Exhibit 4.3
EXECUTION COPY
AMENDED AND RESTATED
MORTGAGE SALE AGREEMENT
DATED 18TH NOVEMBER, 2004
HALIFAX PLC
as Seller and one of the Beneficiaries
AND
PERMANENT FUNDING (NO. 1) LIMITED
as Funding 1 and one of the Beneficiaries
AND
PERMANENT MORTGAGES TRUSTEE LIMITED
as Mortgages Trustee
AND
THE BANK OF NEW YORK
as Security Trustee
XXXXX & XXXXX
XXXXX & XXXXX LLP
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Construction.........................................................................2
2. Sale and Purchase of Initial Portfolio...............................................................2
3. Initial Closing Date.................................................................................3
4. Sale and Purchase of New Portfolios..................................................................4
5. Trust of Monies.....................................................................................10
6. Completion of the Transfer of Loans.................................................................10
7. Undertakings........................................................................................12
8. Warranties and Repurchase by the Seller.............................................................14
9. Other Warranties....................................................................................18
10. Further Assurance...................................................................................18
11. Consequences of Breach..............................................................................18
12. Subordination.......................................................................................19
13. Non-Merger..........................................................................................19
14. No Agency or Partnership............................................................................19
15. Payments............................................................................................19
16. Waiver and Variation................................................................................19
17. Notices.............................................................................................20
18. Assignment..........................................................................................20
19. Change of Security Trustee..........................................................................21
20. Not Used............................................................................................21
21. Third Party Rights..................................................................................21
22. Governing Law.......................................................................................21
SCHEDULE
1. Representations and warranties......................................................................23
2. Registered Transfer.................................................................................31
3. Unregistered Transfer...............................................................................32
4. Lending Criteria....................................................................................35
5. Power of Attorney in favour of Funding 1, The Mortgages trustee and the Security Trustee............39
6. Loan Repurchase Notice..............................................................................42
7. Assignment of Third Party Rights....................................................................43
8. Assignment of Halifax Mortgage Re Limited MIG Policies..............................................46
9. Halifax Mortgage Re Limited MIG Policies Assignment notice..........................................48
10. Insurance Endorsement...............................................................................49
11. Insurance Acknowledgements..........................................................................51
12. New Portfolio Notice................................................................................55
13. Forms of Scottish Transfer..........................................................................57
14. Forms of Scottish Transfer..........................................................................60
15. Form of Scottish Declaration of Trust...............................................................63
16. Appendix
Part 1 Initial Portfolio..........................................................................71
Part 2 Standard Documentation.....................................................................72
THIS AMENDED AND RESTATED MORTGAGE SALE AGREEMENT is made on 18th November, 2004
BETWEEN:
(1) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales, whose registered office
is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (acting in its
capacities as the SELLER and one of the BENEFICIARIES);
(2) PERMANENT FUNDING (NO. 1) LIMITED (registered number 4267660), a private
limited company incorporated under the laws of England and Wales, whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX
(acting in its capacities as FUNDING 1 and one of the Beneficiaries);
(3) PERMANENT MORTGAGES TRUSTEE LIMITED (registered number 83116), a private
limited company incorporated under the laws of Jersey, Channel Islands,
whose registered office is at 00 Xxxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX,
Channel Islands (acting in its capacity as the MORTGAGES TRUSTEE); and
(4) THE BANK OF NEW YORK, a New York banking corporation, acting through its
offices at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX (acting in its
capacity as 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).
WHEREAS:
(A) The Seller carries on the business of, inter alia, originating mortgage
loans to individual borrowers secured on residential properties in
England, Wales or Scotland.
(B) The Seller has sold to the Mortgages Trustee certain of the above
mentioned mortgage loans together with the benefit of their related
security on the terms and subject to the conditions set out in the
Mortgage Sale Agreement (as amended and/or restated by this Agreement and
from time to time, the MORTGAGE SALE AGREEMENT).
(C) The Mortgages Trustee holds all of the above mentioned mortgage loans as
bare trustee for the Beneficiaries upon, with and subject to the trusts,
powers and provisions of the Mortgages Trust Deed (as amended and/or
restated from time to time, the MORTGAGES TRUST DEED).
(D) On 12th March, 2004 the parties to the Mortgage Sale Agreement agreed to
amend the terms of the Mortgage Sale Agreement as set out in an Amended
and Restated Mortgage Sale Agreement of the same date and the Seller sold
a new portfolio of mortgage loans to the Mortgages Trustee on 12th March,
2004 on such amended terms.
(E) On 22nd July, 2004 the parties to the Mortgage Sale Agreement agreed to
amend the terms of the Mortgage Sale Agreement as set out in an Amended
and Restated Mortgage Sale Agreement of the same date and the Seller sold
a new portfolio of mortgage loans to the Mortgages Trustee on 22nd July,
2004 on such amended terms.
1
(F) The parties to the Mortgage Sale Agreement have agreed to amend and
restate the terms of the Mortgage Sale Agreement as set out herein and
the Seller may sell new portfolios of mortgage loans and their related
security to the Mortgages Trustee on such amended terms.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND CONSTRUCTION
1.1 The amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this Deed and dated 18th
November, 2004 (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.
1.2 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 subject in each case to the provisions of CLAUSE
16.2 of the Mortgages Trust Deed.
1.3 For the purposes of Section 2 of the Law of Property (Miscellaneous
Provisions) Xxx 0000, the terms of the Transaction Documents are, so far
as applicable, incorporated herein.
1.4 The Initial Portfolio contained as Part 1 of the Exhibit to this
Agreement and any schedule of New Loans attached to any New Portfolio
Notice may be provided in a document stored upon electronic media
(including, but not limited to, a CD-ROM) in a form acceptable to the
Mortgages Trustee, the Security Trustee and Funding 1 (each acting
reasonably).
1.5 This Agreement amends and restates the Mortgage Sale Agreement made on
the 14th June, 2002 as amended and restated on the 6th March, 2003, 25th
November, 2003, 12th March, 2004 and 22nd July, 2004 (the PRINCIPAL
AGREEMENT). As of the date of this Agreement, any future rights or
obligations (excluding such 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.
2. SALE AND PURCHASE OF INITIAL PORTFOLIO
2.1 Subject to CLAUSE 2.2, in consideration of the Purchase Price (which
shall be paid in accordance with CLAUSE 3.3) and the covenant of the
Mortgages Trustee to hold the Trust Property upon trust, with and subject
to all the trusts, powers and provisions of the Mortgages Trust Deed, the
Seller hereby agrees to sell to the Mortgages Trustee with full title
guarantee, the Initial Portfolio on the Initial Closing Date.
2.2 The obligation of the Seller under CLAUSE 2.1 shall be subject to and
conditional upon:
(a) the issue by the First Issuer of the Issuer Notes on the Initial
Closing Date and the borrowing by Funding 1 of the Term Advances
under the First Issuer Intercompany Loan Agreement;
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(b) the constitution of the Mortgages Trust on or prior to the Initial
Closing Date; and
(c) the Transaction Documents in existence on the Initial Closing Date
having been executed and delivered by the parties thereto on or
before the Initial Closing Date.
2.3 The sale of the Portfolio shall not include any obligation to
pay any Delayed Cashbacks, Home Cash Reserve Drawings or Flexible Loan
Drawings (if any), which obligation shall at all times, and
notwithstanding the sale of the Portfolio, remain an obligation of the
Seller.
3. INITIAL CLOSING DATE
3.1 (a) A meeting shall take place at 11 a.m. on the Initial Closing
Date at the offices of Xxxxx & Xxxxx LLP, Xxx Xxx Xxxxxx,
Xxxxxx XX0X 0XX or such other time or offices as the parties
may agree at which the Seller shall deliver to the Security
Trustee or its representative the following documents:
(i) two originals of the power of attorney dated as a the
Initial Closing Date and substantially in the form set
out in SCHEDULE 5 hereto, duly executed by the Seller;
(ii) a certified copy of each of the duly executed Insurance
Acknowledgements;
(iii)a certified copy of each of the duly executed
Insurance Endorsements;
(iv) a duly executed assignment of the Halifax Mortgage Re
Limited MIG Policies to the extent that they relate to
the Mortgages comprised in the Initial Portfolio from
the Seller to the Mortgages Trustee and a certified
copy of a notice (the original of which shall be served
by the Seller by courier or by special delivery) of
such assignment from the Seller to HBOS Insurance (PCC)
Guernsey Limited dated as at the Initial Closing Date
and in the form (mutatis mutandis) set out in SCHEDULE
8 and SCHEDULE 9 hereto respectively and a certified
copy of consent to assignment of the Halifax Mortgage
Re Limited MIG Policies (or acknowledgement that the
Mortgages Trustee will be an insured in respect of the
Initial Portfolio under the Halifax Mortgage Re Limited
MIG Policies following such assignment) from HBOS
Insurance (PCC) Guernsey Limited in such form as HBOS
Insurance (PCC) Guernsey Limited reasonably requires;
(v) a certificate of a duly authorised officer of the
Seller dated as at the Initial Closing Date attaching a
copy of the board minute of the Seller authorising its
duly appointed representatives to agree the sale of the
Portfolio and authorising execution and performance of
this Agreement, the Servicing Agreement, the other
Transaction Documents to which the Seller is a party
(in any capacity) and all of the documentation to be
entered into pursuant to this Agreement and confirming
that the resolutions referred to therein are in full
force and effect and have not been amended or rescinded
as at the date of the certificate;
(vi) a duly executed assignment of rights against third
parties comprised in the Initial Portfolio dated as at
the Initial Closing Date and in the form of the
Assignment of Third Party Rights; and
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(vii)a solvency certificate from an authorised signatory of
the Seller dated the Initial Closing Date in a form
acceptable to the Mortgages Trustee, Funding 1 and the
Security Trustee (each acting reasonably).
(b) The parties hereto acknowledge that completion on the Initial
Closing Date of the sale to the Mortgages Trustee of all of the
Seller's right, title, interest and benefit in and to the Initial
Portfolio subject to the terms and provisions of the Mortgages
Trust Deed shall occur as indicated in this CLAUSE 3, provided
that the matters described in CLAUSES 6.2, 6.3, 6.4 and 6.5 shall
not occur until the relevant time indicated in CLAUSE 6 or, as
applicable, CLAUSE 7.4.
3.2 The Seller undertakes that from the Initial Closing Date until
the perfection of the assignment or assignation (as appropriate) in
accordance with CLAUSES 6.2, 6.3, 6.4 and 6.5, the Seller shall hold
the Title Deeds and Customer Files relating to the Portfolio that are
in its possession or under its control or held to its order to the
order of the Mortgages Trustee or as the Mortgages Trustee shall
otherwise direct.
3.3 Subject to fulfilment of the conditions referred to in CLAUSES 2.2 and
3, the Seller shall be paid the Purchase Price by telegraphic transfer
by Funding 1 on the Initial Closing Date.
3.4 The Seller shall provide all reasonable co-operation to the Mortgages
Trustee, Funding 1 and the Security Trustee to enable them to carry
out their respective duties and enforce their rights under the
Transaction Documents. Without prejudice to the generality of the
foregoing, the Seller shall:
(a) upon reasonable prior notice and during normal office hours,
permit the Mortgages Trustee, Funding 1, the Security Trustee and
their authorised employees and agents and other persons nominated
by the Security Trustee and approved by the Seller (such approval
not to be unreasonably withheld or delayed), to review the
Customer Files and the Title Deeds in relation to the Portfolio
(subject to such person(s) agreeing to keep the same confidential
but provided that disclosure shall be permitted to the
professional advisors and auditors of the party to whom such
disclosure is made and/or to the extent that such disclosure is
required by law or for the purpose of any judicial or other
proceedings); and/or
(b) give promptly all such information and explanations relating to
the Loans and their Related Security as the Mortgages Trustee,
Funding 1 or the Security Trustee may reasonably request
(including a list of the Loans and their Related Security in the
Portfolio along with details of the location of the Title Deeds
relating thereto),
provided that prior to completion in accordance with CLAUSE 6, the
Seller shall be under no obligation to provide any information or
documentation to any person other than the Mortgages Trustee and/or
the Security Trustee or their respective employees and/or professional
advisors or allow such person access to the Customer Files or Title
Deeds if to do so would result in a breach of the applicable Mortgage
Terms or the Data Protection Xxx 0000.
4. SALE AND PURCHASE OF NEW PORTFOLIOS
4.1 Subject to fulfilment of the conditions set out in CLAUSES 2.2,
3.1, 4.2 (or as applicable, 4.3) and 4.4 and the restriction set out in
CLAUSE 2.3, if the Seller shall, at any time and from time
4
to time serve a properly completed New Portfolio Notice on the
Mortgages Trustee and Funding 1 with a copy to the Security Trustee
(such service to be in the Seller's sole discretion), the Seller
agrees that on the date for completion of the sale specified in such
New Portfolio Notice the Seller shall sell with full title guarantee
(or in relation to rights and assets situated in or governed by the
law of Scotland with absolute warrandice) to the Mortgages Trustee the
relevant New Portfolio.
4.2 The conditions to be met as at each Sale Date are:
(a) no event of default under the Transaction Documents shall have
occurred which is continuing as at the relevant Sale Date;
(b) the Principal Deficiency Ledger shall not have a debit balance as
at the most recent Funding 1 Interest Payment Date after applying
all Funding 1 Available Revenue Receipts on that Funding 1
Interest Payment Date;
(c) the Mortgages Trustee is not aware that the purchase of the New
Portfolio on the relevant Sale Date would adversely affect the
then current rating by the Rating Agencies (or any of them) of
the Notes;
(d) as at the relevant Sale Date, the Seller has not received any
notice that the short term, unsecured, unguaranteed and
unsubordinated debt obligations of the Seller are not rated at
least P-1 by Xxxxx'x, A-1 by S&P and F1 by Fitch at the time of,
and immediately following, the sale of the New Loans to the
Mortgages Trustee;
(e) as at the relevant Sale Date, the aggregate Outstanding Principal
Balance of the Loans in the Mortgages Trust, in respect of which
the aggregate amount in arrears is more than three times the
Monthly Payment then due, is less than 5 per cent. of the
aggregate Outstanding Principal Balance of the Loans in the
Mortgages Trust;
(f) except where Funding 1 pays amounts to the Mortgages Trustee in
consideration of New Loans to be sold to it, the aggregate
Outstanding Principal Balance (excluding Arrears of Interest) of
New Loans transferred in any one Interest Period must not exceed
15 per cent. of the aggregate Outstanding Principal Balance of
Loans (excluding Arrears of Interest) in the Mortgages Trust as
at the beginning of that Interest Period;
(g) the sale of the New Portfolio on the relevant Sale Date does not
result in the product of WAFF and WALS for the Portfolio after
such purchase calculated on the relevant Sale Date in the same
way as for the Initial Portfolio (or as agreed by the Servicer
and the Rating Agencies from time to time) exceeding the product
of WAFF and WALS for the Portfolio calculated on the most recent
Closing Date plus 0.25 per cent.;
(h) the yield (as calculated below) of the Loans in the Mortgages
Trust together with the yield of the New Loans to be sold to the
Mortgages Trustee on the relevant Sale Date (together for the
purposes of this paragraph, the RELEVANT LOANS) is at least 0.50
per cent. greater than Sterling-LIBOR for three-month sterling
deposits as at the previous Interest Payment Date, after taking
into account the average yield on the Loans which are Variable
Rate Loans, Tracker Rate Loans and Fixed Rate Loans and the
margins on the Funding 1 Swap(s), in each case as at the relevant
Sale Date. The yield of the Relevant Loans is to be calculated as
follows:
5
(A x B)+(C x (D-E+F))+(G x (H+I)
--------------------------------
J
where,
(A) = the Outstanding Principal Balance, on the relevant Sale
Date, of the Relevant Loans which are Fixed Rate Loans;
(B) = the interest rate receivable by Funding 1 under the
Funding 1 Fixed-Floating Rate Swap as at the relevant Sale
Date;
(C) = the Outstanding Principal Balance, on the relevant Sale
Date, of the Relevant Loans which are Variable Rate Loans;
(D) = the weighted average Variable Base Rate of the Relevant
Loans which are Variable Rate Loans on the relevant Sale
Date;
(E) = the Variable Rate Swap SVR for the Relevant Loans which are
Variable Rate Loans on the relevant Sale Date;
(F) = the interest rate receivable by Funding 1 under the
Funding 1 Variable Rate Swap as at the relevant Sale Date;
(G) = the Outstanding Principal Balance, on the relevant Sale
Date, of the Relevant Loans which are Tracker Rate Loans;
(H) = the interest rate receivable by Funding 1 under the
Tracker Rate Swap as at the relevant Sale Date;
(I) = the weighted average margin of the Relevant Loans which
are Tracker Rate Loans over or under the Bank of England
Repo Rate on the relevant Sale Date;
(J) = the Outstanding Principal Balance of the Relevant Loans on
the relevant Sale Date;
(i) the sale of the New Loans on the relevant Sale Date does not
result in the loan-to-value ratio of the Loans and the New Loans
after application of the LTV Test on the relevant Sale Date
exceeding the loan-to-value ratio (based on the LTV Test) of
Loans in the Portfolio on the most recent Closing Date plus 0.25
per cent.;
(j) the sale of the New Loans on the relevant Sale Date does not
result in Loans (other than Fixed Rate Loans) which after taking
into account the Funding 1 Swap will yield less than
Sterling-LIBOR plus 0.50 per cent. as at the relevant Sale Date
and that have more than 2 years remaining on their incentive
period accounting for more than 15 per cent. of the aggregate
Outstanding Principal Balance of all Loans comprising the Trust
Property;
(k) the sale of the New Loans on the relevant Sale Date does not
result in the Fixed Rate Loans which have more than 1 year
remaining on their incentive period accounting
6
for more than 50 per cent. of the aggregate Outstanding Principal
Balance of Loans comprised in the Trust Property;
(l) no sale of the New Loans may occur, if, as at the relevant Sale
Date, the Step-up Date in respect of any Note issued after 1st
January, 2003 and still outstanding has been reached and such
Note has not been redeemed in full. For the avoidance of doubt,
this prohibition on the sale of New Loans to the Mortgages
Trustee shall remain in effect only for so long as any such Note
remains outstanding and, upon its redemption, the sale of New
Loans to the Mortgages Trustee may be resumed in accordance with
the terms of this Agreement;
(m) as at the Sale Date, the adjusted General Reserve Fund is equal
to or greater than the General Reserve Fund Threshold;
(n) if the sale of New Loans includes the sale of New Loan Types to
the Mortgages Trustee, the Security Trustee has received written
confirmation from each of the Rating Agencies that such New Loan
Types may be sold and assigned to the Mortgages Trustee and that
such sale of New Loan Types would not have an adverse effect on
the then current ratings of the Notes;
(o) the Funding 1 Swap Agreement has been modified as required (or,
if appropriate, Funding 1 has entered into a new swap agreement)
to hedge against the interest rates payable in respect of such
New Loans and the floating rate of interest payable on the Issuer
Intercompany Loan; and
(p) no Trigger Event has occurred on or before the relevant Sale
Date.
In this CLAUSE 4.2 references to any Monthly Payment due at any date
means the Monthly Payment payable in respect of the month in which
that date falls.
4.3 The obligations of the Seller under CLAUSE 4.1 shall be subject to and
conditional upon no Insolvency Event having occurred which is
continuing as at the relevant Sale Date.
4.4 Subject to fulfilment of the conditions referred to in CLAUSES
4.2, 4.3, 4.4, 4.5 and 4.6, the consideration to be provided to the
Seller for the sale and assignment of the New Portfolio to the
Mortgages Trustee on a Sale Date shall be the aggregate of:
(a) the payment by Funding 1 to the Seller by telegraphic transfer on
the relevant Sale Date of the proceeds of any New Intercompany
Loan advanced to Funding 1 by a New Issuer; and/or
(b) the covenant of the Mortgages Trustee to hold the Trust Property
on trust for the Seller (as to the Seller Share) and Funding 1
(as to the Funding 1 Share) pursuant to the terms of the
Mortgages Trust Deed.
4.5 (a) On the date of the sale of the relevant New Portfolio the Seller
shall deliver to the Security Trustee or its representative the
following documents:
(i) on the date of the first sale of a relevant New Portfolio
including Scottish Loans:
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(A) two originals of the power of attorney dated as at the
Sale Date and substantially in the form set out in
SCHEDULE 5 hereof duly executed by the Seller;
(B) a certified copy of each of the duly executed Insurance
Acknowledgements; and
(C) a certified copy of each of the duly executed Insurance
Endorsements;
(ii) a duly executed assignment of the Halifax Mortgage Re
Limited MIG Policies to the extent that they relate to the
Mortgages comprised in the relevant New Portfolio from the
Seller to the Mortgages Trustee and a certified copy of a
notice (the original of which shall be served by the Seller
by courier or by special delivery) of such assignment from
the Seller to HBOS Insurance (PCC) Guernsey Limited dated as
of the relevant Assignment Date and in the form (mutatis
mutandis) set out in SCHEDULE 8 and SCHEDULE 9 hereof
respectively and a certified copy of consent to assignment
of the Halifax Mortgage Re Limited MIG policies (or
acknowledgement that the Mortgages Trustee will be an
insured under the Halifax Mortgage Re Limited MIG Policies
following the assignment) from HBOS Insurance (PCC) Guernsey
Limited in such form as HBOS Insurance (PCC) Guernsey
Limited reasonably requires;
(iii)a duly executed assignment of rights against third parties
comprised in the relevant New Portfolio dated as at the
relevant Sale Date and in the form of the Assignment of
Third Party Rights;
(iv) a certified copy of each of the duly executed Insurance
Acknowledgements;
(v) on any Sale Date that Funding 1 provides consideration for
New Loans to be sold to the Mortgages Trustee pursuant to
CLAUSE 4.4(A) above only, a certificate of a duly authorised
officer of the Seller dated as at the relevant Sale Date
attaching either (i) a copy of the board minute referred to
in CLAUSE 3.1(A)(V) or (ii) any board minutes or
considerations, notes and resolutions of the Seller or its
duly authorised delegate (as applicable) authorising its
duly appointed representatives to agree the sale of a New
Portfolio, and authorising the execution and performance of
the Transaction Documents to which the Seller is party, in
each case confirming that the resolutions referred to
therein are in full force and effect and have not been
amended or rescinded as at the date of the certificate;
(vi) on any Sale Date that Funding 1 provides consideration for
New Loans to be sold to the Mortgages Trustee pursuant to
CLAUSE 4.4(A) above only, a solvency certificate from an
authorised signatory of the Seller dated as at the relevant
Sale Date; and
(vii)a Scottish Declaration of Trust in respect of the Scottish
Loans and their Related Security comprised in the relevant
New Portfolio, in the form (mutatis mutandis) set out in
SCHEDULE 15 and with the annexure thereto duly
8
completed, duly executed by the Seller, the Mortgages
Trustee and Funding 1.
(b) The parties hereto acknowledge that completion on each relevant
Sale Date of the sale to the Mortgages Trustee of all of the Seller's
right, title, interest and benefit in and to the relevant New Portfolio
subject to the terms and provisions of the Mortgages Trust Deed shall
occur as indicated in this CLAUSE 4 PROVIDED THAT the matters described
in CLAUSES 6.6 and 6.5 shall not occur until the relevant time
indicated in CLAUSE 6 or, as applicable, CLAUSE 7.5.
4.6 (a) The Seller undertakes that from the relevant Sale Date until the
perfection of the assignment or assignation (as appropriate) in
accordance with CLAUSES 6.2 and 6.5, the Seller shall hold the
Title Deeds and Customer Files relating to the New Portfolio that
are in its possession or under its control or held to its order
to the order of the Mortgages Trustee or as the Mortgages Trustee
shall direct.
(b) The Seller undertakes that within three (3) London Business Days
of the Sale Date to provide the Mortgages Trustee and the
Security Trustee with an updated, complete and accurate list of
the Loans and their Related Security which comprise the New
Portfolio which may be provided in a document stored upon
electronic media (including, but not limited to a CD-Rom) in a
form acceptable to the Mortgages Trustee and the Security Trustee
(each acting reasonably).
4.7 Prior to the earlier to occur of:
(a) a Trigger Event; and
(b) (i) if Funding 1 does not enter into a New Intercompany Loan
Agreement, the Interest Payment Date in September 2011; or
(ii) if Funding 1 does enter into New Intercompany Loan
Agreements, the latest Interest Payment Date specified by
Funding 1 by notice in writing to the xxxxx and the
Mortgages Trustee as applying in relation to this covenant,
the Seller undertakes to use all reasonable endeavours to offer to
sell, in accordance with the provisions of this CLAUSE 4, to the
Mortgages Trustee and the Mortgages Trustee undertakes to use all
reasonable endeavours to acquire from the Seller and to hold pursuant
to the terms of the Mortgages Trust Deed until the earlier of the
Interest Payment Date falling in September 2011 (or such later date as
may be notified by Funding 1 to the Seller) and the occurrence of a
Trigger Event, sufficient New Loans and their Related Security so that
the aggregate Outstanding Principal Balance of Loans in the Portfolio
(i) during the period from and including the Sixth Issuer Closing Date
to but excluding the Funding 1 Interest Payment Date in September 2005
is not less than (pound)27,000,000,000 and (ii) during the period from
and including the Interest Payment Date in September 2005 to but
excluding the Funding 1 Interest Payment Date in September 2009 is not
less than (pound)24,000,000,000 (or such other amount or amounts
specified by Funding 1 in the notice referred to in CLAUSE 4.7(B)(II)
above) provided that the Seller shall not be obliged to sell to the
Mortgages Trustee, and the Mortgages Trustee shall not be obliged to
acquire, New Loans and their Related Security if in the reasonable
opinion of the Seller the sale to the Mortgages Trustee of New Loans
and their Related Security would adversely affect the business of the
Seller.
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4.8 On each Sale Date that Funding 1 provides consideration for New
Loans to be sold to the Mortgages Trustee pursuant to CLAUSE 4.4(A)
above, the Beneficiaries shall appoint a firm of independent auditors
to undertake a due diligence exercise on a sample of the Customer Files
relating to the New Loans to be sold to the Mortgages Trustee on the
relevant Sale Date. The costs of such independent auditors shall be
borne by the relevant New Issuer (which shall be procured by Funding
1).
5. TRUST OF MONIES
5.1 Notwithstanding the sales effected by this Agreement, if at, or
at any other time after, the Closing Date (but prior to any repurchase
in accordance with CLAUSE 8.5) the Seller holds, or there is held to
its order, or it receives, or there is received to its order any
property, interests, rights or benefits and/or the proceeds thereof
hereby agreed to be sold, the Seller undertakes to each of the
Mortgages Trustee, Funding 1 and the Security Trustee that, subject to
CLAUSE 6, it will promptly remit, assign and/or transfer the same to
the Mortgages Trustee or, if appropriate, the Security Trustee and
until it does so or to the extent that the Seller is unable to effect
such remittance, assignment, assignation or transfer, it will hold such
property, interests, rights or benefits and/or the proceeds thereof
upon trust for the Mortgages Trustee subject at all times to the
Mortgages Trust.
5.2 If at, or any time after, the Initial Closing Date the Mortgages
Trustee holds, or there is held to its order, or it receives, or there
is received to its order, any property, interests, rights or benefits
relating to:
(a) any Loan or Loans under a Mortgage Account and its Related
Security repurchased by the Seller pursuant to CLAUSE 8.5; or
(b) (without prejudice to CLAUSE 11) amounts owed by a Borrower to
the Seller which the Seller has not agreed to sell under CLAUSE
2.1,
and/or the proceeds thereof, the Mortgages Trustee undertakes to the
Seller that it will remit, assign, re-assign, retrocess or transfer
the same to the Seller, as the case may require, and until it does so
or to the extent that the Mortgages Trustee is unable to effect such
remittance, assignation, assignment, re-assignment, retrocession or
transfer, the Mortgages Trustee undertakes to hold such property,
interests, rights or benefits and/or the proceeds thereof upon trust
for the Seller as the beneficial owner thereof or as the Seller may
direct provided that the Mortgages Trustee shall not be in breach of
its obligations under this CLAUSE 5 if, having received any such
monies and paid them to third parties in error, it pays an amount
equal to the monies so paid in error to the Seller in accordance with
the Servicing Agreement.
6. COMPLETION OF THE TRANSFER OF LOANS
6.1 The assignments or assignations (as appropriate) contemplated by
this Agreement shall be perfected on the twentieth London Business Day
after the earliest to occur of:
(a) the service of an Intercompany Loan Acceleration Notice or a Note
Acceleration Notice in relation to any Notes of any Issuer; or
(b) the Seller being required to perfect legal title to the
Mortgages, or procure any or all of the acts referred to in this
CLAUSE 6 by an order of a court of competent jurisdiction or by
any regulatory authority of which the Seller is a member or any
organisation
10
whose members comprise (but are not necessarily limited to)
mortgage lenders and with whose instructions it is customary for
the Seller to comply; or
(c) it becoming necessary by law to do any or all of the acts
referred to in this CLAUSE 6; or
(d) the Security Trustee certifying that, in its reasonable opinion,
the property, assets and rights of Funding 1 comprised in the
security constituted by the Funding 1 Deed of Charge or any
material part thereof is/are in jeopardy and that the doing of
any or all of the acts referred to in CLAUSES 6.2 to 6.6
inclusive is necessary in order materially to reduce such
jeopardy; or
(e) unless otherwise agreed in writing by the Rating Agencies and the
Security Trustee, the termination of the Seller's role as
Servicer under the Servicing Agreement; or
(f) the Seller calling for perfection by serving notice in writing to
that effect on the Mortgages Trustee, Funding 1 and the Security
Trustee; or
(g) the date on which the Seller ceases to be assigned a long term
unsecured, unsubordinated debt obligation rating from S&P of at
least BBB- or from Xxxxx'x of at least Baa3 or from Fitch of at
least BBB-; or
(h) the occurrence of an Insolvency Event in relation to the Seller;
or
(i) the latest of the last repayment dates of the Intercompany Loans
where any Intercompany Loan has not been discharged in full.
6.2 Completion of the transfer of the English Mortgages in the Portfolio
shall be effected by:
(a) a Registered Transfer, in the case of English Mortgages over
Registered Land (in the form set out in SCHEDULE 2); and
(b) an Unregistered Transfer, in the case of English Mortgages over
Unregistered Land (in the form set out in SCHEDULE 3).
6.3 Completion of the transfer of the Scottish Mortgages in the Portfolio
shall be effected by:
(a) the completion and registration in the Land Register of Scotland
of an SLR Transfer, in the case of Scottish Mortgages over
Properties title to which is registered in the Land Register of
Scotland (in the form set out in SCHEDULE 13); and
(b) the completion and recording in the General Register of Sasines
of a Sasine Transfer (in the form set out in SCHEDULE 14), in the
case of Scottish Mortgages over Properties title to which is
recorded in the General Register of Sasines.
6.4 Completion of the transfer of any other matter comprised in the
Portfolio shall be effected by a transfer in such form as the Mortgages
Trustee may reasonably require.
6.5 Subject to CLAUSE 7.5, prior to perfection pursuant to CLAUSE
6.1, neither the Mortgages Trustee nor Funding 1 nor the Security
Trustee will:
11
(a) submit or require the submission of any notice, form, request or
application to or pay any fee for the registration of, or the
noting of any interest at the Land Charges Department of the Land
Registry or at the Land Registry or Registers of Scotland in
relation to, the Mortgages Trustee's and/or Funding 1's interests
in the Portfolio;
(b) give or require the giving of any notice to any Borrower of the
assignment or assignation of that Borrower's Loan and its Related
Security to the Mortgages Trustee or the charge by Funding 1 of
Funding 1's interest in that Borrower's Loan and its Related
Security to the Security Trustee pursuant to the Funding 1 Deed
of Charge; or
(c) send or require to be sent to any solicitor who has acted on
behalf of the Seller in respect of any Mortgage with respect to
which the Seller has not received a complete set of the Title
Deeds a letter or other communication requiring such solicitor to
hold such documents to the order of the Mortgages Trustee or the
Security Trustee (as the case may be).
6.6 Within 25 London Business Days following perfection pursuant to
CLAUSE 6.1, the Seller will do such of the acts or things referred to
in CLAUSES 6.2 to 6.5 as the Security Trustee or the Mortgages Trustee
requires the Seller to do.
6.7 The Seller shall indemnify each of the Mortgages Trustee, Funding 1
and the Security Trustee from and against any and all costs, fees and
expenses (including, without limitation, legal fees and expenses and
any applicable Value Added Tax thereon) which may be incurred by the
Mortgages Trustee and/or Funding 1 and/or the Security Trustee by
reason of the doing of any act, matter or thing referred to in this
CLAUSE 6 and CLAUSE 7.5.
7. UNDERTAKINGS
7.1 The Mortgages Trustee and Funding 1 undertake to the Seller that
they will at all times (or will direct the Servicer at all times to)
use reasonable endeavours to administer and enforce (and exercise their
powers and rights and perform their obligations under) the Loans
comprised in the Portfolio and their Related Security in accordance
with the Seller's Policy (for so long as it exists and thereafter in
accordance with such policies as would be applied by a reasonable,
prudent mortgage lender in the conduct of its business), provided that
if the Seller fails to comply with its obligations to repurchase any
Loan and its Related Security pursuant to CLAUSE 8.5 the Mortgages
Trustee shall be entitled to waive any Early Repayment Fee in respect
of such Loan and its Related Security if, in the Mortgages Trustee's
reasonable opinion, such waiver is reasonably necessary in order to
effect an interest rate change.
7.2 The Seller hereby undertakes to the Mortgages Trustee and
Funding 1 that, in the event that any Borrower establishes that it has
at any time prior to the Initial Closing Date or, as the case may be,
the relevant Sale Date, paid to the Seller any amounts in excess of
sums due to the Seller as at the date of payment under the Mortgage
Conditions applicable to that Loan, the Seller will reimburse the
Borrower for such overpayment together with any interest, cost or other
expense associated therewith. The Seller further agrees to hold the
Mortgages Trustee and Funding 1 harmless against any such claims and to
indemnify the Mortgages Trustee and Funding 1 on an after Tax basis in
relation to any costs, expense, loss or other claim which may arise in
connection therewith. Any payment made by the Seller to the Mortgages
Trustee and Funding 1 in discharge of the foregoing indemnity shall be
regarded as a rebate of part of the Purchase Price of the relevant
Loan.
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7.3 Each of the Seller and the Mortgages Trustee and Funding 1
undertakes to each other and to the Security Trustee that if and to the
extent that any determination shall be made by any court or other
competent authority or any ombudsman in respect of any Loan and its
Related Security that:
(a) any term which relates to the recovery of interest under the
Standard Documentation applicable to that Loan and its Related
Security is unfair; or
(b) the interest payable under any Loan is to be set by reference to
HVR 1 or HVR 2 (as applicable) (and not a rate set by the
Seller's successors or assigns or those deriving title from
them); or
(c) the variable margin above the Bank of England repo rate under any
Tracker Rate Loan must be set by the Seller (rather
than by its successors or assigns or those deriving title from
them); or
(d) the interest payable under any Loan is to be set by reference to
an interest rate other than that set or purported to be set by
either the Servicer or the Mortgages Trustee as a result of the
Seller having more than one variable mortgage rate,
then, at Funding 1's direction (subject to the prior written consent
of the Security Trustee), the Mortgages Trustee will serve upon the
Seller a notice in the form of the Loan Repurchase Notice requiring
the Seller to repurchase the relevant Loan and all other Loans under
the relevant Mortgage Account and its Related Security in accordance
with CLAUSE 8.5 (but in the case of a determination in respect of (b)
above, only if at any time on or after such determination, HVR 1 or
HVR 2 (as applicable) shall be below or shall fall below the standard
variable rate of interest set by such successors or assigns or those
deriving title from them).
7.4 The Seller hereby undertakes to the Mortgages Trustee, Funding 1 and
the Security Trustee that:
(a) if the long term unsecured, unsubordinated and unguaranteed debt
obligations of the Seller cease to be assigned a rating of Baa2
or higher from Xxxxx'x and BBB or higher from S&P and BBB or
higher from Fitch, the Seller shall deliver to the Mortgages
Trustee, Funding 1, the Security Trustee and the Rating Agencies
a draft letter of notice to each of the Borrowers of the sale and
purchase effected by this Agreement; and
(b) if the long term unsecured, unsubordinated and unguaranteed debt
obligations of the Seller cease to be assigned a rating of Baa3
or higher from Xxxxx'x and BBB- or higher from S&P and BBB- or
higher from Fitch, then the Seller shall, within 20 London
Business Days of it becoming aware of such a rating being
assigned, give notice of the sale and purchase effected by this
Agreement to each Borrower.
7.5 The Seller undertakes to the Mortgages Trustee, Funding 1 and the
Security Trustee that, pending perfection under CLAUSE 6, the
Seller:
(a) shall not do or omit to do any act or thing which might, in the
reasonable opinion of the Security Trustee, prejudice the
interests of the Mortgages Trustee, Funding 1 and/or the Security
Trustee in the Portfolio;
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(b) shall promptly notify the Mortgages Trustee, Funding 1 and the
Security Trustee in writing if it receives written notice of any
litigation or claim calling into question in any material way the
Seller's or the Mortgages Trustee's title to any Loan comprised
in the Portfolio or its Related Security or if it becomes aware
of any material breach of any of the Representations and
Warranties or other obligations under this Agreement;
(c) shall, if reasonably required so to do by the Mortgages Trustee
or the Security Trustee, participate or join in any legal
proceedings to the extent necessary to protect preserve and
enforce the Seller's or the Mortgages Trustee's or Funding 1's or
the Security Trustee's title to or interest in any Loan or its
Related Security;
(d) shall use all reasonable endeavours to obtain as soon as
reasonably possible:
(i) the title number to each Property in respect of which a
Mortgage is registered at the Land Registry to the extent
that such title number does not appear in the Exhibit to
this Agreement (or, as the case may be, the relevant New
Portfolio Notice); and
(ii) the title number to each Property in respect of which a
Mortgage is registered in the Land Register of Scotland to
the extent that such title number does not appear in the
Exhibit to this Agreement (or, as the case may be, the
relevant New Portfolio Notice); and
(e) shall make and enforce claims under the Buildings Policies and
the Halifax Insurance Policies and hold the proceeds of such
claims on trust for the Mortgages Trustee or as the Mortgages
Trustee may direct.
7.6 The Seller hereby further undertakes to the Mortgages Trustee
and Funding 1 that it is and at all times shall remain solely
responsible for funding any Delayed Cashbacks and any Home Cash Reserve
Drawings and Flexible Loan Drawings (if any) made by a Borrower and for
funding any request for any Further Advance made by a Borrower and, for
the avoidance of doubt, neither the Mortgages Trustee nor Funding 1
will be required to advance moneys to the Seller or to a Borrower in
order to fund such a Delayed Cashback, Home Cash Reserve Drawing,
Flexible Loan Drawing (if any), or Further Advance in any circumstances
whatsoever.
7.7 The Seller shall grant security powers of attorney to the
Mortgages Trustee, Funding 1 and the Security Trustee in the form set
out in SCHEDULE 5 allowing any of the Mortgages Trustee, Funding 1 and
the Security Trustee and their delegates from time to time (inter alia)
to set the Seller's Variable Base Rate in the circumstances referred to
in CLAUSE 4 of the Servicing Agreement and/or following perfection
pursuant to CLAUSE 6.1 PROVIDED THAT nothing in this CLAUSE 7.7 shall
prevent the Seller (or any of its attorneys from time to time) from
setting a higher Seller's Variable Base Rate than those set or to be
set or required or to be required by the Mortgages Trustee, Funding 1
or the Security Trustee.
8. WARRANTIES AND REPURCHASE BY THE SELLER
8.1 (a) The Seller hereby makes the Representations and Warranties:
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(i) in respect of each Loan and its Related Security in the
Initial Portfolio as at the date hereof and on the Initial
Closing Date; and
(ii) in relation to each New Loan and its Related Security in a
New Portfolio, on the date of the service of the relevant
New Portfolio Notice and on the relevant Sale Date.
(b) Each statement comprised in the Representations and Warranties
shall be construed as a separate statement and (save as expressly
provided to the contrary) shall not be limited or restricted by
reference to or inference from the terms of any other such
statement.
(c) The Seller acknowledges:
(i) that the Representations and Warranties are made with a view
to inducing the Mortgages Trustee, Funding 1 and the
Security Trustee (as the case may be) either to enter into
this Agreement and the other Transaction Documents to which
is a party or to agree to purchase the New Loans and their
Related Security comprised in each New Portfolio, and
(ii) that each of the Mortgages Trustee, Funding 1 and the
Security Trustee has entered into this Agreement and the
other Transaction Documents to which it is a party in
reliance upon the Representations and Warranties
notwithstanding any information in fact possessed or
discoverable by the Mortgages Trustee, Funding 1 and/or the
Security Trustee or otherwise disclosed to any of them, and
(iii)that prior to entering into this Agreement and the other
Transaction Documents to which each is a party neither the
Mortgages Trustee nor Funding 1 nor the Security Trustee has
made any enquiries of any matter.
8.2 The Mortgages Trustee's, Funding 1's and the Security Trustee's
sole remedy in respect of a breach of any of the Representations and
Warranties shall be to take action under this CLAUSE 8 or under CLAUSE
6 of the Mortgages Trust Deed.
8.3 In the event of a material breach of any of the Representations
or Warranties in respect of any Loan and/or its Related Security made
under CLAUSE 8.1 or if any of those Representations or Warranties
proves to be materially untrue as at the Initial Closing Date or, as
the case may be, the relevant Sale Date, and provided that:
(a) the Mortgages Trustee has given the Seller not less than 20
London Business Days' notice in writing;
(b) the Mortgages Trustee has obtained the prior written consent of
the Security Trustee; and
(c) such breach or untruth, where capable of remedy, is not remedied
to the reasonable satisfaction of Funding 1 and the Security
Trustee within the 20 London Business Days period referred to in
(a) (or such longer period as Funding 1 and the Security Trustee
may direct the Mortgages Trustee in writing),
15
then at Funding 1's direction (subject to the prior written consent of
the Security Trustee) the Mortgages Trustee shall serve upon the
Seller a notice in the form of the Loan Repurchase Notice requiring
the Seller to repurchase the relevant Loan and its Related Security
(and any other Loan secured or intended to be secured by that Related
Security or any part of it) in accordance with CLAUSE 8.5.
8.4 (a) If the Seller accepts an application from, or makes an offer
(which is accepted) to, a Borrower for a Further Advance then
(save in the case of any Loan which is then in arrears), at
Funding 1's direction (subject to the prior written consent of
the Security Trustee), the Mortgages Trustee will serve upon the
Seller a notice in the form of the Loan Repurchase Notice
requiring the Seller to repurchase the relevant Loan and its
Related Security (and any other Loan secured or intended to be
secured by that Related Security or any part of it) in accordance
with CLAUSE 8.5.
(b) If the Seller accepts an application from, or makes an offer
(which is accepted) to, a Borrower for a Product Switch and
(except as provided in paragraph (c) below) on the immediately
preceding Distribution Date, the Seller is in breach of the
conditions referred to in CLAUSES 4.2(A) to (P) inclusive as if
references therein to NEW LOANS and NEW PORTFOLIO were references
to the Loan which would result from the implementation of such
Product Switch and as if references to SALE DATE were references
to the date when the Seller and relevant Borrower complete such
Product Switch then (save in the case of any Loan which is then
in arrears) from and including the relevant Distribution Date to
but excluding the date when such conditions have been satisfied,
at Funding 1's direction (subject to the prior written consent of
the Security Trustee), the Mortgages Trustee will serve upon the
Seller a notice in the form of the Loan Repurchase Notice
requiring the Seller to repurchase the relevant Loan and its
Related Security (and any other Loan secured or intended to be
secured by that Related Security or any part of it) in accordance
with CLAUSE 8.5.
(c) If the Seller accepts an application from, or makes an offer
(which is accepted) to, a Borrower for a Product Switch, the
effect of which is to extend the final maturity date of the
relevant Loan beyond June 2040 then, at Funding 1's direction
(subject to the prior written consent of the Security Trustee),
the Mortgages Trustee will serve upon the Seller a notice in the
form of the Loan Repurchase Notice requiring the Seller to
repurchase the relevant Loan and its Related Security in
accordance with CLAUSE 8.5 notwithstanding that the conditions
referred to in CLAUSES 4.2(A) to 4.2(P) have been satisfied.
(d) For the avoidance of doubt, the Seller shall not accept an
application from nor make an offer (which is accepted) to a
Borrower for a Further Advance or a Product Switch if the
relevant Loan to which such Further Advance or Product Switch
relates is then in arrears subject only to such exceptions as
made on a case by case basis as would be acceptable to a
reasonable, prudent mortgage lender.
8.5 Upon receipt of a Loan Repurchase Notice duly signed on behalf
of the Mortgages Trustee, the Seller shall sign and return a duplicate
copy and shall repurchase from the Mortgages Trustee, and the Mortgages
Trustee shall re-assign or re-transfer to the Seller free from the
Security Interests created by the Funding 1 Deed of Charge and the
Second Supplemental Funding 1 Deed of Charge, the relevant Loan (and
any other Loan secured or intended to be secured by that Related
Security or any part of it) and their Related Security. Completion of
such repurchase shall take place on the Distribution Date after receipt
by the Seller of such
16
Loan Repurchase Notice or such other date as the Mortgages Trustee may
direct in the Loan Repurchase Notice (provided that the date so
specified by the Mortgages Trustee shall not be later than 90 days
after receipt by the Seller of such notice) when the Seller shall pay
to the Mortgages Trustee GIC Account (or as the Mortgages Trustee
shall direct) an amount equal to the aggregate Outstanding Principal
Balance of such Loan or Loans and any Related Security and all Arrears
of Interest and Accrued Interest relating thereto (save for the
repurchase of any Loan and its Related Security which is subject to a
Further Advance or a Product Switch pursuant to CLAUSE 8.4 in which
case the Seller shall pay to the Mortgages Trustee GIC Account (or as
the Mortgages Trustee shall direct) an amount equal to the aggregate
Outstanding Principal Balance of such Loan and its Related Security
and Accrued Interest relating thereto only) as at the date of such
repurchase and the provisions of CLAUSE 8.6 shall apply.
8.6 On the date of completion of any repurchase of a Loan and its Related
Security in accordance with CLAUSE 8.5 above, the Security Trustee,
the Mortgages Trustee and Funding 1 shall at the cost of the Seller
execute and deliver, or cause their respective duly authorised
attorneys to execute and deliver, to the Seller:
(a) a memorandum of release of such Loan and its Related Security
from the security constituted by the Funding 1 Deed of Charge and
the Second Supplemental Funding 1 Deed of Charge in a form
reasonably acceptable to the Seller;
(b) in relation to the English Mortgages, if perfection of the
assignment to the Mortgages Trustee has occurred in accordance
with CLAUSE 6:
(i) if the relevant English Mortgage is over Registered Land, a
transfer of such Mortgage to the Seller in the form of the
Registered Transfer; or
(ii) if the relevant English Mortgage is over Unregistered Land,
a transfer of such English Mortgage to the Seller in the
form of the Unregistered Transfer;
(c) in relation to the Scottish Mortgages, if perfection of the
assignation to the Mortgages Trustee has occurred in accordance
with CLAUSE 6:
(i) if the relevant Scottish Mortgage is over a Property title
to which is registered in the Land Register of Scotland, an
SLR Transfer by the Mortgages Trustee in favour of the
Seller; and
(ii) if the relevant Scottish Mortgage is over a Property title
to which is registered in the General Register of Sasines, a
Sasine Transfer by the Mortgages Trustee in favour of the
Seller.
(d) a re-assignment or retrocession (as appropriate) of the rights of
the Mortgages Trustee in respect of the relevant Related Security
each in a form reasonably acceptable to the Seller (which shall,
in the case of the re-assignment of the MIG Policies, be
substantially in the form of the Assignment of MIG Policies); and
(e) a notification to the Servicer that all further sums due in
respect of such repurchased Loan are for the Seller's account.
17
Upon such completion the Seller shall cease to be under any further
obligation to hold any Title Deeds or other documents relating to such
Loan or Loans and its/their Related Security to the order of the
Mortgages Trustee and if the Mortgages Trustee holds the Title Deeds
it will return them to the Seller. Any repurchase by the Seller of or
in respect of a Loan or Loans and its or their Related Security shall
constitute a discharge and release of the Seller from any claims which
the Mortgages Trustee and/or Funding 1 or the Security Trustee may
have against the Seller arising from the relevant Representation or
Warranty in relation to that Loan or Loans and its or their Related
Security only but shall not affect any rights arising from a breach of
any other express provision of this Agreement or any Representation or
Warranty in relation to any other Loan and other Related Security.
8.7 After the Seller becomes aware of any event and/or fact which may
reasonably give rise to an obligation under any clause of this
Agreement to repurchase any Loan it shall notify the Mortgages
Trustee, Funding 1 and the Security Trustee in writing thereof as soon
as reasonably practicable.
8.8 The terms of this CLAUSE 8 shall not prejudice the rights of the
Mortgages Trustee or the Beneficiaries under the Mortgages Trust Deed.
8.9 The parties to this Agreement may, with the prior written
consent of the Security Trustee, waive or amend the Representations and
Warranties. In determining whether to give its consent to the proposed
waiver or amendments to the Representations and Warranties, the
Security Trustee shall exercise its discretion in accordance with the
terms of CLAUSE 25.8 of the Funding 1 Deed of Charge.
9. OTHER WARRANTIES
On the date of this Agreement, the Closing Date, and each Sale Date,
the Seller represents and warrants to each of the Mortgages Trustee,
Funding 1 and the Security Trustee that:
(a) the Seller has not acquired or owned or possessed any rights in
any Issuer, the Mortgages Trustee or Funding 1 such that it would
CONTROL such Issuer within the meaning of Section 416 ICTA 1988;
and
(b) there is not any CONNECTION (within the meaning of Section 87
Finance Act 1996) between any Issuer and any Borrower.
10. FURTHER ASSURANCE
The parties hereto agree that they will co-operate fully to do all such
further acts and things and execute any further documents that may be
necessary or desirable to give full effect to the transactions
contemplated by this Agreement (but subject always to CLAUSE 6).
11. CONSEQUENCES OF BREACH
Without prejudice to CLAUSES 7 and 8, Funding 1, the Mortgages Trustee
and the Security Trustee severally acknowledge to and agree with the
Seller, and the Security Trustee acknowledges to and agrees with
Funding 1 and the Mortgages Trustee, that the Seller shall have no
liability or responsibility (whether, in either case, contractual or
tortious, express or implied) for any loss or damage for or in respect
of any breach of, or any act or omission in respect of, any of its
obligations hereunder other than loss or damage directly (and not
18
indirectly or consequentially) suffered by the Mortgages Trustee
and/or Funding 1 or the assets comprised in the Funding 1 Security
constituted by the Funding 1 Deed of Charge by reason of such breach,
act or omission. For this purpose (and without limiting the scope of
the above exclusion in respect of indirect or consequential loss or
damage) any loss or damage suffered by the Mortgages Trustee and/or
Funding 1 or such assets as a result of the breach, act or omission in
question also having been or given rise to an Event of Default or
enforcement of the Funding 1 Security contributed by the Funding 1
Deed of Charge shall be treated as indirect or consequential loss or
damage PROVIDED THAT this sentence shall not apply to any direct or
non-consequential loss or damage arising from any such breach, act or
omission.
12. SUBORDINATION
The Seller agrees with Funding 1, the Mortgages Trustee and the
Security Trustee that on the enforcement of any Mortgage any sums owed
to the Seller by a Borrower and which are secured under such Mortgage
and the rights and remedies of the Seller in respect of the sums owed
to the Seller shall at all times be subject and subordinated to any
sums owed to the Mortgages Trustee by the Borrower and which are
secured under such Mortgage and to the rights and remedies of the
Mortgages Trustee in respect of such sums owed to the Mortgages Trustee
by the Borrower.
13. NON-MERGER
Any term of this Agreement to which effect is not given on the Initial
Closing Date or on any Sale Date (including in particular, but without
limitation, the liability of the Seller under the Representations and
Warranties and the indemnity in CLAUSE 6.7 and the provisions of CLAUSE
4) shall not merge and shall remain in full force and effect
notwithstanding the sale and purchases contemplated by this Agreement.
14. NO AGENCY OR PARTNERSHIP
It is hereby acknowledged and agreed by the parties that nothing in
this Agreement shall be construed as giving rise to any relationship of
agency, save as expressly provided herein, or partnership between the
parties and that in fulfilling its obligations hereunder, each party
shall be acting entirely for its own account.
15. PAYMENTS
Except as otherwise specifically provided, all payments to be made
pursuant to this Agreement shall be made in sterling in immediately
available funds without exercising or seeking to exercise any right of
set-off as may otherwise exist and shall be deemed to be made when they
are received by the payee and shall be accounted for accordingly unless
failure to receive any payment is due to an error by the payee's bank.
16. WAIVER AND VARIATION
16.1 Exercise or failure to exercise any right under this Agreement
shall not, unless otherwise herein provided, constitute a waiver of
that or any other right.
16.2 Subject to CLAUSE 25 of the Funding 1 Deed of Change any
amendments to this Agreement will be made only with the prior written
consent of each party to this Agreement.
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17. NOTICES
Any notices to be given pursuant to this Agreement to any of the
parties hereto shall be in writing and shall be sufficiently served if
sent by prepaid first class post, by hand or by facsimile transmission
and shall be deemed to be given (in the case of facsimile transmission)
when despatched 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 Halifax plc, Xxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxxxxxxx XX0 0XX (LP/3/3/SEC) (facsimile number +44 (0) 113
235 7511) for the attention of the Head of Mortgage
Securitisation with a copy to HBOS Treasury Services PLC, 00 Xxx
Xxxxx Xxxxxx, Xxxxxx XX0X 0XX (facsimile number +44 (0)20 7574
8303) for the attention of Head of Mortgage Securitisation and
Covered Bonds;
(b) in the case of Funding 1: to Permanent Funding (No. 1) Limited,
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (facsimile
number x00 (0)00 0000 0000) for the attention of the Secretary
with a copy to HBOS Treasury Services PLC, 00 Xxx Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX (facsimile number x00 (0)00 0000 0000) for the
attention of Head of Mortgage Securitisation and Covered Bonds;
(c) in the case of the Mortgages Trustee: to Permanent Mortgages
Trustee Limited, 00 Xxxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX,
(facsimile number x00 (0) 0000 000000) for the attention of the
Secretary with a copy to HBOS Treasury Services PLC, 00 Xxx Xxxxx
Xxxxxx, Xxxxxx XX0X 0XX (facsimile number x00 (0)00 0000 0000)
for the attention of Head of Mortgage Securitisation and Covered
Bonds; and
(d) in the case of the Security Trustee: to The Bank of Xxx Xxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxx X00 0XX (facsimile number + 44 (0)20 7964
6061/6399) for the attention of Global Structural 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 17.
18. ASSIGNMENT
18.1 Subject always to the provisions of CLAUSE 19, no party hereto
shall be entitled to assign all or any part of its rights or
obligations hereunder to any other party without the prior written
consent of each of the other parties hereto (which shall not, if
requested, be unreasonably withheld) save that Funding 1 shall be
entitled to assign whether by way of security or otherwise all or any
of its rights under this Agreement without such consent to the Security
Trustee pursuant to the Funding 1 Deed of Charge and the Security
Trustee may at its sole discretion assign all or any of its rights
under or in respect of this Agreement without such consent to any
successor Security Trustee in exercise of its rights under the Funding
1 Deed of Charge.
18.2 The Seller acknowledges that on the assignment pursuant to the Funding
1 Deed of Charge by Funding 1 to the Security Trustee of Funding 1's
rights under this Agreement the Security Trustee may enforce such
rights in the Security Trustee's own name without joining Funding 1 in
any such action (which right the Seller hereby waives) and the Seller
hereby waives as
20
against the Security Trustee any rights or equities in its favour
arising from any course of dealing between the Seller and Funding 1.
19. CHANGE OF SECURITY TRUSTEE
19.1 If there is any change in the identity of the Security Trustee in
accordance with the Funding 1 Deed of Charge, the Seller, the Mortgages
Trustee and Funding 1 shall execute such documents and take such action
as the successor Security Trustee and the outgoing Security Trustee may
reasonably require for the purpose of vesting in the successor Security
Trustee the rights and obligations of the outgoing Security Trustee
hereunder and releasing the outgoing Security Trustee from its future
obligations under this Agreement and the Seller shall give notice
thereof to the Rating Agencies.
19.2 It is hereby acknowledged and agreed that by its execution of this
Agreement the Security Trustee shall not assume or have any of the
obligations or liabilities of the Seller or Funding 1 or the Mortgages
Trustee hereunder.
20. NOT USED
21. THIRD PARTY RIGHTS
A person who is not a party to this agreement may not enforce any of
its terms under the Contracts (Rights of Third Parties) Xxx 0000.
22. GOVERNING LAW
22.1 This Agreement shall be governed by the laws of England (provided that
any terms of this Agreement which are particular to Scots law shall be
construed in accordance with the laws of Scotland).
22.2 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. The Mortgages Trustee irrevocably appoints Structured
Finance Management Limited of Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx
XX0X 0XX as its agent for service of process.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the day
and year first before written.
SIGNED by )
as attorney for )
HALIFAX PLC in the presence of ) ...........................
Witness's Signature: .......................
Name: .......................
Address: .......................
21
SIGNED by )
for and on behalf of )
PERMANENT FUNDING (NO. 1) LIMITED ) ............................
SIGNED by )
for and on behalf of )
PERMANENT MORTGAGES )
TRUSTEE LIMITED ) ............................
SIGNED by )
for and on behalf of )
THE BANK OF NEW YORK ) ............................
22
SCHEDULE 1
REPRESENTATIONS AND WARRANTIES
1. LOANS
1.1 The particulars of the Loans set out in the Exhibit (or, as the case
may be, the relevant New Portfolio Notice and in each Scottish
Declaration of Trust) are true, complete and accurate in all material
respects.
1.2 Each Loan was originated by the Seller and was originated and is
denominated in pounds sterling (or was originated and is denominated in
euro if the euro has been adopted as the lawful currency for the time
being of the United Kingdom).
1.3 Each Loan in the Portfolio as at the Sixth Issuer Closing Date was made
not earlier than 1st February, 1996 and not later than 1st August,
2004.
1.4 Each Loan matures for repayment not later than June 2040.
1.5 No Loan has an Outstanding Principal Balance of more than
(pound)500,000.
1.6 The Lending Criteria are the lending criteria applicable to the Loans
and their Related Security.
1.7 Prior to the making of each Initial Advance and Further Advance:
(a) the Lending Criteria and all preconditions to the making of any
Loan were satisfied in all material respects subject only to such
exceptions as made on a case by case basis as would be acceptable
to a reasonable, prudent mortgage lender; and
(b) the requirements of the relevant MIG Policy were met, so far as
applicable to that Loan.
1.8 (a) Each Loan was made and its Related Security taken or received
substantially on the terms ofthe Standard Documentation without
any material variation thereto and nothing has been done
subsequently to add to, lessen, modify or otherwise vary the
express provisions of any of the same in any material respect.
(b) The brochures, application forms, offers, offer conditions and
marketing material distributed by the Seller to the Borrower when
offering a Loan to a Borrower:
(i) do not conflict in any material respect with the terms
applicable to the relevant Loan and its Related Security at
the time that the Loan was entered into;
(ii) do not conflict with and would not prohibit or otherwise
limit the terms of, the Transaction Documents or the
matters contemplated thereby, including for the avoidance
of doubt and without limitation:
23
(A) the assignment or assignation (as appropriate) of the
Loans and their Related Security to the Mortgages
Trustee or the placing of the Loans and their Related
Security into trust;
(B) the administration of the Loans and their Related
Security by the Servicer or a delegate of the Servicer
or (for as long as the Seller and the Servicer are the
same legal entity) the appointment of a new Servicer
following the occurrence of an Insolvency Event in
relation to the Seller; and
(C) so far as the Seller is aware to the best of its
knowledge, information and belief, the ability of the
Mortgages Trustee or the Security Trustee to set the
variable rate payable under any Variable Rate Loan
independently of (and without regard to the level of)
the Seller's standard variable rate of interest or if
the Seller has more than one standard variable rate of
interest, the relevant Seller's standard variable rate
of interest, subject to any applicable cap on that
variable rate which is not itself linked to any rate
set by the Seller and to set the variable margin above
the Bank of England repo rate under any Tracker Rate
Loan independently of (and without regard to the level
of) any differential set by the Seller, subject to any
applicable cap on that variable margin above the Bank
of England repo rate which is not itself linked to any
margin set by the Seller.
(c) There is no restriction on the Seller's successors and assigns
and assignees to the legal title of the Loans (including, without
limitation, the Mortgages Trustee if and when legal title to the
Loans is transferred to it) right:
(i) to set the variable rate payable under any Variable Rate
Loan independently of (and without regard to the level of)
the Seller's standard variable rate of interest or if the
Seller has more than one standard variable rate of
interest, the relevant Seller's standard variable rate of
interest, subject to any applicable cap on that variable
rate which is not itself linked to any rate set by the
Seller (subject to complying with the obligations under the
Standard Documents as to changes in interest rates
generally and so that in particular the successors will not
be able to change the interest rate following a transfer of
legal title unless the reasons for changing the interest
rate set out in the Standard Documents apply) and provided
that in relation to Loans which are subject to HVR 2, the
differential between that rate and the Loans which are
subject to HVR 1 is maintained; and
(ii) to set the variable margin above the Bank of England repo
rate under any Tracker Rate Loan independently of (and
without regard to the level of) any differential set by the
Seller, subject to any applicable cap on that variable
margin above the Bank of England repo rate which is not
itself linked to any margin set by the Seller (subject to
complying with the obligations under the Standard Documents
as to changes in margins generally and so that in
particular the successors will not be able to change the
margin following a transfer of legal title unless the
reasons for changing the margin set out in the Standard
Documents apply).
24
1.9 The Seller is under no obligation to make Further Advances (other than
Flexible Loan Drawings (if any), Delayed Cashbacks and Home Cash
Reserve Drawings) or to release retentions or to pay fees or other sums
relating to any Loan or its Related Security to any Borrower.
1.10 Each Borrower has made at least two Monthly Payments in respect of each
Loan.
1.11 Other than with respect to monthly interest payments or as provided in
paragraph 1.12 below, no Borrower is or has, since the date of the
relevant Mortgage, been in material breach of any obligation owed in
respect of the relevant Loan or under the Related Security and
accordingly no steps have been taken by the Seller to enforce any
Related Security.
1.12 The total amount of arrears of interest or principal, together with any
fees, commissions and premiums payable at the same time as such
interest payment or principal repayment, on any Loan is not on the
Initial Closing Date or the relevant Sale Date (as applicable), nor has
been during the 12 months immediately preceding the Initial Closing
Date or the relevant Sale Date (as applicable) more than the amount of
the Monthly Payment then due.
1.13 No Loan is guaranteed by a third party save where the guarantee
constitutes legal, valid and binding obligations of the guarantor
enforceable in accordance with their terms.
1.14 Each Flexible Loan was originated not earlier than 1st November 2004
and was made under the 2004 Mortgage Conditions (2nd Edition).
1.15 Interest on each Loan is charged in accordance with the Standard
Documentation.
1.16 Interest on each Loan is payable monthly in arrear.
1.17 Each Loan and its Related Security is valid, binding and enforceable in
accordance with its terms and is non-cancellable:
(i) save in relation to any term in any Loan or in its Related
Security, in each case which is not binding by virtue of the
Unfair Terms in Consumer Contracts Regulations 1994 or (as the
case may be) the Unfair Terms in Consumer Contracts Regulations
1999; and
(ii) save in relation to any amount advanced under a Flexible Loan,
any Delayed Cashback, any Home Cash Reserve Drawing and any other
Further Advance, in each case which is not enforceable by virtue
of the Consumer Credit Xxx 0000.
To the best of the Seller's knowledge, none of the terms in any Loan or
in its Related Security is not binding by virtue of its either (i)
being unfair within the meaning of the Unfair Terms in Consumer
Contracts Regulations 1994 or (as the case may be) the Unfair Terms in
Consumer Contracts Regulations 1999 or (ii) not being compliant with
the terms of the Consumer Credit Xxx 0000. In this Warranty 1.17,
reference to any legislation shall be construed as a reference to that
legislation as amended, extended or re-enacted from time to time.
1.18 All of the Borrowers are individuals and were aged 18 years or older at
the date he or she executed the relevant Mortgage.
1.19 Not used.
25
1.20 Each loan in the relevant Portfolio is either:
(a) a Variable Rate Loan, Tracker Rate Loan or Fixed Rate Loan; or
(b) a New Loan Type which each of the Rating Agencies has confirmed
in writing may be included in the relevant New Portfolio.
2. MORTGAGES
2.1 The whole of the Outstanding Principal Balance on each Loan and any
Arrears of Interest and all Accrued Interest is secured by a Mortgage.
2.2 Each Mortgage is in the form of the pro forma contained in the Standard
Documentation which was applicable at the time the Mortgage was
executed.
2.3 Each Mortgage constitutes a valid and subsisting first charge by way of
legal mortgage or (in the case of Scottish Mortgages) first ranking
standard security over the relevant Property subject only in certain
appropriate cases to applications for registration or recording at the
Land Registry or Registers of Scotland which where requisite have been
made and are pending and in relation to such cases the Seller is not
aware of any caution, notice, inhibition or any other matter that would
prevent such registration or recording.
2.4 Each Mortgage has first priority for the whole of the Outstanding
Principal Balance on the Loan and all Arrears of Interest and Accrued
Interest thereon and all future interest, fees, costs and expenses
payable under or in respect of such Mortgage.
2.5 The Seller has and will maintain, all consents, authorisations,
approvals, licences and orders, including without limitation all
authorisations under the FSMA requirements to originate the Loans and
Mortgages.
2.6 The Seller has complied and will comply, in all material respects, with
all applicable laws and regulations, including without limitation the
FSA's rules in MCOB, in respect of its origination of the Loans and
Mortgages.
2.7 [not used].
3. THE PROPERTIES
3.1 All of the Properties are in England, Wales or Scotland.
3.2 Each Property constitutes a separate dwelling unit (subject to limited
case by case exceptions) and is either freehold, leasehold or (in
Scotland) heritable or held under a long lease.
3.3 Save for children of Borrowers and children of someone living with the
Borrower, every person who, at the date upon which any English Mortgage
was granted, had attained the age of eighteen and was in or about to be
in actual occupation of the relevant Property, is either named as a
Borrower or has signed a Deed of Consent in the form of the pro forma
contained in the Standard Documentation which was applicable at the
time the Mortgage was executed.
3.4 At the date upon which any Scottish Mortgage was granted all necessary
MHA Documentation had been obtained so as to ensure that neither that
Scottish Mortgage nor the
26
related Property is subject to or affected by any statutory right of
occupancy under the Matrimonial Homes (Family Protection) (Scotland)
Xxx 0000.
3.5 No Property has been let otherwise than by way of:
(b) an assured shorthold tenancy which meets the requirements of
Section 19A or Section 20 of the Housing Xxx 0000; or
(c) a short assured tenancy which meets the requirements of section
32 of the Housing (Scotland) Xxx 0000; or
(d) an assured tenancy;
in each case which meets the Seller's Policy in connection with
lettings to non-owners.
3.6 No Property is the subject of a shared ownership lease arrangement or
staircase purchasing arrangement.
4. VALUERS' AND SOLICITORS' REPORTS
4.1 Not more than twelve months (or a longer period as may be acceptable to
a reasonable, prudent mortgage lender) prior to the grant of each
Mortgage (or such longer period as may be acceptable to a reasonable,
prudent mortgage lender) the Seller received a Valuation Report from a
Valuer on the relevant Property (or such other form of report
concerning the valuation of the relevant Property as would be
acceptable to a reasonable, prudent mortgage lender), the contents of
which were such as would be acceptable to a reasonable, prudent
mortgage lender.
4.2 The principal amount of the Initial Advance (including any retention(s)
subsequently advanced to the Borrower but disregarding Capitalised
Expenses) is either:
(a) not more than 75 per cent. of the lower of the purchase price and
the appraised value of the Property as stated in the Valuation
Report referred to above in paragraph 4.1 (the APPRAISED VALUE)
(or, in case of a remortgage, of the appraised value) of the
Property; or
(b) greater than 75 per cent. (but not more than 97 per cent.) of the
lower of the purchase price and the appraised value (or, in the
case of a remortgage, of the appraised value), in which case for
those Loans originated prior to 1st January, 2001 only that part
of the Initial Advance which exceeds 75 per cent. of the lower of
the purchase price and the appraised value (or, in the case of a
remortgage, of the appraised value) is covered under the terms of
a MIG Policy.
4.3 Prior to the taking of each Mortgage (other than a remortgage), the
Seller:
(a) instructed the Seller's solicitor, licensed conveyancer or (in
Scotland) qualified conveyancer to carry out an investigation of
title to the relevant Property and to undertake such other
searches, investigation, enquiries and other actions on behalf of
the Seller as are set out in the instructions which the Seller
issued to the relevant solicitor as are set out in:
27
(i) the CML's Lenders' Handbook for England and Wales in
relation to English Mortgages;
(ii) the Seller's Mortgage Practice Notes in relation to
Scottish Mortgages taken before the CML's Lenders' Handbook
for Scotland was adopted in 2000; or
(iii) the CML's Lenders' Handbook for Scotland in relation to
Scottish Mortgages taken after the CML's Lenders' Handbook
for Scotland was adopted in 2000,
(or such comparable, predecessor or successor instructions and/or
guidelines as may for the time being be in place), subject only
to such variations made on a case by case basis as would have
been acceptable to a reasonable, prudent mortgage lender at the
relevant time; or
(b) received a Certificate of Title from the solicitor or licensed
conveyancer or (in Scotland) qualified conveyancer referred to in
paragraph (a) relating to such Property the contents of which
were such as would have been acceptable to a reasonable, prudent
mortgage lender at that time.
4.4 The benefit of all Valuation Reports, any other valuation report
referred to in paragraph 4.1 and Certificates of Title which were
provided to the Seller not more than two years prior to the date of
this Agreement can be validly assigned to the Mortgages Trustee without
obtaining the consent of the relevant Valuer, solicitor or licensed
conveyancer or (in Scotland) qualified conveyancer.
5. BUILDINGS INSURANCE
5.1 Each Property is insured under:
(a) a buildings insurance policy arranged by the Borrower in
accordance with the relevant Mortgage Conditions or in accordance
with the Alternative Insurance Recommendations; or
(b) the Halifax Policies; or
(c) a Seller-introduced building insurance policy; or
(d) a buildings insurance policy arranged by the relevant landlord;
or
(e) the Properties in Possession Cover.
5.2 No act, event or circumstance has occurred which would adversely affect
the Properties in Possession Cover or entitle the insurers to refuse to
make payment thereunder or to reduce the amount payable in respect of
any claim thereunder.
5.3 All claims under the Properties in Possession Cover have been paid in
full within a reasonable time of the date of submission of the claim
and, save in respect of minor claims, there are no claims outstanding.
28
5.4 The Seller has maintained and will maintain all consents,
authorisations, approvals, licences and orders, including without
limitation all authorisations under the FSMA, to carry on any insurance
related activities in respect of the Properties.
6. MIG POLICIES
6.1 Where applicable, the MIG Policies are in full force and effect in
relation to the Initial Portfolio or, as the case may be, each New
Portfolio and all premiums thereon have been paid.
6.2 The benefit of the Halifax Mortgage Re Limited MIG Policies can be and
will have been, with effect from the Initial Closing Date or the
relevant Sale Date, as applicable, validly assigned to the Mortgages
Trustee and charged to the Security Trustee, insofar as they relate to
the Initial Portfolio or, as the case may be, each New Portfolio in
each case in the manner and to the extent contemplated by the
Transaction Documents.
6.3 To the best of the knowledge of the Seller no act, event or
circumstance has occurred which would adversely affect the MIG Policies
or entitle the insurers to refuse to make payment thereunder or to
reduce the amount payable in respect of any claim thereunder insofar as
they relate to the Initial Portfolio or, as the case may be, each New
Portfolio.
6.4 All valid claims under the MIG Policies have been paid in full within a
reasonable time of the date of submission of the claim.
7. THE SELLER'S TITLE
7.1 The Seller has good title to, and is the absolute unencumbered legal
and beneficial owner of, all property, interests, rights and benefits
agreed to be sold and/or assigned by the Seller to the Mortgages
Trustee pursuant to this Agreement free and clear of all mortgages,
charges, liens, Encumbrances, claims and equities (including, without
limitation, rights of set-off or counterclaim and unregistered or
overriding interests which fall within any of the paragraphs of
schedules 1 or 3 to the Land Registration Act 2002 (as such schedules
have effect in accordance with section 90(5) and Schedule 12 of the
Land Registration Act 2002) or Section 28(1) of the Land Registration
(Scotland) Act 1979 and the Seller is not in breach of any covenant
implied by reason of its selling the Portfolio with full title
guarantee or absolute warrandice (or which would be implied if the
Registered Transfers, Unregistered Transfers or Scottish Transfers, as
applicable, were completed).
7.2 All steps necessary to perfect the Seller's title to the Loans and the
Related Security were duly taken at the appropriate time or are in the
process of being taken, in each case (where relevant) within any
applicable priority periods or time limits for registration with all
due diligence and without undue delay.
7.3 Save for Title Deeds held at the Land Registry or Registers of
Scotland, the Title Deeds and the Customer Files relating to each of
the Loans and their Related Security are held by, or are under the
control of:
(a) the Seller; or
(b) the Seller's solicitors or licensed conveyancers or (in Scotland)
qualified conveyancers to the order of the Seller,
29
and the Title Deeds held at the Land Registry have been sent to it with
a request that any such Title Deeds will be returned to the Seller or
its solicitors on its behalf.
7.4 Neither the entry by the Seller into this Agreement nor any transfer,
assignment, assignation or creation of trust contemplated by this
Agreement affects or will adversely affect any of the Loans and their
Related Security (including, without limitation, the Insurance
Policies) and the Seller may freely assign and create a trust or trusts
in respect of all its rights, title, interests and benefits therein as
contemplated in this Agreement without breaching any term or condition
applying to any of them.
7.5 The Seller has not knowingly waived or acquiesced in any breach of any
of its rights in respect of a Loan or its Related Security, other than
waivers and acquiescence such as a reasonable, prudent mortgage lender
might make on a case by case basis.
8. GENERAL
8.1 The Seller has, since the making of each Loan, kept or procured the
keeping of full and proper accounts, books and records showing clearly
all transactions, payments, receipts, proceedings and notices relating
to such Loan.
8.2 Neither the Seller nor as far as the Seller is aware any of its agents
has received written notice of any litigation, claim, dispute or
complaint (in each case, subsisting, threatened or pending) in respect
of any Borrower, Property, Loan, Related Security, Halifax Policy, MIG
Policy or Properties in Possession Cover which (if adversely
determined) might have a material adverse effect on the Trust Property
or any part of it.
8.3 The Seller has received from each Borrower a variable direct debit
instruction in favour of the Seller signed by the relevant Borrower and
addressed to its bank, variable as to the amount payable by such
Borrower by unilateral notice given from time to time by the Seller to
such Borrower's bank without further instruction or consent from such
Borrower or such other method of payment as may be acceptable to a
reasonable, prudent mortgage lender.
8.4 There are no authorisations, approvals, licences, orders, notifications
or consents required as appropriate for the Seller to enter into or to
perform the obligations under this Agreement or to render this
Agreement legal, valid, binding, enforceable and admissible in
evidence.
8.5 The Insurance Acknowledgements are valid, binding and enforceable
against the relevant insurer by the Mortgages Trustee and the Security
Trustee.
30
SCHEDULE 2
REGISTERED TRANSFER
IN THE FORM OF THE LAND REGISTRY FORM TR4 AS SHOWN OVERLEAF WITH SUCH AMENDMENTS
AS THE MORTGAGES TRUSTEE MAY REASONABLY REQUIRE TO GIVE EFFECT TO THIS AGREEMENT
OR IN SUCH OTHER FORM AS THE MORTGAGES TRUSTEE MAY REASONABLY REQUIRE TO TAKE
ACCOUNT OF CHANGES IN LAW OR PRACTICE.
31
SCHEDULE 3
UNREGISTERED TRANSFER
THIS DEED OF TRANSFER OF MORTGAGES is made the day of
BY:
(1) HALIFAX PLC whose registered office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx
Xxxxxxxxx XX0 0XX (hereinafter called the TRANSFEROR) of the one part;
and
IN FAVOUR OF:
(2) PERMANENT MORTGAGES TRUSTEE LIMITED whose registered office is 00
Xxxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX (hereinafter called the
TRANSFEREE) of the other part.
WHEREAS:
(A) By the charges by way of legal mortgage (the MORTGAGES) brief
particulars of which are set out in the Annexure hereto the properties
brief particulars of which are similarly set out became security for
the repayment of the monies therein mentioned.
(B) By a mortgage sale agreement (as amended and/or restated from time to
time) made between, inter alia, the Transferor and the Transferee on
14th June, 2002 (as the same may be or have been amended, varied or
supplemented from time to time with the consent of the parties hereto,
the MORTGAGE SALE AGREEMENT), the Transferor agreed to sell and the
Transferee agreed to buy all right, title, interest, benefit and
obligation (both present and future) of the Transferor in and under
those Mortgages and all other mortgages in favour of the Transferor
over such properties which do not relate to registered land for the
consideration mentioned in the said Mortgage Sale Agreement.
NOW THIS DEED WITNESSETH as follows:
1. In consideration for the sums payable and other consideration indicated
under the Mortgage Sale Agreement (receipt of which is hereby
acknowledged), the Transferor hereby transfers unto the Transferee with
full title guarantee all rights, title, interests, benefits and
obligations (both present and future) of the mortgagee in and under the
Mortgages including for the avoidance of doubt:
(a) the right to demand, xxx for, recover, receive and give receipts
for all principal moneys payable or to become payable under the
relevant Mortgages or the unpaid part thereof and the interest
due or to become due thereon;
(b) the benefit of all securities for such principal moneys and
interest, the benefit of all consents to mortgage signed by
occupiers of the mortgaged properties and the benefit of and the
right to xxx on all covenants with, or vested in, the mortgagee
in relation to each Mortgage and the rights to exercise all
powers of the mortgagee in relation to each Mortgage;
32
(c) all the estate and interest in the relevant mortgaged properties
vested in the mortgagee subject to redemption or cesser; and
(d) all causes of action of the mortgagee against any person in
connection with any report, valuation, opinion, certificate,
consent to mortgage or other statement of fact or opinion given
in connection with any Mortgage or affecting the decision to make
the relevant advance.
2. This Deed shall be governed by and construed in accordance with English
law.
IN WITNESS WHEREOF this document has been executed and delivered as a deed the
day and year first before written.
EXECUTED as a DEED by )
HALIFAX PLC )
acting by its attorney in )
the presence of: ) ...........................
Witness's Signature: .......................
Name: .......................
Address: .......................
33
ANNEX 1
Account No. Property address Date of Mortgage Borrower
34
SCHEDULE 4
LENDING CRITERIA
LENDING CRITERIA
The Loans in the Initial Portfolio or, as the case may be, the relevant New
Portfolio were originated according to the Seller's lending policy at the
applicable time the Loan was offered. At the Sixth Issuer Closing Date the
Seller's lending policy included the criteria set out below. However, the Seller
retains the right to revise its lending policy from time to time, and so the
criteria applicable to New Loans may not be the same as those set out below.
1. Types of Property
Properties may be either freehold, leasehold or (in Scotland) heritable
or held under a long lease. In the case of leasehold properties, the
unexpired portion of the lease must in most cases not expire earlier
than 30 years after the term of the Loan. The property must be used
solely for residential purposes (with extremely limited case by case
exceptions) and must be in sound structural condition and repair or be
capable of being put into such state. House boats, mobile homes and any
property on which buildings insurance cannot be arranged are not
acceptable. All persons who are to be legal owners of the Property on
completion of the relevant Mortgage must be Borrowers.
Mortgage applications may be accepted by the Seller on properties in:
(a) England (including the Isle of Wight and Scilly Isles);
(b) Wales (including Anglesey);
(c) Northern Ireland; and
(d) Scotland.
All properties have been valued by a valuer approved by the Seller or,
where appropriate, according to a methodology which would meet the
standards of a reasonable, prudent mortgage lender and which has been
approved by the Seller.
2. Term of Loan
There is no minimum term on home purchase Loans and the maximum term is
40 years for all loans. A repayment period for a new Further Advance
that would extend beyond the term of the original advance may also be
accepted at the Seller's discretion, subject to the following:
(a) the consent of any subsequent lender or guarantor to the Further
Advance;
(b) the Seller may in its discretion extend the period of the
original advance, provided that, in all leasehold cases, not less
than 30 years of the lease must be left unexpired at the end of
the term of the Mortgage; and
35
(c) the approval of the valuer where the valuer has previously
recommended a term which is shorter than the maximum Loan terms
referred to above.
If a Borrower requests to increase the term of the existing Loan, the
maximum term for a repayment Loan is 25 years from the date from which
the extended term is granted. However, the total term from the start
date of the account must not exceed 40 years.
If a Borrower or guarantor is already retired or a mortgage term is
requested that will take the Borrower/guarantor's term beyond the
anticipated retirement age, specific procedures must be followed by the
Seller.
3. Age of Applicant
All Borrowers must be aged 18 or over. There is no maximum age limit.
However, if the term of the Mortgage extends into retirement, the
Seller will attempt to ascertain the Borrower's anticipated income in
retirement. If the Seller determines the Borrower will not be able to
afford the Mortgage into retirement, the application will be declined.
If the Borrower is already retired, the Seller will consider the
Borrower's ability to support the Loan.
4. Loan to Value (or LTV) Ratio
The maximum original LTV ratio of Loans in the Initial Portfolio is 97
per cent. At the date of this Agreement, for Properties of
(pound)150,000 or less, the Seller may lend up to 97 per cent. of the
improved valuation of the Property (the original valuation plus the
increase in value deriving from any improvements). For Properties in
excess of (pound)150,000, the permissible LTV ratio decreases as the
Loan amount increases. The Seller will not provide Loans in excess of
100 per cent. of the sum of the purchase price and the increase in
value deriving from any improvements.
In the case of a Property that is being purchased, value is determined
by the lower of the valuation and the purchase price. In the case of a
remortgage or Further Advance, value is determined on the basis of a
valuation only.
5. Mortgage Indemnity Guarantee Policies/High LTV Fees
Borrowers are currently required to pay high LTV fees to the Seller for
each Mortgage account where the aggregate of the outstanding principal
balance of the relevant Loan(s) at origination (excluding any
capitalised high LTV fees and/or booking fees and/or valuation fees)
exceeds certain specified percentages.
If the LTV ratio exceeds 90 per cent., the Borrower pays high LTV fees
based on the difference between the actual LTV ratio and a 75 per cent.
LTV ratio.
Prior to 1st January, 2001, the Seller required cover under mortgage
indemnity guarantee, or MIG, policies for Mortgages where the LTV ratio
exceeded 75 per cent., though during 1999 and 2000 the Seller paid the
premium for the MIG cover if the LTV ratio was between 75 per cent. and
90 per cent. Since 1st January, 2001, the Seller has not required cover
under MIG policies for any Loans.
36
6. Status of Applicant(s)
The maximum amount of the aggregate Loan(s) under a mortgage account is
determined by a number of factors, including the applicant's income. In
determining income, the Seller includes basic salary as primary income,
along with performance or profit-related pay, allowances, mortgage
subsidies, pensions, annuities and state benefits. Payments for
overtime, bonus and commissions will not be automatically included in
income. The Seller will include 60% of any regular overtime, bonuses or
commission (100% if guaranteed). The Seller will deduct the annual cost
of existing commitments (which have over 12 months to run) from the
applicant's gross income, depending on the applicant's credit score.
The Seller will also verify the applicant's employment.
In cases where a single Borrower is attempting to have the Seller take
a secondary income into account, the Seller will consider the
sustainability of the Borrower's work hours, the similarity of the jobs
and/or skills, the commuting time and distance between the jobs, the
length of employment at both positions and whether the salary is
consistent with the type of employment. The Seller will determine,
after assessing the above factors, if it is appropriate to use both
incomes. If so, both incomes will be used as part of the normal income
calculation.
When there are two applicants, the Seller adds joint incomes together
for the purpose of deciding which income band to use. The Seller may,
at its discretion, consider the income of additional applicants as well
but only a maximum rate of one times that income.
Positive proof of the borrower's identity and address must be
established. In exceptional circumstances this requirement can be
waived (provided money laundering regulations are complied with), but
the reasons for doing so must be fully documented.
The Seller may exercise discretion within its lending criteria in
applying those factors which are used to determine the maximum amount
of the Loan(s). Accordingly, these parameters may vary for some Loans.
The Seller may take the following into account when exercising
discretion: credit score result, existing customer relationship,
percentage of LTV, stability of employment and career progression,
availability of living allowances and/or mortgage subsidy from the
employer, employer's standing, regularity of overtime, bonus or
commission (up to a maximum of 60 per cent. of the income), credit
commitments, quality of security (such as type of property, repairs,
location or saleability), and the increase in income needed to support
the Loan.
The Seller may not exercise discretion where it is lending over 95 per
cent. of value or the Borrower's credit score fails. There is an
exception from this policy for existing Borrowers who are moving home
and the Seller's overall position is improved.
7. Credit History
(a) Credit Search
With the exception, in some circumstances, of Further Advances to
existing Borrowers, a credit search is carried out in respect of all
applicants. Applications may be declined where an adverse credit
history (for example, county court judgement (or the Scottish
equivalent), default, or bankruptcy notice) is revealed.
37
(b) Existing Lender's Reference
In some cases, the Seller may also seek a reference from any existing
and/or previous lender. Any reference must satisfy the Seller that the
account has been properly conducted and that no history of material
arrears exists.
(c) First Time Buyers/Applicants in rented accommodation
Where applicants currently reside in rented accommodation, the Seller
may seek a landlord's reference. In addition, if considered
appropriate, a further reference may be taken in connection with any
other property rented by the applicant(s) within the preceding 18
months.
Tenancy statements may only be accepted from local authorities, housing
associations as reputable landlords known to the relevant
branch/business centre.
(d) Bank Reference
A bank reference may be sought or the applicants may be required to
provide bank statements in support of his or her application.
8. Scorecard
The Seller uses some of the above criteria and various other criteria
to provide an overall score for the application that reflects a
statistical analysis of the risk of advancing the Loan. The lending
policies and processes are determined centrally to ensure consistency
in the management and monitoring of credit risk exposure. Full use is
made of software technology in credit scoring new applications. Credit
scoring applies statistical analysis to publicly available data and
customer-provided data to assess the likelihood of an account going
into arrears. Mortgage collection is conducted through a number of
payment collection departments.
The Seller reserves the right to decline an application that has
received a passing score. The Seller does have an appeals process if an
applicant believes his or her application to be unfairly denied. It is
the Seller's policy to allow only authorised individuals to exercise
discretion in granting variances from the scorecard.
38
SCHEDULE 5
POWER OF ATTORNEY IN FAVOUR OF FUNDING 1, THE MORTGAGES TRUSTEE
AND THE SECURITY TRUSTEE
THIS DEED OF POWER OF ATTORNEY is made on the , 2004 by:
(1) HALIFAX PLC whose registered office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx
Xxxxxxxxx XX0 0XX (registered number 02367076) (the SELLER);
IN FAVOUR OF each of:
(2) PERMANENT FUNDING (NO. 1) LIMITED whose registered office is at
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (registered number
4267660) (FUNDING 1);
(3) PERMANENT MORTGAGES TRUSTEE LIMITED whose registered office is at 00
Xxxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX (registered number 83116) (the
MORTGAGES TRUSTEE);
(4) THE BANK OF NEW YORK, a New York banking corporation, acting through
its offices at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX in its
capacity as security trustee (the SECURITY TRUSTEE, which expression
shall include such company and all other persons or companies for the
time being acting as the security trustee or security trustees under
the Funding 1 Deed of Charge).
WHEREAS:
(A) By virtue of a mortgage sale agreement (the MORTGAGE SALE AGREEMENT)
dated 14th June, 2002 and as subsequently amended and restated on 6th
March, 2003, 25th November, 2003, 12th March, 2004, 22nd July, 2004 and
on 18th November, 2004 and made between the Seller (1) Funding 1 (2)
the Mortgages Trustee (3) and the Security Trustee provision was made
for the execution by the Seller of this Power of Attorney.
(B) Words and phrases in this Power of Attorney shall (save where expressed
to the contrary) have the same meanings respectively as the words and
phrases in the Master Definitions and Construction Schedule dated 18th
November, 2004 as amended, varied or supplemented from time to time and
signed by amongst others, the parties to the Power of Attorney.
NOW THIS DEED WITNESSETH as follows:
1. The Seller irrevocably and by way of security for the performance of
the covenants, conditions and undertakings on the part of the Seller
contained in the Mortgage Sale Agreement and the Servicing Agreement
HEREBY APPOINTS each of Funding 1, the Mortgages Trustee and the
Security Trustee and any receiver and/or administrator appointed from
time to time in respect of Funding 1 and/or the Mortgages Trustee or
their assets (each an ATTORNEY) severally to be its true and lawful
attorney for the Seller and in the Seller's name or otherwise to do any
act matter or thing which any Attorney considers necessary or desirable
for the protection, preservation or enjoyment of that Attorney's
interest in the Loans and their Related Security and/or which ought to
be done under the covenants, undertakings and provisions contained in
the Mortgage Sale Agreement including (without limitation) any or all
of the following:
39
(a) to execute, sign, seal and deliver (using the company seal of the
Seller where appropriate) any conveyance, assignation or transfer
(including, for the avoidance of doubt each Scottish Declaration of
Trust) of the Loans or any of them to the Mortgages Trustee and its
successors in title or to any other person or persons entitled to the
benefit thereof;
(b) to execute, sign, seal and deliver (using the company seal of the
Seller where appropriate) any conveyance, assignment, assignation or
transfer (including for the avoidance of doubt, each Scottish
Declaration of Trust) of the Related Security or any item comprised
therein (to the extent only that such item or items relate to the
Loans) to the Mortgages Trustee and its successors in title or to any
other person or persons entitled to the benefit thereof or entitled to
be registered at the Land Registry as proprietor thereof or to be
registered in the Land Register of Scotland or recorded in the General
Register of Sasines as heritable creditor thereof (as the case may be);
(c) to do every other act or thing which the Seller is obliged to do under
the Mortgage Sale Agreement or which that Attorney may otherwise
consider to be necessary proper or expedient for fully and effectually
vesting or transferring the interests sold thereunder in the Loans and
their Related Security or any or each of them and/or the Seller's
estate right and title therein or thereto in or to the Mortgages
Trustee and its successors in title or to any other person or persons
entitled to the benefit thereof (as the case may be) in the same manner
and as fully and effectually in all respects as the Seller could have
done including, without limitation, any of the acts referred to in
CLAUSE 6.5(A) to (C) of the Mortgage Sale Agreement;
(d) to exercise its rights, powers and discretions under the Loans
including the right to fix the rate or rates of interest payable under
the Loans in accordance with the terms thereof including, for the
avoidance of doubt, whilst such Loans subsist and subject to the
consent of the Mortgages Trustee being given to the setting of such
rates, setting the Seller's Variable Base Rate in the circumstances
referred to in CLAUSE 4 of the Servicing Agreement and/or following
perfection pursuant to CLAUSE 6.1 of the Mortgages Sale Agreement
PROVIDED THAT nothing in the Clause shall prevent the Seller (or any of
its attorneys from time to time) from setting a higher rate than those
set or to be set or required or to be required by the Mortgages Trustee
or Funding 1 under this Power of Attorney;
(e) to discharge the Mortgages or any of them and to sign, seal, deliver
and execute such receipts releases surrenders instruments, discharges,
retrocessions and deeds as may be requisite or advisable in order to
discharge the relevant Property or Properties from the Mortgages or any
of them; and
(f) to exercise all the powers of the Seller in relation to such Loans and
their Related Security.
2. Each Attorney shall have the power by writing under its hand by an
officer of the Attorney from time to time to appoint a substitute who
shall have power to act on behalf of the Seller as if that substitute
shall have been originally appointed Attorney by this Power of Attorney
(including, without limitation, the power of further substitution)
and/or to revoke any such appointment at any time without assigning any
reason therefor.
40
3. The Seller hereby agrees at all times hereafter to ratify and confirm
whatsoever the said Attorney or its attorneys shall lawfully do or
cause to be done in and concerning the Loans or their Related Security
by virtue of this Power of Attorney.
4. The laws of England shall apply to this Power of Attorney and the
interpretation thereof.
IN WITNESS WHEREOF the Seller has executed and delivered this document as a deed
the day and year first before written.
THE COMMON SEAL of )
HALIFAX PLC )
was hereunto affixed in )
the presence of: )
......................................Authorised Signatory
......................................Authorised Signatory
41
SCHEDULE 6
LOAN REPURCHASE NOTICE
Dated [ ]
1. It is hereby agreed that for the purpose of this notice the PRINCIPAL
AGREEMENT shall mean the Mortgage Sale Agreement dated 14th June, 2002
as amended and restated on 6th March, 2003, 25th November, 2003, 12th
March, 2004, 22nd July, 2004 and as further amended and restated on
18th November, 2004 and from time to time, made between (1) HALIFAX PLC
(the SELLER) (2) PERMANENT FUNDING (NO. 1) LIMITED (3) PERMANENT
MORTGAGES TRUSTEE LIMITED (the MORTGAGES TRUSTEE) and (4) THE BANK OF
NEW YORK (as the same may be or have been amended, varied or
supplemented from time to time with the consent of those parties).
2. Save where the context otherwise requires, words and expressions in
this notice shall have the same meanings respectively as when used in
the Principal Agreement.
3. In accordance with CLAUSE 8.5 of the Principal Agreement, upon receipt
of this Loan Repurchase Notice by the Seller there shall exist between
the Seller and the Mortgages Trustee an agreement (the AGREEMENT FOR
SALE) for the sale by the Mortgages Trustee to the Seller of the Loans
and their Related Security more particularly described in the Schedule
hereto. Completion of such sale shall take place on [ ].
4. The Agreement for Sale shall incorporate, mutatis mutandis, the
relevant provisions of the Principal Agreement.
............................................
Signed for and on behalf of
PERMANENT MORTGAGES TRUSTEE LIMITED
[On duplicate
We hereby acknowledge receipt of and confirm the contents of the Loan Repurchase
Notice dated [ ].
............................................
Signed for and on behalf of
HALIFAX PLC]
SCHEDULE
5. 6. 7. 8. 9.
Title No. (if Borrower Account No. Property Date of
registered) Postcode Mortgage
42
SCHEDULE 7
ASSIGNMENT OF THIRD PARTY RIGHTS
THIS DEED OF ASSIGNMENT is made on [*]
BY:
(1) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales, whose registered
office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (the
TRANSFEROR);
IN FAVOUR OF:
(2) PERMANENT MORTGAGES TRUSTEE LIMITED (registered number 83116), a
private limited company incorporated under the laws of Jersey, Channel
Islands, whose registered office is at 00 Xxxxxxxxx, Xx Xxxxxx, Xxxxxx
XX0 0XX (the TRANSFEREE).
WHEREAS:
(A) By the charges by way of legal mortgage or standard security (the
MORTGAGES) brief particulars of which are set out in the Annexure
hereto the properties brief particulars of which are similarly set out
became security for the repayment of the moneys therein mentioned.
(B) By the Mortgage Sale Agreement, the Transferor agreed to sell and the
Transferee agreed to buy all right, title, interest and benefit (both
present and future) of the Transferor in and under those Mortgages and
all Related Security and all monies secured by those Mortgages and
Related Security.
NOW THIS DEED WITNESSETH as follows:
1. Terms used (but not defined) in this Deed (including the recitals)
shall, except where the context otherwise requires and save where
otherwise defined in this Deed, have the meanings given to them in the
master definitions and construction schedule dated 18th November, 2004
as amended and/or restated from time to time, signed by, amongst
others, the parties to this Deed (as the same may be amended, varied or
supplemented from time to time with the consent of the parties to this
Deed) (the MASTER DEFINITIONS AND CONSTRUCTION SCHEDULE) and this Deed
shall be construed in accordance with the interpretation provisions set
out in CLAUSE 2 thereof.
2. The Transferor hereby assigns absolutely unto the Transferee with full
title guarantee or, in the case of any Related Security or causes of
action (as described in CLAUSE 2(B) below) governed by Scots law, with
absolute warrandice:
(a) the benefit of all Related Security relating to the Mortgages
(including without limitation all securities for the principal
moneys and interest secured by the Mortgages and the benefit of
all consents to mortgage signed by occupiers of the mortgaged
properties and the benefit of all guarantees, indemnities and
surety contracts relating to the Mortgages) other than any such
Related Security which has
43
been transferred to the Transferee by other means or which is not
otherwise capable of such transfer; and
(b) all causes of action of the Transferor against any person in
connection with any report, valuation, opinion, certificate,
consent or other statement of fact or opinion given in connection
with any Related Security relating to the Mortgages or affecting
the decision to make any advance in connection with such
Mortgages.
3. The Transferor on behalf of the Transferee agrees to intimate the
assignation contained in Clause 2 hereof to all relevant third parties
where required to do so pursuant to CLAUSE 6 of the Mortgage Sale
Agreement or as otherwise required by the Security Trustee.
4. This Deed shall be governed by and construed in accordance with English
law.
IN WITNESS WHEREOF this document has been executed and delivered as a deed the
day and year first before written.
EXECUTED AS A DEED by )
HALIFAX PLC )
acting by its attorney in )
the presence of: ) ............................
Witness's Signature: ...............................
Name: ...............................
Address: ...............................
44
ANNEXURE REFERRED TO IN THE FOREGOING ASSIGNMENT
Account No. Property address Borrower Date of Mortgage
45
SCHEDULE 8
ASSIGNMENT OF HALIFAX MORTGAGE RE LIMITED MIG POLICIES
THIS DEED is made on [*]
BY:
(1) HALIFAX PLC (registered number 02367076), a public limited company
incorporated under the laws of England and Wales, whose registered
office is at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0 0XX (the
SELLER);
IN FAVOUR OF:
(2) PERMANENT MORTGAGES TRUSTEE LIMITED (registered number 83116), a
private limited company incorporated under the laws of Jersey, Channel
Islands, whose registered office is at 00 Xxxxxxxxx, Xx Xxxxxx, Xxxxxx,
XX0 0XX (the MORTGAGES TRUSTEE).
WHEREAS:
(A) By a Mortgage Sale Agreement dated 14th June, 2002, as amended and
restated on 6th March, 2003, 25th November, 2003, 12th March, 2004,
22nd July, 2004 as further amended and restated on 18th November, 2004
and from time to time made between, amongst others, the parties hereto,
the Seller agreed to transfer to the Mortgages Trustee certain charges
by way of legal mortgage or standard security secured on residential
property in England, Wales and Scotland together with the benefit of
any monies secured thereby from time to time.
(B) The Seller has the benefit of mortgage indemnity insurance policies
brief details of which are set out in the Schedule to this Deed (the
HMRL MIG POLICIES).
(C) The Seller has agreed with the Mortgages Trustee to assign to the
Mortgages Trustee the benefit of the HMRL MIG Policies to the extent
that they relate to the Loans in the Portfolio.
(D) The insurance businesses (including, for the avoidance of doubt, the
HMRL MIG Policies) of Halifax Mortgage Re Limited were acquired by HBOS
Insurance (PCC) Guernsey Limited on 21st December, 2001.
NOW THIS DEED WITNESSETH as follows:
1. Terms used (but not defined) in this Deed (including the recitals)
shall, except where the context otherwise requires and save where
otherwise defined in this Deed, have the meanings given to them in the
master definitions and construction schedule dated 18th November, 2004
as amended and/or restated from time to time, signed by amongst others,
the parties to this Deed, (as the same may be amended, varied or
supplemented from time to time with the consent of the parties to this
Deed) (the MASTER DEFINITIONS CONSTRUCTION SCHEDULE) and this Deed
shall be construed in accordance with the interpretation provisions set
out in CLAUSE 2 thereof.
46
2. The Seller with full title guarantee hereby conveys, transfers and
assigns to the Mortgages Trustee absolutely all its right, title,
interest and benefit in the HMRL MIG Policies to the extent that they
relate to the Mortgages which as at this date are comprised in the
Portfolio, and all moneys and proceeds to become payable under any of
the same and all covenants relating thereto and all powers and remedies
for enforcing the same.
3. This Deed shall be governed by and construed in accordance with English
law.
IN WITNESS WHEREOF which this document has been executed and delivered as a deed
the day and year first before written.
EXECUTED AS A DEED by )
HALIFAX PLC )
acting by its attorney in )
the presence of: ) ............................
Witness's Signature: ...............................
Name: ...............................
Address: ...............................
SCHEDULE
47
SCHEDULE 9
HALIFAX MORTGAGE RE LIMITED MIG POLICIES ASSIGNMENT NOTICE
To: HBOS Insurance (PCC) Guernsey Ltd
c/o AON Insurance Managers (Guernsey) Limited
as Managers of HBOS Insurance (PCC) Ltd)
XX Xxx 00
Maison Trinity
Xxxxxxx Xxxxxx
Xx Xxxxx Xxxx
Xxxxxxxx XX0 0XX
[*]
Dear Sirs,
RE: ASSIGNMENT OF MORTGAGE INDEMNITY INSURANCE POLICIES NUMBERED [*]
RESPECTIVELY (THE MIG POLICIES)
We hereby give you notice that, by an Assignment dated [*] and made between
ourselves and Permanent Mortgages Trustee Limited (the MORTGAGES TRUSTEE) (a
copy of which is attached to this notice), we assigned all of our right, title,
benefit and interest in the MIG Policies to the Mortgages Trustee (to the extent
that they relate to the loans and the mortgages in a portfolio referred to in
[the Mortgage Sale Agreement dated [*], 2004 as amended and/or restated from
time to time between ourselves, Permanent Funding (No. 1) Limited, the Mortgages
Trustee and The Bank of New York/the New Portfolio Notice dated [*] between
ourselves, Permanent Funding (No.1) Limited and the Mortgages Trustee)]1.
Yours faithfully,
.............................................
For and on behalf of
HALIFAX PLC
Copy: Permanent Mortgages Trustee Limited
Permanent Funding (No. 1) Limited
The Bank of New York
_______________
1 Delete as applicable.
48
SCHEDULE 10
INSURANCE ENDORSEMENT
ON THE HEADED NOTEPAPER OF [THE RELEVANT INSURER]
ENDORSEMENT [X] attaching to, supplemental to and forming part of policy number
[policy number] (the POLICY) issued by [name of Insurer] (the INSURER).
Expressions defined in the Policy shall unless indicated otherwise, have the
same meanings in this endorsement.
It is hereby noted and agreed that with effect from the date of this
Endorsement:
1. The definition of INSURED shall be deleted in its entirety and replaced
with the following wording:
(a) "Halifax plc (HALIFAX) whose registered office is at Xxxxxxx
Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx, XX0 0XX;
(b) any assignee or person to whom Halifax has assigned (whether
legally or equitably and whether by way of security or otherwise)
or has declared a trust in respect of any loans and/or mortgages
and/or standard securities and related collateral and/or assets
to which this Policy relates (an ASSIGNEE) (whether or not any
such Assignee holds the same on trust for another or others); and
(c) any person benefiting from security granted by Halifax or its
Assignee over any loans and/or mortgages and/or standard
securities and related collateral and/or assets to which this
Policy relates in connection with the financing or re-financing
of such loans and/or mortgages and/or standard securities and
related collateral and/or assets."
2. Each term of the Policy which is inconsistent with the intent and/or
effect of the amended definition of INSURED contemplated in paragraph 1
above (the NEW DEFINITION) shall be subject to the New Definition and
shall not apply to the extent that such term of the Policy is
inconsistent with the New Definition.
3. This endorsement does not have, nor is intended by the parties to have,
the effect of conferring on the Insurer any greater liabilities under
the Policy than those of the Insurer immediately prior to this
endorsement being entered into between parties to this endorsement.
4. The Insurer acknowledges and agrees that any Insured under the Policy
may from time to time appoint Halifax or any other person as agent of
that Insured to deal with the Insurer on its behalf in the
administration of and making and payment of claims under the Policy.
All other terms, clause and conditions of the Policy remain unchanged.
This Endorsement is signed for and on behalf of the Insurer by a duly authorised
signatory:
.............................................
49
[Name]
[Position]
[Insurer]
Dated , 2004
50
SCHEDULE 11
INSURANCE ACKNOWLEDGEMENTS
PART 1
ON THE HEADED NOTEPAPER OF GE MORTGAGE INSURANCE LIMITED
To: Halifax plc (the SELLER)
Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxxxxxxx
XX0 0XX
Permanent Mortgages Trustee Limited (the MORTGAGES TRUSTEE)
00 Xxxxxxxxx
Xx Xxxxxx
Xxxxxx
XX0 00X
Channel Islands
Permanent Funding (No. 1) Limited (FUNDING 1)
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxx
XX0X 0XX
The Bank of New York (the SECURITY TRUSTEE)
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
[date]
Dear Sirs,
MORTGAGE INDEMNITY GUARANTY POLICIES NUMBERS [*] AND [*] (THE MIG POLICIES)
We refer to the transaction entered into or to be entered into between, inter
alios, each of the parties to whom this letter is addressed, pursuant to which:
(a) the Seller may assign or agree to transfer or declare a trust in
respect of its interest in properties which are (or may from time to
time be) covered by the MIG Policies to the Mortgages Trustee;
(b) the Mortgages Trustee may declare a trust over its interest in such
properties in favour of Funding 1 and the Seller; and
(c) Funding 1 may charge its interest in such properties to the Security
Trustee.
51
In consideration of the payment of (pound)1 made by each of the Seller, the
Mortgages Trustee, Funding 1 and the Security Trustee (receipt whereof is hereby
acknowledged), we hereby confirm that the arrangements set out in PARAGRAPHS (A)
to (C) inclusive above will not cause the MIG Policies to lapse or terminate
and, notwithstanding any such arrangements, we will continue to pay claims under
the MIG Policies in the same way and in the same amount as we would have paid
them, had the said arrangements not been entered into.
Yours faithfully,
FOR AND ON BEHALF OF GE MORTGAGE INSURANCE LIMITED
52
PART 2
ON THE HEADED NOTEPAPER OF HBOS INSURANCE (PCC) GUERNSEY LTD
To: Halifax plc (the SELLER)
Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxxxxxxx
XX0 0XX
Permanent Mortgages Trustee Limited (the MORTGAGES TRUSTEE)
00 Xxxxxxxxx
Xx Xxxxxx
Xxxxxx
XX0 00X
Channel Islands
Permanent Funding (No. 1) Limited (FUNDING 1)
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxx
XX0X 0XX
Bank of New York (the SECURITY TRUSTEE)
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx
X00 0XX
[*], 2004
Dear Sirs,
MORTGAGE INDEMNITY GUARANTEE POLICY NUMBERS 227001, 227001(A), 227002, 227003
AND 227006 (THE "MIG POLICIES")
We refer to the transaction entered into or to be entered into between, inter
alios, each of the parties to whom this letter is addressed, pursuant to which:
(a) all of the Seller's right, title, benefit and interest in the MIG
Policies (to the extent that the same relate to the mortgage loans and
their collateral security sold or to be sold by the Seller to the
Mortgages Trustee pursuant to a mortgage sale agreement to be entered
into between each of the parties to whom this letter is addressed)
shall be assigned by the Seller to the Mortgages Trustee;
(b) the Seller may sell and assign or agree to sell and assign or declare a
trust in respect of its interest in properties which are (or may from
time to time be) covered by the MIG Policies to or in favour of the
Mortgages Trustee;
53
(c) the Mortgages Trustee may declare a trust over its interest in such
properties in favour of Funding 1 and the Seller; and
(d) Funding 1 may charge its beneficial interest in such properties to the
Security Trustee.
In consideration of the payment of (pound)1 made by each of the Seller, the
Mortgages Trustee, Funding 1 and the Security Trustee (receipt whereof is hereby
acknowledged), we hereby confirm that the arrangements set out in PARAGRAPHS (A)
to (D) inclusive above will not cause the MIG Policies to lapse or terminate
and, notwithstanding any such arrangements, we will continue to pay claims under
the MIG Policies in the same way and in the same amount as we would have paid
them, had the said arrangements not been entered into.
Yours faithfully,
FOR AND ON BEHALF OF HBOS INSURANCE (PCC) GUERNSEY LIMITED
54
SCHEDULE 12
NEW PORTFOLIO NOTICE
Dated [ ]
1. It is hereby agreed for the purpose of this notice the PRINCIPAL
AGREEMENT shall mean the Mortgage Sale Agreement dated 14th June, 2002
as amended and restated on 6th March, 2003, 25th November, 2003, 12th
March, 2004, 22nd July, 2004 and as further amended and restated on
18th November, 2004 made between (1) HALIFAX PLC (the SELLER) (2)
PERMANENT FUNDING (NO. 1) LIMITED (FUNDING 1) (3) PERMANENT MORTGAGES
TRUSTEE LIMITED (the MORTGAGES TRUSTEE) and (4) THE BANK OF NEW YORK
(as the same may be or have been amended, varied or supplemented from
time to time with the consent of those parties).
2. Save where the context otherwise requires, words and expressions in
this notice shall have the same meanings respectively as when used in
the Principal Agreement.
3. In accordance with and subject to CLAUSE 4.1 of the Principal
Agreement, upon receipt by the Seller of the duplicate of this notice
signed by Funding 1 and the Mortgages Trustee, there shall exist
between the Seller, Funding 1 and the Mortgages Trustee an agreement
(the AGREEMENT FOR SALE) for the sale by the Seller to the Mortgages
Trustee of the New Loans and their Related Security more particularly
described in the Schedule hereto (other than any New Loans and their
Related Security which have been redeemed in full prior to the next
following Sale Date). Completion of such sale shall take place on [
].
4. The Agreement for Sale shall incorporate, mutatis mutandis, the
relevant provisions of the Principal Agreement.
.............................................
Signed for and on behalf of
HALIFAX PLC
[On duplicate:
We hereby acknowledge receipt of the New Portfolio Notice dated [ ], and
confirm that we are prepared to purchase New Loans as set out in that notice.
.............................................
Signed for and on behalf of
PERMANENT FUNDING (NO. 1) LIMITED
.............................................
Signed for and on behalf of
[PERMANENT MORTGAGES TRUSTEE LIMITED]
SCHEDULE
1. 2. 3. 4. 5.
55
Title No. (if Borrower Property Account No. Date of
registered) Postcode Mortgage
56
SCHEDULE 13
FORMS OF SCOTTISH TRANSFER
LAND REGISTER
We, HALIFAX PLC, incorporated under the Companies Acts (registered number
02367076) and having our Registered Office at Xxxxxxx Xxxx, Xxxxxxx, Xxxx
Xxxxxxxxx XX0 0XX (the TRANSFEROR) CONSIDERING THAT in terms of a Mortgage Sale
Agreement among us the Transferor, PERMANENT MORTGAGES TRUSTEE LIMITED, a
private limited company incorporated under the laws of Jersey, Channel Islands
(registered number 83116) and having its registered office at 00 Xxxxxxxxx, Xx
Xxxxxx, Xxxxxx XX0 0XX (the TRANSFEREE) and others dated 14 June 2002 as amended
and restated on 6 March 2003, 25 November 2003, 12 March, 2004 and 22 July 2004
and as further amended and restated on 18th November, 2004 (the MORTGAGE SALE
AGREEMENT) we have sold our whole right, title and interest in and to the
Standard Securities and others hereinafter mentioned to the Transferee NOW
THEREFORE we, the Transferor, IN CONSIDERATION of the sums payable in terms of
and in implement of the Mortgage Sale Agreement HEREBY ASSIGN to the Transferee
as trustee under and in terms of the Mortgages Trust Deed among us, the
Transferor, the Transferee and others dated 13 June 2003 as amended and restated
on 6 March 2003, 25 November 2003, 12 March, 2004 and 22 July 2004 and as
further amended and restated on 18th November, 2004 (the MORTGAGES TRUST DEED)
and its successor or successors as trustee or trustees under and in terms of the
Mortgages Trust Deed:
(a) the Standard Securities granted by the respective parties whose names
are specified in Column 3 of the Schedule annexed and executed as
relative hereto in favour of us the Transferor for all sums due and to
become due, to the extent of the sums specified in the relative entry
in Column 6 of the said Schedule being the amounts now due under the
said respective Standard Securities, registered said Standard
Securities in the Land Register under the Title Number specified in the
relative entry in Column 4 of the said Schedule on the date specified
in the relative entry in Column 5 of the said Schedule; and
(b) the whole rights, title and interest of us the Transferor in and under
all and any personal bonds, credit agreements or agreements for loan
(however constituted) secured by the said Standard Securities and
granted by or entered into with the said respective parties whose names
are specified in Column 3 of the said Schedule, the dates of the
respective personal bonds, credit agreements or agreements for loan
being specified in the relative entry in Column 7 of the said Schedule;
With interest from and also arrears and accumulations of interest due and unpaid
as at [ ]; And we grant warrandice: IN WITNESS WHEREOF these presents
typewritten on this [and the preceding] page are together with the Schedule
annexed hereto executed at [ ] on the [ ] day of [ ]
as follows:
SUBSCRIBED for and on behalf of HALIFAX PLC by
............................. .................... Authorised Signatory
(Print Full Name)
57
before this witness
............................. Witness
.............................
(Print Full Name)
.............................
.............................
(Address)
58
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING ASSIGNATION BY HALIFAX PLC IN
FAVOUR OF PERMANENT MORTGAGES TRUSTEE LIMITED
1 2 3 4 5 6 7
Account No. Address Borrowers Title Registration Sum Due Date of
Full Names Number Date Bond or
Loan Agreement
........................... Authorised Signatory
59
SCHEDULE 14
FORMS OF SCOTTISH TRANSFER
SASINE REGISTER
We, HALIFAX PLC, incorporated under the Companies Acts (registered number
02367076) and having our Registered Office at Xxxxxxx Xxxx, Xxxxxxx, Xxxx
Xxxxxxxxx XX0 0XX (the TRANSFEROR) CONSIDERING THAT in terms of a Mortgage Sale
Agreement among us the Transferor, PERMANENT MORTGAGES TRUSTEE LIMITED, a
private limited company incorporated under the laws of Jersey, Channel Islands
(registered number 83116) and having its registered office at 00 Xxxxxxxxx, Xx
Xxxxxx, Xxxxxx XX0 0XX (the TRANSFEREE) and others dated 14 June 2002 as amended
and restated on 6 March 2003, 25 November 2003, 12 March 2004 and 22 July 2004
and as further amended and restated on 18th November, 2004 (the MORTGAGE SALE
AGREEMENT) we have sold our whole right, title and interest in and to the
Standard Securities and others hereinafter mentioned to the Transferee NOW
THEREFORE we the Transferor IN CONSIDERATION of the sums payable in terms of and
in implement of the Mortgage Sale Agreement HEREBY ASSIGN to the Transferee as
trustee under and in terms of the Mortgages Trust Deed among us, the Transferor,
the Transferee and others dated 13 June 2002 as amended and restated on 6 March
2003, 25 November 2003, 12 March 2004 and 22 July 2004 and as further amended
and restated on 18th November, 2004 (the MORTGAGES TRUST DEED) and its successor
or successors as trustee or trustees under and in terms of the Mortgages Trust
Deed:
(a) the Standard Securities granted by the respective parties whose names
are specified in Column 3 of the Schedule annexed and executed as
relative hereto in favour of us the Transferor for all sums due and to
become due, to the extent of the sums specified in the relative entry
in Column 6 of the said Schedule being the amounts now due under the
said respective Standard Securities, recorded said Standard Securities
in the Register for the County specified in the relative entry in
Column 4 of the said Schedule on the date specified in the relative
entry in Column 5 of the said Schedule; and
(b) the whole rights, title and interest of us the Transferor in and under
all and any personal bonds, credit agreements or agreements for loan
(however constituted) secured by the said Standard Securities and
granted by or entered into with the said respective parties whose names
are specified in Column 3 of the said Schedule, the dates of the
respective personal bonds, credit agreements or agreements for loan
being specified in the relative entry in Column 7 of the said Schedule;
With interest from and also arrears and accumulations of interest due and unpaid
as at [ ]; And we grant warrandice: IN WITNESS WHEREOF these presents
typewritten on this [and the preceding] page are together with the Schedule
annexed hereto executed at [ ] on the [ ] day of [ ] as follows:
SUBSCRIBED for and on behalf of HALIFAX PLC by
........................... ...................... Authorised Signatory
(Print Full Name)
60
before this witness
.......................... Witness
..........................
(Print Full Name)
..........................
..........................
(Address)
REGISTER on behalf of the within named PERMANENT MORTGAGES TRUSTEE LIMITED as
trustee within mentioned in the REGISTERS of the COUNTIES of [ ]
61
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING ASSIGNATION BY HALIFAX PLC IN
FAVOUR OF PERMANENT MORTGAGES TRUSTEE LIMITED
1 2 3 4 5 6 7
Account No. Address Borrowers County Recording Date Sum Due Date of Bond or
Full Names Loan Agreement
......................Authorised Signatory
62
SCHEDULE 15
FORM OF SCOTTISH DECLARATION OF TRUST
DECLARATION OF TRUST
among
HALIFAX PLC, incorporated under the Companies Acts (registered number 02367076)
and having its Registered Office at Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxxx XX0
0XX (the SELLER);
and
PERMANENT MORTGAGES TRUSTEE LIMITED, a private limited company incorporated
under the laws of Jersey, Channel Islands (registered number 83116), and having
its registered office at 00 Xxxxxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX, Channel
Islands as trustee under and in terms of the mortgages trust deed aftermentioned
(the MORTGAGES TRUSTEE);
and
PERMANENT FUNDING (NO. 1) LIMITED, incorporated under the Companies Acts
(registered number 4267660) and having its registered office at Xxxxxxxxx Xxxxx,
Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX (FUNDING 1).
WHEREAS:
(A) Title to the Scottish Trust Property aftermentioned is held by and
vested in the Seller.
(B) In terms o a Mortgages Trust Deed entered into among the Seller,
Funding 1 an the Mortgages Trustee dated 13th June 2002 as amended
and restated on 6t March 2003, 25th November 2003, 12th March, 2004
and 22nd July, 2004 andas further amended and restated on 18th
November, 2004 andthe Mortgages Trust constituted in terms thereof,
the Mortgages Trustee holds the Trust Property on trust for the
Beneficiaries therein specified.
(C) In terms of a Mortgage Sale Agreement entered into among, inter alia,
the Seller, Funding 1 and the Mortgages Trustee dated 14th June 2002,
as amended on 6th March 2003, 25th November 2003, 12th March, 2004 and
22nd July, 2004 and as amended and restated on 18th November, 2004 (the
MORTGAGE SALE AGREEMENT) the Seller has agreed to sell inter alia the
said Scottish Trust Property to the Mortgages Trustee to be held
thereafter by the Mortgages Trustee under and in terms of the Mortgages
Trust;
(D) In implement of CLAUSE 4.5(A)(VII) of the Mortgage Sale Agreement and
pending the taking of legal title to the said Scottish Trust Property
by the Mortgages Trustee, the Seller has undertaken to grant this deed.
NOW THEREFORE the parties HEREBY AGREE and DECLARE as follows:
1. INTERPRETATION
In this deed:
63
(a) the amended and restated master definitions and construction schedule
signed by, amongst others, the parties to this deed and dated 18th
November, 2004 (as the same may be amended, varied or supplemented from
time to time with the consent of the parties to this deed) (the MASTER
DEFINITIONS AND CONSTRUCTION SCHEDULE) is expressly and specifically
incorporated into this deed 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 deed, including the Recitals and this
deed shall be construed in accordance with the interpretation
provisions set out in CLAUSE 2 of the Master Definitions and
Construction Schedule; and
(b) SCOTTISH TRUST PROPERTY shall mean the Scottish Loans and their Related
Security brief particulars of which are detailed in the schedule
annexed and executed as relative hereto and any Further Advances made
in respect of such Scottish Loans (the SCHEDULE), and all right, title,
interest and benefit of the Seller to:
(i) all payments of principal and interest (including, for the
avoidance of doubt, all Accrued Interest, Arrears of Interest,
Capitalised Expenses and Capitalised Arrears) and other sums due
or to become due in respect of such Scottish Loans and their
Related Security including, without limitation, the right to
demand, xxx for, recover and give receipts for all principal
monies, interest and costs and the right to xxx on all covenants
and undertakings made or expressed to be made in favour of the
Seller under the applicable Mortgage Terms;
(ii) subject where applicable to the subsisting rights of redemption
of Borrowers, all MHA Documentation, Deeds of Postponement, all
third party guarantees and any other collateral security for the
repayment of the relevant Scottish Loans;
(iii) the right to exercise all the powers of the Seller in relation
thereto;
(iv) all proceeds resulting from the enforcement of any of those
Scottish Loans and their Related Security;
(v) each Certificate of Title and Valuation Report relevant to those
Scottish Loans and any right of action of the Seller against any
solicitor, qualified conveyancer, valuer or other person in
connection with any report, valuation, opinion, certificate or
other statement of fact or opinion given in connection with any
of those Scottish Loans and their Related Security, or any part
thereof or affecting the decision of the Seller to make or offer
to make any of those Scottish Loans or part thereof;
(vi) the proceeds of all claims made by or on behalf of the Seller or
to which the Seller is entitled in relation to the Scottish
Properties secured by the Scottish Mortgages detailed in the
Schedule under the Buildings Policies and the Properties in
Possession Cover; and
(vii) the MIG Policies, so far as they relate to the relevant Scottish
Loans and their Related Security, including the right to receive
the proceeds of any claims.
64
2. DECLARATION OF TRUST
The Seller hereby DECLARES that from and after the date hereof the
Seller holds and, subject to CLAUSE 8 below, shall henceforth hold the
Scottish Trust Property and its whole right, title and interest,
present and future, therein and thereto in trust absolutely for the
Mortgages Trustee and its assignees (whether absolutely or in security)
whomsoever.
3. INTIMATION
The Seller hereby intimates to the Mortgages Trustee the coming into
effect of the trust hereby declared and created and the Mortgages
Trustee by its execution of this deed immediately subsequent to the
execution hereof by the Seller acknowledges such intimation.
4. DEALINGS WITH SCOTTISH TRUST PROPERTY AND NEGATIVE PLEDGE
The Seller warrants and undertakes that:
(a) as at the date hereof it holds, subject to any pending
registration or recording in the Land Register of Scotland or the
General Register of Sasines, legal title to the Scottish Trust
Property unencumbered by any fixed or floating charge, diligence
or other Security Interest;
(b) it shall not create or agree to create any fixed or floating
charge or other Security Interest over or which may attach to or
affect the whole or any part of the Scottish Trust Property or
otherwise dispose of the same at any time when such Scottish
Trust Property or part thereof remains subject to the trust
hereby created; and
(c) it shall deal with the Scottish Trust Property (including without
prejudice to said generality the calculation and setting of any
interest rate applicable thereto) in accordance with the
provisions of the Transaction Documents and the specific written
instructions (if any) of the Mortgages Trustee or its foresaids
and shall take, subject to Clause 8 below, any such action as may
be necessary (including for the avoidance of doubt the raising or
defending of any proceedings in any court of law whether in
Scotland or elsewhere) to secure or protect the title to the
Scottish Trust Property but only in accordance with the specific
written instructions (if any) of the Mortgages Trustee or its
foresaids.
5. TRANSFER OF TITLE
5.1 The Mortgages Trustee and its foresaids as beneficiary hereunder shall
have the right to call upon the Seller to execute and deliver to the
Mortgages Trustee, subject to the terms of CLAUSE 6 of the Mortgage
Sale Agreement, valid assignations of the Scottish Trust Property or
any part thereof, and that notwithstanding the winding up of the
Seller, the making of any administration order or the filing of
documents with the court for the appointment of an administrator or the
service of a notice of intention to appoint an administrator in respect
of the Seller or the appointment of a receiver to all or any part of
the Scottish Trust Property.
5.2 The Seller undertakes to the Mortgages Trustee and binds and obliges
itself that, upon the occurrence of any one of the events specified in
CLAUSE 6.1 of the Mortgage Sale Agreement, it will within five London
Business Days of such occurrence provide such information as is
necessary to enable the Mortgages Trustee to complete Scottish
Transfers
65
(including all schedules and annexures thereto) in relation to the
whole of the Scottish Trust Property.
5.3 For further assuring the said rights and powers specified in this
CLAUSE 5, the Seller has granted a power of attorney in favour of the
Mortgages Trustee, Funding 1 and the Security Trustee substantially in
the form set out in SCHEDULE 5 to the Mortgage Sale Agreement.
6. MORTGAGES TRUSTEE DECLARATION OF TRUST
The Mortgages Trustee by its said execution of this deed hereby
DECLARES that its whole right, title and beneficial interest in and to
the Scottish Trust Property in terms of this deed are and shall be held
(to the extent not already so held) by the Mortgages Trustee and its
foresaids under and in terms of the Mortgages Trust and all sums and
amounts received or held by the Mortgages Trustee relating thereto or
deriving therefrom have been and shall be added (to the extent
aforesaid) to the Trust Property and held by the Mortgages Trustee
under the Mortgages Trust Deed.
7. MORTGAGES TRUST INTIMATION
The Mortgages Trustee hereby intimates to Funding 1 and the Seller, as
Beneficiaries of the Mortgages Trust, the declaration of trust made in
terms of Clause 6 above and Funding 1 and the Seller by executing this
deed acknowledge such intimation.
8. TERMINATION OF TRUST
If:
(a) legal title to any part or parts of the Scottish Trust Property
is taken by the Mortgages Trustee or its foresaids in accordance
with the provisions of CLAUSE 5 above (which in the case of any
Scottish Mortgage shall be constituted by the registration or
recording of the title thereto in the Land Register of Scotland
or the General Register of Sasines (as appropriate); or
(b) any part or parts of the Scottish Trust Property forms the
subject of a repurchase in accordance with the terms of CLAUSE
8.5 of the Mortgage Sale Agreement,
the trust hereby declared and created pursuant to CLAUSES 2 and 3 above
shall (but only when any of the events or transactions before stated
has been completed irrevocably, validly and in full) ipso facto fall
and cease to be of effect in respect of such part or parts of the
Scottish Trust Property but shall continue in full force and effect in
respect of the whole remainder (if any) of the Scottish Trust Property.
9. CHANGE OF TRUSTEE
Except with the prior consent of the Mortgages Trustee and (for so long
as each retains any right or interest in the Scottish Trust Property)
Funding 1 and the Security Trustee, the Seller shall not be entitled to
resign office as a trustee or assume a new trustee or trustees under
this deed.
66
10. VARIATION
This deed and the trusts hereby declared and created pursuant to
CLAUSES 2 and 3 and CLAUSES 6 and 7 above shall not be varied in any
respect without the consent in writing of the Mortgages Trustee and
(for so long as each retains any right or interest in the Scottish
Trust Property) Funding 1 and the Security Trustee.
11. GOVERNING LAW
This deed shall be governed by and construed in accordance with the law
of Scotland and each of the parties hereby prorogates the non-exclusive
jurisdiction of the Scottish courts so far as not already subject
thereto and waives any right or plea of forum non conveniens in respect
of such jurisdiction.
12. REGISTRATION
The parties hereto consent to the registration of these presents for
preservation:
IN WITNESS WHEREOF these presents typewritten on this and the preceding [ ]
pages together with the Schedule annexed hereto are executed for and on behalf
of the Seller, the Mortgages Trustee and Funding 1 at [ ] on [ ] as follows:
SUBSCRIBED for and on behalf of
HALIFAX PLC by [ ], its
Attorney, at London on [ ] 2004 before this
witness:
................................Witness ........................... Attorney
(Signature) (Signature)
................................
(Print Full Name)
................................
................................
(Address)
67
SUBSCRIBED for and on behalf of
PERMANENT MORTGAGES TRUSTEE LIMITED by [ ],
one of its Directors, at London on [ ] 2004
before this witness:
................................Witness ............................Director
(Signature) (Signature)
................................
(Print Full Name)
................................
.................................
(Address)
SUBSCRIBED for an on behalf of
PERMANENT FUNDING (NO. 1) LIMITED by [ ],
one of its Directors, at London on [ ] before
this witness:
................................Witness ........................... Director
(Signature) (Signature)
................................
(Print Full Name)
................................
................................
(Address)
68
THIS IS THE SCHEDULE REFERRED TO IN THE FOREGOING DECLARATION OF TRUST AMONG
HALIFAX PLC, PERMANENT MORTGAGES TRUSTEE LIMITED AND
PERMANENT FUNDING (NO. 1) LIMITED
DETAILS OF SCOTTISH LOANS AND RELATED SECURITY
1 2 3 4 5 6 7
Account No. Address Borrowers' Title Registration/ Sum Due Date of
full names Number/ Recording Date Loan Agreement
County
................................ Attorney
Halifax plc
................................ Director
Permanent Mortgages Trustee Limited
................................ Director
Permanent Funding (No.1) Limited
69
APPENDIX 1
PART 1 INITIAL PORTFOLIO
PART 2 STANDARD DOCUMENTATION
70
APPENDIX 2
PART 1
INITIAL PORTFOLIO
This is Part 1 (on accompanying CD-ROM) of the Exhibit to a Mortgage Sale
Agreement dated 14th June, 2002 made between Halifax plc (1) Permanent Funding
(No. 1) Limited (2) Permanent Mortgages Trustee Limited (3) and State Street
Bank and Trust Company (4).
Xxx X Xxxxxxx
HALIFAX PLC
Xxxxx Xxxxx
PERMANENT FUNDING (NO. 1) LIMITED
Xxxxx Xxxxx
PERMANENT MORTGAGES TRUSTEE LIMITED
Xxxxx Xxxxxx
STATE STREET BANK AND TRUST COMPANY
71
PART 2
STANDARD DOCUMENTATION
This is Part 2 of the Exhibit to a Mortgage Sale Agreement dated 14th June, 2002
made between Halifax plc (1) Permanent Funding (No. 1) Limited (2) Permanent
Mortgages Trustee Limited (3) and State Street Bank and Trust Company (4).
Xxx X Xxxxxxx
HALIFAX PLC
Xxxxx Xxxxx
PERMANENT FUNDING (NO. 1) LIMITED
Xxxxx Xxxxx
PERMANENT MORTGAGES TRUSTEE LIMITED
Xxxxx Xxxxxx
STATE STREET BANK AND TRUST COMPANY
72