5. ACQUISITION BY SELLER OF AN INTEREST RELATING TO CAPITALISED INTEREST
5.1 Any increase in the Outstanding Principal Balance due to Capitalised
Interest will be allocated to the Funding Share of the Trust Property
and to the Seller Share of the Trust Property, based on respectively
the Funding Share Percentage and the Seller Share Percentage in the
Trust Property as calculated on the previous Distribution Date.
5.2 Prior to an Insolvency Event occurring in respect of the Seller, on
each Distribution Date the Seller shall make a cash payment to Funding
in an amount equal to its share of the Capitalised Interest in respect
of those Loans that are subject to Payment Holidays or Underpayments.
As a result of making such payment the Seller Share of the Trust
Property will increase by an amount equal to the amount paid to Funding
for Funding's Share of the Capitalised Interest, and Funding's Share of
the Trust Property will decrease by a corresponding amount. The cash
payment shall be made in accordance with CLAUSE 5.4 below.
5.3 If an Insolvency Event occurs in respect of the Seller, then the Seller
may acquire from Funding its share of the Capitalised Interest in the
same manner as is contemplated in CLAUSE 5.2, but it is not obliged to
do so.
5.4 In respect of the cash payment to be made by the Seller pursuant to
CLAUSE 5.2, the Seller hereby directs the Mortgages Trustee to deduct
from the Seller's Share of the Mortgages Trust Available Revenue
Receipts (allocated to the Seller pursuant to CLAUSE 10.2 of this Deed)
an amount equal to such cash payment and to pay the same to Funding in
satisfaction of the Seller's obligations under CLAUSE 5.2. To the
extent that the Seller's Share of the Mortgages Trust Available Revenue
Receipts is less than the amount required to be paid by it pursuant to
CLAUSE 6.2, then the Seller shall pay an amount equal to the shortfall
directly to Funding from its own resources.
5.5 Any payment by the Seller pursuant to CLAUSE 5.2 shall be exclusive of
value added tax (if any).
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6. PAYMENT BY THE SELLER TO FUNDING OF THE AMOUNT OUTSTANDING UNDER AN
INTERCOMPANY LOAN
6.1 CONDITIONS PRECEDENT TO ACCEPTANCE OF OFFER
Funding may accept any offer by the Seller to pay the amount
outstanding under any Series of an Intercompany Loan (referred to in
this CLAUSE 6 as the "RELEVANT INTERCOMPANY LOAN"), but only if:
(a) the Outstanding Principal Balance of the relevant Series of
the Intercompany Loan is less than 10 per cent. of its
Outstanding Principal Balance immediately after that relevant
Intercompany Loan was drawn by Funding;
(b) the Security Trustee has received written confirmation from
each of the Rating Agencies that there would not be any
adverse effect on the then current ratings of the Notes if
Funding accepted the offer;
(c) Funding would receive the payment from the Seller on a Funding
Interest Payment Date (and exclusive of VAT); and
(d) Funding will apply the proceeds of the payment to repay the
relevant Series of the Intercompany Loan and the relevant
Issuer has confirmed to Funding that on that Funding Interest
Payment Date it will use the proceeds of the relevant payment
to repay the corresponding classes of Notes.
6.2 ADJUSTMENT TO SHARES IF OFFER ACCEPTED
If Funding accepts the offer as described in CLAUSE 7.1 above, then the
Funding Share of the Trust Property shall decrease by an amount
corresponding to the amount paid by the Seller and the Seller Share of
the Trust Property shall increase by the same amount.
7. INITIAL FUNDING SHARE AND INITIAL SELLER SHARE
7.1 INITIAL FUNDING SHARE
The "INITIAL FUNDING SHARE" of the Trust Property was (pound)35.25 at
25th July, 2000 and (pound)2,256,000,035.25 at the Initial Closing Date
and the "INITIAL FUNDING SHARE PERCENTAGE" was the Initial Funding
Share expressed as a percentage of the Trust Property at such date,
that is to say, 35.25 per cent. References herein to the "FUNDING
SHARE" shall mean, prior to the first Distribution Date, the Initial
Funding Share and thereafter shall mean the Current Funding Share (as
defined below).
7.2 INITIAL SELLER SHARE
The "INITIAL SELLER SHARE" of the Trust Property was the sum which
remains of the Trust Property after deduction of the Initial Funding
Share. As at 25th July, 2000, the Initial Seller Share was (pound)64.75
and the "INITIAL SELLER SHARE PERCENTAGE" was equal to 100 per cent.
minus the Initial Funding Share Percentage, that is to say, 64.75 per
cent. The amount of the Initial Seller Share and the Initial Seller
Share Percentage on the Initial Closing was determined immediately
after the Initial Closing Date. References herein to the "SELLER
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SHARE" shall mean, prior to the first Distribution Date, the Initial
Seller Share and thereafter shall mean the Current Seller Share (as
defined below).
7.3 ROUNDING OF PERCENTAGE SHARES
Except for the Initial Closing Date (and unless otherwise agreed by the
Beneficiaries), the Funding Share Percentage and the Seller Share
Percentage shall be calculated to five decimal places.
8. ADJUSTMENT OF FUNDING SHARE PERCENTAGE AND SELLER SHARE PERCENTAGE ON
DISTRIBUTION DATES
8.1 DISTRIBUTION
On each Distribution Date, excluding for the avoidance of doubt, the
Initial Closing Date, the Funding Share Percentage and the Seller Share
Percentage will be recalculated by the Cash Manager (on behalf of the
Mortgages Trustee and the Beneficiaries) based on the aggregate
Outstanding Principal Balance of the Loans constituting the Trust
Property (as adjusted from time to time) on the second London Business
Day immediately preceding that Distribution Date. On each Distribution
Date, the Mortgages Trustee will distribute Principal Receipts and
Revenue Receipts in accordance with CLAUSES [10] and [11] hereof.
8.2 CURRENT FUNDING SHARE PERCENTAGE
On each Distribution Date (the "RELEVANT DISTRIBUTION DATE") or on the
date that the Mortgages Trust terminates, the "CURRENT FUNDING SHARE
PERCENTAGE" will be an amount, expressed as a percentage (calculated to
an accuracy of three decimal places (rounded upwards)), equal to:
A - B - C + D + E + F
--------------------- x 100
G
where,
A = the Current Funding Share as at the immediately preceding
Distribution Date (or, in the case of the first Distribution
Date, the Initial Funding Share as at the Initial Closing
Date);
B = the amount of any Principal Receipts distributed to Funding on
that Relevant Distribution Date in accordance with the
provisions described in CLAUSE 9 below;
C = the amount of any Losses sustained on the Loans in the period
from the last Distribution Date and ending on the Relevant
Distribution Date and allocated to Funding (based on the
Funding Share Percentage thereof calculated on the immediately
preceding Distribution Date or, in the case of the first
Distribution Date, the Initial Funding Share Percentage) in
the Distribution Period ending on the Relevant Distribution
Date;
D = an amount equal to any consideration (excluding Deferred
Consideration) paid by Funding to the Seller in relation to
any New Loans assigned to the Mortgages Trustee on the
Relevant Distribution Date;
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E = an amount equal to any consideration (excluding Deferred
Consideration) paid by Funding to the Seller in relation to
any acquisition by Funding from the Seller on the Relevant
Distribution Date of a portion of the then Current Seller
Share of the Trust Property;
F = an amount equal to any Capitalised Interest accruing on a loan
due to Borrowers taking Payment Holidays and/or making
Underpayments since the last Distribution Date less the amount
paid by the Seller on the Relevant Distribution Date to
acquire an interest in the Trust Property in accordance with
CLAUSE 5 above; and
G = the aggregate Outstanding Principal Balance of all the Loans
constituting the Trust Property as at the Relevant
Distribution Date including (i) after making the
distributions, allocations and additions referred to in (B),
(C), (D), (E) and (F) above, (ii) after taking account of any
distributions of Principal Receipts to Funding and the Seller,
the amount of any Losses allocated to Funding and the Seller
and the amount of any other additions or subtractions to the
Trust Property and (ii) after making the adjustments referred
to paragraphs (a) to (e) (inclusive) of CLAUSE 8.4 below.
8.3 CURRENT FUNDING SHARE
The "CURRENT FUNDING SHARE" will be an amount equal to:
A - B - C + D + E + F
where "A", "B", "C", "D", "E" and "F" have the meanings specified in
CLAUSE 6.2 above.
8.4 ADJUSTMENTS TO TRUST PROPERTY
On each Relevant Distribution Date the aggregate Outstanding Principal
Balance of the Loans constituting the Trust Property shall be reduced
or, as the case may be, deemed to be reduced for the purposes of the
calculation set out in "G" above, if any of the following events has
occurred in the Distribution Period ending on the Relevant Distribution
Date:
(a) any Borrower exercises a right of set-off in relation to Loans
constituting part of the Trust Property so that the amount of
principal and/or interest owing under a loan is reduced but no
corresponding amount is received by the Mortgages Trustee; in
which event the total amount of Trust Property shall be
reduced by an amount equal to the amount set-off; and/or
(b) a Loan or (as applicable) its Related Security (i) does not
comply with the Loan Warranties in the Mortgage Sale Agreement
or (ii) is the subject of a Product Switch or a Further
Advance or other obligation of the Seller to repurchase
(including, for the avoidance of doubt, any obligation to
repurchase pursuant to CLAUSE 7.4 of the Mortgage Sale
Agreement), and if the Seller fails to repurchase the Loan or
Loans under the relevant Mortgage Account and their Related
Security as required by the terms of the Mortgage Sale
Agreement, then the Trust Property shall be deemed to be
reduced for the purposes of the calculation in "G" above by an
amount equal to the Outstanding Principal Balance of the
relevant Loan or Loans under the relevant Mortgage Account
together with Arrears of Interest and Accrued Interest; and/or
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(c) the Seller would be required to repurchase a Loan and its
Related Security in accordance with the terms of the Mortgage
Sale Agreement, but such Loan and its Related Security are not
capable of repurchase, in which case the Trust Property shall
be deemed to be reduced for the purposes of the calculation in
"G" above by an amount equal to the Outstanding Principal
Balance of the relevant Loan or Loans under the relevant
Mortgage Account together with Arrears of Interest and Accrued
Interest; and/or
(d) the Seller materially breaches any other obligation or
warranty under the Mortgage Sale Agreement and/or (for so long
as it is the Servicer) the Servicing Agreement, in which event
the aggregate Outstanding Principal Balance of Loans
constituting the Trust Property shall be deemed for the
purposes of the calculation in "G" above to be reduced by an
amount equivalent to all losses, costs, liabilities, claims,
expenses and damages incurred by the Beneficiaries as a result
of such breach; and/or
(e) the Seller Share of Mortgages Trustee Revenue Receipts is less
than the Loss Amount (as defined in CLAUSE 8.3) payable to the
Mortgages Trustee and/or Funding in accordance with CLAUSE
8.3, in which case the Trust Property shall be deemed to be
reduced for the purposes of the calculation in "G" above by an
amount equal to the shortfall in the Loss Amount.
The reductions and deemed reductions set out in paragraph (a), (b) (c),
(d) and (e) of CLAUSE 6.4 above shall be made to the Seller Share only
of the Trust Property (or for the purposes of calculating the Seller
Share of the Trust Property as the case may be) until the Seller Share
is zero. If at, or any time after the Initial Closing Date the
Mortgages Trustees holds, or there is held to its order, or it
receives, or there is received to its order, any property, interest,
right or benefit relating to any Loan and its Related Security which is
or has been subject to any matter described in CLAUSE 6.4(A) the
Mortgages Trustee will remit, assign or transfer the same to the
Seller, as the case may require, and until it does so or to the extent
that the Mortgage Trustee is unable to effect such remittance,
assignment or transfer, the Mortgages Trustee will hold such property,
interest, right or benefit and/or the proceeds thereof upon trust
absolutely for the Seller (separate from the Mortgages Trust).
8.5 CURRENT SELLER SHARE PERCENTAGE
On each Distribution Date, the "CURRENT SELLER SHARE PERCENTAGE" will
be an amount equal to:
100% - Current Funding Share Percentage.
8.6 CURRENT SELLER SHARE
The "CURRENT SELLER SHARE" will be an amount equal to:
The total amount of trust property - Current Funding Share.
8.7 FUNDING SHARE/SELLER SHARE
Neither the Funding Share nor the Seller Share may be reduced below
zero. At all times the Funding Share Percentage and the Seller Share
Percentage shall be equal to 100 per cent. of the Trust Property.
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9. MINIMUM SELLER SHARE
9.1 INITIAL MINIMUM SELLER SHARE
The Seller Share of the Trust Property includes an amount equal to the
Minimum Seller Share. Unless and until the Funding Share of the Trust
Property is in an amount equal to zero or an Asset Trigger Event
occurs, the Seller will not be entitled to receive Principal Receipts
which would reduce the Seller Share of the Trust Property to an amount
less than the Minimum Seller Share and the Seller consents and directs
the Mortgages Trustee accordingly.
9.2 FLUCTUATION OF MINIMUM SELLER SHARE ON EACH DISTRIBUTION DATE
At the Initial Closing Date, the Minimum Seller Share will be
(pound)256,000,000. The amount of the Minimum Seller Share will be
recalculated on each Distribution Date in accordance with the following
formula:
X + Y + Z
where:
X = 4.0% of the aggregate Outstanding Principal Balance of all
Loans comprised in the Trust Property;
Y = the product of: (p x q) x r where:
p = 8%;
q = the "FLEXIBLE DRAW CAPACITY", being an amount equal
to the excess of (i) the maximum amount that
Borrowers are entitled to draw under Flexible Loans
included in the Trust Property (whether or not drawn)
over (ii) the aggregate principal balance of actual
Flexible Loan advances made to Borrowers in the Trust
Property on the relevant Distribution Date (but
excluding the Initial Advances made thereunder); and
r = 3; and
Z = ___. [Banks to advise]
9.3 RECALCULATION OF MINIMUM SELLER SHARE FOLLOWING OCCURRENCE OF
EXCEPTIONAL EVENTS
The calculation of the Minimum Seller Share in accordance with CLAUSE
7.2 above will be recalculated with the agreement of the parties
hereto, the Funding Security Trustee and the Rating Agencies if either
(i) the Seller merges or otherwise combines its business with another
bank or other financial institution so as to increase the risks
associated with Borrowers holding deposits in Abbey National accounts
or (ii) the aggregate amount of the obligations to pay Delayed
Cashbacks constitutes more than 1 per cent. of the value of the Trust
Property.
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10. ALLOCATION AND DISTRIBUTION OF REVENUE RECEIPTS
10.1 ALLOCATION AND DISTRIBUTION OF THIRD PARTY AMOUNTS
Pursuant to the Cash Management Agreement, the Cash Manager (at the
direction of the Mortgages Trustee on behalf of the Beneficiaries at
their direction and with their consent) will deduct, as and when
identified, Third Party Amounts from the Revenue Receipts standing to
the credit of the Mortgages Trustee GIC Account, and pay over the same
to the proper recipients thereof. The Mortgages Trustee and the
Beneficiaries hereby consent to such deductions.
10.2 ALLOCATION AND DISTRIBUTION OF MORTGAGES TRUSTEE AVAILABLE REVENUE
RECEIPTS
On each Distribution Date the Cash Manager (at the direction of the
Mortgages Trustee and on behalf of the Beneficiaries at their direction
and with their consent) will distribute Mortgages Trustee Available
Revenue Receipts as follows:
(a) firstly, in or towards satisfaction pro rata according to the
respective amounts thereof of:
(i) any costs, charges, liabilities and expenses then due
or to become due to the Mortgages Trustee under the
provisions of this Deed together with VAT thereon as
provided herein (if payable); and
(ii) any amounts due and payable by the Mortgages Trustee
to third parties in respect of the Mortgages Trust
and incurred without breach by the Mortgages Trustee
of the documents to which it is a party (and for
which payment has not been provided for elsewhere),
including amounts due to H.M Customs and Excise
and/or to the Inland Revenue or any other taxation
authority which has jurisdiction over the Trust
Property or the Mortgages Trustee in respect of any
stamp, issue, registration, documentary and other
fees, duties and taxes (including interest and
penalties) payable by the Mortgages Trustee in
connection with (i) the execution and delivery of
this Deed; (ii) any action to be taken by or on
behalf of the Mortgages Trustee to enforce or to
resolve any doubt concerning or, for any other
purpose in relation to, the Mortgages Trust Deed; and
(iii) any such tax which is primarily due from either
or both of Abbey National and Funding in their
capacities as Beneficiaries (and, for the avoidance
of doubt, only in such capacities) in circumstances
where the Mortgages Trustee has made a payment of
such tax (or part thereof) by reason of a failure by
Abbey National or Funding to discharge their primary
liability in respect of such tax;
(b) secondly, in or towards satisfaction of any remuneration then
due and payable to the Servicer and any costs, charges,
liabilities and expenses then due or to become due to the
Servicer under the provisions of the Servicing Agreement,
together with VAT thereon as provided therein; and
(c) thirdly, subject to CLAUSE 10.3 below, to pay Funding and the
Seller the Funding Share and the Seller Share respectively of
any remaining Mortgages Trustee Available Revenue Receipts,
calculated by multiplying the total amount of such remaining
Mortgages Trustee Available Revenue Receipts by the Current
Funding
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Share Percentage (calculated on the immediately preceding
Distribution Date), which product shall be allocated to
Funding, and the remaining Mortgages Trustee Available Revenue
Receipts which shall be allocated to the Seller (subject to
deducting any amounts due to the Mortgages Trustee and/or
Funding by way of set-off pursuant to Clause 7.3 of the
Mortgage Sale Agreement).
10.3 If, as a result of any of the matters referred to in paragraphs (a),
(b), (c) or (d) of Clause 7.4 of the Mortgage Sale Agreement, the
Mortgages Trustee and/or Funding suffers or incurs any costs, expenses,
losses or other claims in connection with any recovery of interest on
the Loans to which the Seller, the Mortgages Trustee or Funding was not
entitled or could not enforce (referred to in this Clause 8.3 as the
"LOSS AMOUNT"), then:
(a) the Seller Share of Mortgages Trustee Revenue Receipts shall
be reduced by an amount equal to the Loss Amount; and
(b) from the amount deducted from the Seller Share of the
Mortgages Trustee Revenue Receipts referred to in paragraph
(a) above:
(i) an amount will be paid to the Mortgages Trustee equal
to the Loss Amount incurred by the Mortgages Trustee;
and
(ii) an amount will be paid to Funding equal to the Loss
Amount incurred by Funding.
[To be discussed]
11. ALLOCATION AND DISTRIBUTION OF PRINCIPAL RECEIPTS
11.1 CALCULATION OF PRINCIPAL RECEIPTS:
On each Relevant Distribution Date, prior to distributing Principal
Receipts, the Cash Manager shall ascertain:
(i) the amount of Mortgages Trust Available Principal Receipts:
(ii) whether the Cash Accumulation Period has started or would
start during the immediately succeeding Distribution Period in
respect of any Bullet Term Advance (the Cash Accumulation
Period being calculated separately for each Bullet Term
Advance);
(iii) whether amounts are outstanding in respect of any Pass-Through
Term Advances or Scheduled Amortisation Term Advances that are
then due and payable; and
(iv) whether the Scheduled Amortisation Period has started or would
start during the immediately succeeding Distribution Period in
respect of any Scheduled Amortisation Term Advance.
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11.2 ALLOCATION AND DISTRIBUTION OF PRINCIPAL RECEIPTS PRIOR TO THE
OCCURRENCE OF A TRIGGER EVENT
Prior to the occurrence of a Trigger Event, on each Distribution Date,
the Cash Manager (at the direction of the Mortgages Trustee acting on
behalf of the Beneficiaries at their direction and with their consent)
shall apply Principal Receipts as provided in this CLAUSE 9:
(a) (subject to the terms of paragraphs (c) and (d) below), until
the start of a Cash Accumulation Period and during the period
between the end of a Cash Accumulation Period and the start of
the next Cash Accumulation Period, all Principal Receipts
shall be paid to the Seller until the Seller Share of the
Trust Property is equal to the Minimum Seller Share (as
determined on the previous Distribution Date);
(b) from and including the start of a Cash Accumulation Period,
all Principal Receipts shall be paid to Funding (but not in an
aggregate amount that would exceed the Current Funding Share
of the Trust Property) until an amount equal to the relevant
Bullet Amount has been accumulated by Funding, as shown on the
Cash Accumulation Ledger;
(c) from and including the date when:
(i) the Cash Accumulation Period in respect of any
outstanding Bullet Term Advance has not started; and
(ii) amounts are outstanding in respect of one or more
Pass-Through Term Advances that are due and payable
(the "PAYABLE PASS-THROUGH TERM ADVANCES") and/or one
or more Scheduled Amortisation Term Advances that are
due and payable (the "PAYABLE SCHEDULED AMORTISATION
TERM ADVANCES") under an Intercompany Loan Agreement
("INTERCOMPANY LOAN AGREEMENT X"); and/or
(iii) the Scheduled Amortisation Period has started under
an Intercompany Loan,
the Cash Manager will distribute Principal Receipts to Funding
in an amount calculated as follows:
Outstanding Principal Balance of
Funding Share x Principal x Intercompany Loan Agreement X.
Percentage Receipts --------------------------------------------
Aggregate Outstanding Principal Balance of
all outstanding Intercompany Loans,
until the Payable Pass-Through Term Advances and/or, as
applicable, the Payable Scheduled Amortisation Term Advances
are fully repaid. Subject to paragraph (d) below, any excess
Principal Receipts will be paid to the Seller; and
(d) if on the last Distribution Date in a Scheduled Amortisation
Period, Funding has not received sufficient Principal Receipts
(calculated in accordance with paragraph (c) above) in order
to repay the Scheduled Amortisation Amounts due on the
relevant Payable Scheduled Amortisation Term Advances on the
immediately succeeding Interest Payment Date, then the Cash
Manager on behalf of the Mortgages Trustee shall distribute
Principal Receipts to Funding in an amount equal to the
shortfall (but not in an aggregate amount that would exceed
the Current Funding Share of the Trust
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Property), which Funding will apply solely towards repayment
of the relevant Payable Scheduled Amortisation Term Advance on
the immediately succeeding Interest Payment Date.
11.3 ALLOCATION AND DISTRIBUTION OF PRINCIPAL RECEIPTS FOLLOWING THE
OCCURRENCE OF AN ASSET TRIGGER EVENT
After the occurrence of an Asset Trigger Event, all Principal Receipts
will be distributed pro rata and pari passu between Funding and the
Seller according to the Current Funding Share Percentage of the Trust
Property and the Current Seller Share Percentage of the Trust Property
respectively (and, for the avoidance of doubt, such payments may reduce
the Current Seller Share to an amount less than the Minimum Seller
Share) until the Funding share of the Trust Property is zero. When the
Funding Share of the Trust Property is zero, the remaining Principal
Receipts (if any) will be allocated to the Seller.
11.4 ALLOCATION AND DISTRIBUTION OF PRINCIPAL RECEIPTS FOLLOWING THE
OCCURRENCE OF A NON-ASSET TRIGGER EVENT
After the occurrence of a Non-Asset Trigger Event (where an Asset
Trigger Event has not occurred), all Principal Receipts will be paid to
Funding until the Funding Share of the Trust Property is zero and will
thereafter be paid to the Seller.
11.5 ALLOCATION AND DISTRIBUTION OF PRINCIPAL RECEIPTS FOLLOWING ENTRY BY
FUNDING INTO A NEW TERM ADVANCE
If a New Issuer makes a New Term Advance to Funding pursuant to a New
Intercompany Loan Agreement, then the parties hereto shall amend the
terms of CLAUSE 9 as required to reflect the repayment provisions of
that New Term Advance. For the avoidance of doubt, the parties hereto
shall amend the terms of the Trigger Events if required to do so by the
Rating Agencies as a result of a New Issue.
12. ALLOCATION OF LOSSES
Subject as provided herein (and in particular, CLAUSE 6), all Losses
sustained on the Loans during a Distribution Period shall be applied in
reducing pro rata both the Funding Share and the Seller Share of the
Trust Property on each Relevant Distribution Date by multiplying the
Losses in the relevant Distribution Period by the Current Funding Share
Percentage, (as calculated on the immediately preceding Distribution
Date), the product of which shall be allocated to Funding, and the
remainder of such Losses shall be allocated to the Seller.
13. LEDGERS
The Mortgages Trustee shall maintain, or shall procure that there are
maintained, the following Mortgages Trustee Ledgers:
(a) the Principal Ledger, which shall record all receipts of
Principal Receipts and distribution of the same to Funding and
the Seller;
(b) the Revenue Ledger, which shall record all receipts of Revenue
Receipts and distribution of the same to Funding and the
Seller;
(c) the Losses Ledger, which shall record Losses in relation to
the Loans; and
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(d) the Funding Share/Seller Share Ledger which shall record the
Current Funding Share, the Current Seller Share of the Trust
Property, the Current Funding Share Percentage and the Current
Seller Share Percentage.
14. COSTS AND EXPENSES OF THE MORTGAGES TRUSTEE
The Mortgages Trustee shall be entitled to charge and be remunerated
for the work undertaken by it as trustee of the trusts created by this
Deed. The remuneration shall be on such terms (if any) as the Mortgages
Trustee may from time to time agree with the Seller and Funding in
writing. In default of such agreement, Funding and the Seller shall
indemnify the Mortgages Trustee from time to time with such regularity
as is reasonably agreed between the parties, of the documentable costs
and expenses directly and properly incurred by the Mortgages Trustee in
performing its obligations hereunder together with any amounts in
respect of Irrecoverable VAT incurred in respect of such costs and
expenses. The cost of such indemnity shall be paid in accordance with
the priority of payments set out in CLAUSE 8 of this Deed.
15. DIRECTIONS FROM BENEFICIARIES
15.1 SERVICING AGREEMENT AND CASH MANAGEMENT AGREEMENT
On the Initial Closing Date the Mortgages Trustee shall enter into the
Servicing Agreement and the Cash Management Agreement.
15.2 DIRECTIONS FROM BENEFICIARIES
Subject to CLAUSE 13.3 below, the Mortgages Trustee covenants with the
Seller and Funding that the Mortgages Trustee shall take all necessary
steps and do everything which both Funding and the Seller (acting
together) may reasonably request or direct it to do in order to give
effect to the terms of this Deed or the other Transaction Documents to
which the Mortgages Trustee is a party.
15.3 Funding and the Seller covenant with each other that neither shall
direct or request the Mortgages Trustee to do any act or thing which
breaches the terms of, or is otherwise expressly dealt with (such that
the Mortgages Trustee has no discretion) by, any of the Transaction
Documents.
15.4 NO REQUIREMENT TO ACT
The Mortgages Trustee will not be bound and shall have no power to take
any proceedings, actions or steps under or in connection with any of
this Deed or the other Transaction Documents to which it is a party
unless:
(a) it shall have been directed to do so by the Beneficiaries or
it is required to do so under any express provision of this
Deed or the other Transaction Documents (but subject to CLAUSE
13.2 in respect of conflict of directions); and
(b) it shall have been indemnified to its satisfaction against all
liabilities, proceedings, claims and demands to which it may
be or become liable and all costs, charges and expenses which
may be incurred by it in connection therewith and the terms of
such
16
indemnity may include the provision of a fighting fund,
non-recourse loan or other similar arrangement.
15.5 COVENANT OF THE MORTGAGES TRUSTEE
Subject to CLAUSE 13.2, the Mortgages Trustee covenants with each of
the Seller and Funding to exercise all of its rights arising under the
Trust Property (including without limitation any rights of enforcement)
for the benefit of and on behalf of the Beneficiaries.
16. EARLY TERMINATION OF THE MORTGAGES TRUST
On giving not more than 61 nor less than 31 days' notice to Funding,
the Seller may pay to Funding the Termination Price if the aggregate
Outstanding Principal Balance under all Intercompany Loan Agreements is
at any time less than 10 per cent. of the aggregate Outstanding
Principal Balance of all Intercompany Loan Agreements as at the
respective drawdown dates thereof. Thereafter, the Mortgages Trustee
shall hold the Trust Property for the Seller absolutely, freed and
released from the Mortgages Trust.
17. TRANSFERS
17.1 FUNDING SHALL NOT ASSIGN
Subject to the right of Funding (or the Funding Security Trustee or a
Receiver on its behalf) to sell the Funding Share of the Trust Property
following the service of an Intercompany Loan Enforcement Notice (which
right is hereby conferred), Funding covenants with the Seller that it
shall not, and shall not purport to, sell, assign, transfer, convey,
charge, declare a trust over, create any beneficial interest in, or
otherwise dispose of the Funding Share in the Trust Property, or any of
Funding's rights, title and interest or benefit in any of the Portfolio
or the Trust Property to a third party, other than pursuant to the
terms of the Transaction Documents (including for the avoidance of
doubt, the Funding Deed of Charge).
17.2 SELLER SHALL NOT ASSIGN
The Seller covenants with Funding that it shall not, and shall not
purport to, sell, assign, transfer, convey, charge, declare a trust
over, create any beneficial interest in, or otherwise dispose of the
Seller Share in the Trust Property or any of the Seller's rights, title
and interest or benefit in the Trust Property to a third party, other
than pursuant to the terms of the Transaction Documents.
18. COVENANTS OF THE MORTGAGES TRUSTEE
Save with the prior written consent of the Beneficiaries or as provided
in or envisaged by this Deed and the other Transaction Documents to
which the Mortgages Trustee is a party, the Mortgages Trustee shall
not, so long as it is acting as Mortgages Trustee hereunder:
(a) NEGATIVE PLEDGE
create or permit to subsist any mortgage, standard security
pledge, lien, charge or other security interest whatsoever
(unless arising by operation of law), upon the whole or any
part of its assets (including any uncalled capital) or its
undertakings, present or future;
17
(b) DISPOSAL OF ASSETS
transfer, sell, lend, part with or otherwise dispose of, or
deal with, or grant any option or present or future right to
acquire any of its assets or undertakings or any interest,
estate, right, title or benefit therein or thereto or agree or
attempt or purport to do so;
(c) EQUITABLE INTEREST
permit any person other than the Beneficiaries to have any
equitable or beneficial interest in any of its assets or
undertakings or any interest, estate, right, title or benefit
therein;
(d) BANK ACCOUNTS
have an interest in any bank account, other than as set out in
the Transaction Documents;
(e) RESTRICTIONS ON ACTIVITIES
carry on any business other than as described in this Deed and
the Mortgage Sale Agreement;
(f) BORROWINGS
incur any indebtedness in respect of borrowed money whatsoever
or give any guarantee or indemnity in respect of any such
indebtedness;
(g) MERGER
consolidate or merge with any other person or convey or
transfer its properties or assets substantially as an entirety
to any other person;
(h) EMPLOYEES OR PREMISES
have any employees or premises or subsidiaries;
(i) FURTHER SHARES
issue any further shares; or
(j) UNITED STATES ACTIVITIES
engage in any activities in the United States (directly or
through agents) or derive any income from United States
sources as determined under United States income tax
principles or hold any property if doing so would cause it to
be engaged or deemed to be engaged in a trade or business
within the United States as determined under United States tax
principles.
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19. POWER TO DELEGATE
19.1 POWER TO DELEGATE
Subject to CLAUSE 17.2, the Mortgages Trustee may (notwithstanding any
rule of law or equity to the contrary) delegate (revocably or
irrevocably and for a limited or unlimited period of time) the
performance of all or any of its obligations and the exercise of all or
any of its powers under this Deed or imposed or conferred on it by law
or otherwise to any person or body of persons fluctuating in number
selected by it and any such delegation may be by power of attorney or
in such other manner as the Mortgages Trustee may think fit and may be
made upon such terms and conditions (including the power to
sub-delegate) as the Mortgages Trustee may think fit.
19.2 NO FURTHER APPOINTMENTS
Notwithstanding the provisions of CLAUSE 17.1, the Mortgages Trustee
shall not appoint any agent, attorney or other delegate having power to
act in respect of the Trust Property unless it is directed in writing
to do so by the Beneficiaries. The appointment of any agent, attorney
or other delegate hereunder above shall terminate immediately upon the
occurrence of a Trigger Event.
20. POWERS OF INVESTMENT
Save as expressly provided for in this Deed, the Mortgages Trustee
Guaranteed Investment Contract and the Bank Account Agreement, the
Mortgages Trustee shall have no further or other powers of investment
with respect to the Trust Property and neither the Trustee Investments
Act 1961 nor any other provision relating to trustee powers of
investment implied by statute or general law shall apply to the
Mortgages Trust and, for the avoidance of doubt, the statutory power to
accumulate income conferred on trustees by Section 31 of the Trustee
Act 1925 is expressly excluded.
21. OTHER PROVISIONS REGARDING THE MORTGAGES TRUSTEE
21.1 NO ACTION TO IMPAIR TRUST PROPERTY
Except for actions expressly authorised by this Deed, the Mortgages
Trustee shall take no action reasonably likely to impair the interests
of the Beneficiaries in any Trust Property now existing or hereafter
created or to impair the value of any Loan or its Related Security
subject to the Mortgages Trust.
21.2 LITIGATION
The Mortgages Trustee must not prosecute or defend any legal or other
proceedings anywhere in the world (at the cost of the Trust Property)
unless it obtains legal or other advice that it is in the interests of
the Beneficiaries to do so.
21.3 NO IMPLIED DUTIES
The duties and obligations of the Mortgages Trustee under the Mortgages
Trust shall be determined solely by the express provisions of this Deed
(but without prejudice to the duties and obligations of the Mortgages
Trustee under any of the other Transaction Documents). The Mortgages
Trustee shall not be liable under this Deed except for the performance
of such
19
duties and obligations as shall be specifically set forth in this Deed.
No implied covenants or obligations shall be read into this Deed
against the Mortgages Trustee, and the permissible right of the
Mortgages Trustee to do things set out in this Deed shall not be
construed as a duty.
21.4 NO LIABILITY
Neither the Mortgages Trustee, Funding (in its capacity as a
Beneficiary hereunder) nor the Seller (in its capacity as a Beneficiary
hereunder) shall be liable to each other, in the absence of wilful
default, negligence or breach of the terms of this Deed, in respect of
any loss or damage which arises out of the exercise or attempted or
purported exercise or failure to exercise any of their respective
powers.
21.5 RELIANCE ON CERTIFICATES
The Mortgages Trustee may rely on and shall be protected in acting on,
or in refraining from acting in accordance with, any resolution,
officer's certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by
it to be genuine and to have been signed or presented to it pursuant to
the Transaction Documents by the proper party or parties.
21.6 RELIANCE ON THIRD PARTIES
The Mortgages Trustee may, in relation to these presents, act on the
opinion or advice of or a certificate or any information obtained from
any lawyer, banker, valuer, broker, accountant, financial adviser,
securities dealer, merchant bank, computer consultant or other expert
in the United Kingdom or elsewhere and shall not, provided that it
shall not have acted fraudulently or in breach of any of the provisions
of the Transaction Documents, be responsible for any loss occasioned by
so acting. Any such opinion, advice, certificate or information may be
sent or obtained by letter, telemessage, telex, cable or facsimile
device and the Mortgages Trustee shall not be liable for acting on any
opinion, advice, certificate or information purporting to be so
conveyed although the same shall contain some error or shall not be
authentic, provided that such error or lack of authenticity shall not
be manifest.
22. NO RETIREMENT OF MORTGAGES TRUSTEE
22.1 NO RETIREMENT
The Mortgages Trustee shall not, and shall not purport to, retire as
the trustee of the Mortgages Trust or appoint any additional trustee of
the Mortgages Trust and shall have no power to retire or appoint any
additional trustee under the Trustee ▇▇▇ ▇▇▇▇ or otherwise.
22.2 NO REPLACEMENT
Neither the Seller nor Funding shall at any time remove or purport to
remove and/or replace the Mortgages Trustee as the trustee of the
Mortgages Trust.
22.3 NO TERMINATION
Prior to the payment by Funding of all amounts owing under the
Intercompany Loan Agreements and under the Transaction Documents,
neither the Seller nor Funding shall at
20
any time, except in accordance with the provisions of CLAUSE 14 and 21,
terminate or purport to terminate the Mortgages Trust and, in
particular, but without prejudice to the generality of the foregoing,
the Seller and Funding shall not in reliance on their absolute
beneficial interests in the Trust Property call for the transfer to
them or vesting in them of the legal estate in all or any part of the
Trust Property.
23. TERMINATION
Subject to CLAUSE 14, the Mortgages Trust shall terminate in respect of
the Trust Property (if any then remains) upon the date to occur of (i)
the date on which the Funding Share of the Trust Property is zero, and
(ii) an other date agreed in writing by Funding and the Seller.
24. FURTHER ASSURANCES
The parties agree that they will co-operate fully to do all such
further acts and things and execute any further documents as may be
necessary or desirable to give full effect to the arrangements
contemplated by this Deed.
25. AMENDMENTS, ETC.
25.1 AMENDMENTS AND WAIVERS
Without prejudice to CLAUSE 28 of the Funding Deed of Charge, no
amendment or waiver of any provision of this Deed nor consent to any
departure by any of the parties therefrom shall in any event be
effective unless the same shall be in writing and signed by each of the
parties hereto. In the case of a waiver or consent, such waiver or
consent 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.
25.2 ENTIRE AGREEMENT
This Deed contains a final and complete integration of all prior
expressions by the parties with respect to the subject matter of this
Deed and constitutes the entire agreement among the parties with
respect to the subject matter of this Deed superseding all prior oral
or written understandings other than the other Transaction Documents.
26. NON PETITION COVENANT
The Seller hereby agrees that it shall not institute against either
Funding or the Mortgages Trustee any winding-up, administration,
insolvency or similar proceedings so long as any sum is outstanding
under any Intercompany Loan Agreement and for one year plus one day
since the last day on which any such sum was outstanding.
27. NO PARTNERSHIP OR AGENCY
Nothing in this Deed shall be taken to constitute or create a
partnership between any of the parties to this Deed or to make or
appoint the Seller the agent of Funding (or vice versa).
21
28. CALCULATIONS
In the absence of manifest error, any determination or calculation
performance by or on behalf of the Mortgages Trustee in connection with
the provisions of this Deed shall be deemed to be conclusive.
29. NO WAIVER; REMEDIES
No failure on the part of any party to this Deed to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or
remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy. The remedies in this Deed are cumulative
and not exclusive of any remedies provided by law.
30. EXECUTION IN COUNTERPARTS; SEVERABILITY
30.1 COUNTERPARTS
This Deed may be executed in any number of counterparts (manually or by
facsimile) and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which when taken together shall constitute one and the same
instrument.
30.2 SEVERABILITY
Where any provision in or obligation under this Deed shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations under
this Deed, or of such provision or obligation in any other
jurisdiction, shall not be affected or impaired thereby.
31. CONFIDENTIALITY
31.1 GENERAL OBLIGATION OF CONFIDENTIALITY
Unless otherwise required by applicable law, and subject to CLAUSE 29.2
below, each of the parties agrees to maintain the confidentiality of
this Deed in its communications with third parties and otherwise. None
of the parties shall disclose to any person any information relating to
the business, finances or other matters of a confidential nature of or
relating to any other party to this Deed or any of the Transaction
Documents which it may have obtained as a result of having entered into
this Deed or otherwise.
31.2 EXCEPTIONS
The provisions of CLAUSE 29.1 above shall not apply:
(a) to the disclosure of any information to any person who is a
party to any of the Transaction Documents as expressly
permitted by the Transaction Documents;
(b) to the disclosure of any information which is or becomes
public knowledge otherwise than as a result of the wrongful
conduct of the recipient;
22
(c) to the extent that the recipient is required to disclose the
same pursuant to any law or order of any court or pursuant to
any direction or requirement (whether or not having the force
of law) of any central bank or any governmental or other
regulatory or Taxation authority;
(d) to the disclosure of any information to professional advisers
who receive the same under a duty of confidentiality;
(e) to the disclosure of any information with the consent of the
parties hereto;
(f) to the disclosure to the Rating Agencies or any of them of
such information as may be requested by any of them for the
purposes of setting or reviewing the rating assigned to the
Notes (or any of them), provided that no information which
would disclose the identity of a Borrower shall be disclosed
to the Rating Agencies or any of them;
(g) to the disclosure of any information disclosed to a
prospective assignee of Funding (provided that it is disclosed
on the basis that the recipient will hold it confidential); or
(h) to any disclosure for the purposes of collecting in or
enforcing the Trust Property or any of it.
32. EXCLUSION OF THIRD PARTY RIGHTS
The parties to this Deed do not intend that any term of this Deed
should be enforced, by virtue of the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇, by any person who is not a party to this Deed.
33. ADDRESSES FOR NOTICES
Any notices to be given pursuant to this Deed 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 (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 Seller, to Abbey National PLC, at ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (44) 20
7612 4442) for the attention of the Company Secretary with a
copy to Abbey National plc, c/o Abbey House (AAM 319), ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
(▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of Securitisation Team,
Risk Operations;
(b) in the case of the Mortgages Trustee to ▇▇▇▇▇▇ Trustees
Limited, c/o Abbey National plc, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the
attention of the Company Secretary with a copy to Abbey
National plc, c/o Abbey House (AAM 319), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number (▇▇) ▇▇▇▇ ▇▇▇
217) for the attention of Securitisation Team, Risk
Operations;
23
(c) in the case of Funding, to ▇▇▇▇▇▇ Funding Limited, c/o Abbey
National plc, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number (▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of the
Company Secretary with a copy to Abbey National plc, c/o Abbey
House (AAM 319), ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(facsimile number (▇▇) ▇▇▇▇ ▇▇▇ ▇▇▇) for the attention of
Securitisation Team, Risk Operations;
(d) in each case with a copy to the Funding Security Trustee, for
the attention of JPMorgan Chase Bank, London Branch, Trinity
Tower, 9 ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (facsimile number
(▇▇) ▇▇ ▇▇▇▇ ▇▇▇▇) for the attention of The Manager, Trust
Administration,
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 31.
34. GOVERNING LAW AND SUBMISSION TO JURISDICTION
34.1 GOVERNING LAW
This Deed is governed by, and shall be construed in accordance with,
English law.
34.2 SUBMISSION TO JURISDICTION
Each party to this Deed hereby irrevocably submits to the non-exclusive
jurisdiction of the English courts in any action or proceeding arising
out of or relating to this Deed, 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 Deed 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.
35. EXCLUSION ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ is hereby excluded to the maximum extent
permissible, to the intent that it shall not apply to the trusts
constituted hereunder and that the parties shall be in the same
position as they would be had that Act not come into force.
IN WITNESS of which this Deed has been executed by the parties hereto as a deed
which has been delivered on the date first appearing on page one.
EXECUTED as a DEED by )
ABBEY NATIONAL PLC ) Director
as Seller, Cash Manager )
and Beneficiary ) Director/Secretary
acting by )
24
EXECUTED as a DEED by )
▇▇▇▇▇▇ FUNDING ) Director
LIMITED as Beneficiary )
acting by )
) Director/Secretary
EXECUTED as a DEED by )
▇▇▇▇▇▇ TRUSTEES ) Director
LIMITED as Mortgages Trustee )
acting by )
) Director/Secretary
EXECUTED as a DEED by )
SPV MANAGEMENT ) Director
LIMITED as Settlor )
acting by ) Director/Secretary
